If I were the attorney for Murtha, one critical legal arguments I would make would be the Speech & Debate clause. At the end of the day, I don't think it should apply since the statements at issue were made in press conference, but it'd be an argument worth making since it might stick.
A more formidable argument would be respondeat superior coupled with sovereign immunity. It's well-settled law that an employer is liable for the tortious acts of his employees, and that the employee is indemnified by his employer. Murtha is unquestionably an employee of the Federal Government, and equally unquestionably, the Government is immune from civil suits under most circumstances. I have the sense that this will be fatal to Mr. Sharratt's claim for relief.
The third hurdle he will have to clear is the merits of the case. The problem is that defamation suits require that the plaintiff show that the defendant either knew that his statements were false, or acted with a reckless disregard for the truth. Unfortunately for Sharratt, the Haditha allegations were credible - even if exaggerated. Murtha's claims, while sensational and clearly the most extreme interpretation of questionable facts in Haditha, were not so unrealistic to qualify (IMHO) as a "reckless disregard for the truth."
I hope I'm wrong - I'd love to hear otherwise from an attorney who practices in defamation law - but my training suggests that this case will be very difficult to win. Hopefully Sharratt's civil attorneys have a good game plan to get through the summary judgment stage.
Unfortunately, it will be buried in a 1 inch blurb in the travel section
The Supreme Court has ruled (in the Proxmire “Golden Fleece” case) that there are limits to the “speech and debate” clause.
Still, you’re right a defamation case will be difficult. The lawyers for SSgt Wuterich won a victory when a judge ordered Murtha to appear at a deposition. However, DoJ lawyers (yes, they’re on Murtha’s side) are currently appealing that decision.
If the litigation doesn’t work, can we hook Murtha’s feet to a chain and drag him around the block a couple of times? Just to roughen him up a bit so the tar and feathers won’t slide off his porcine hide quite so easily?
The intent of that clause is for any and all utterance made during discussions and statements pertaining to business on the Floor of their respective Chamber. It was never meant to apply outside of there, and definitely not at a Member's Campaign Headquarters, as Murtha's was. Indeed, the USSC has stipulated that in Proxmire; bringing it up again is a waste of time and treasure to all involved.
Here we have a situation wherein the lawyers have perverted the true intent of the Constitution and its meaning in governance. Murtha is the Representative of his District, and as such is employed and paid by them. The Bank is the holder of my funds, but does not own them; so too the Fed is the disburser of the funds necessary for Murtha's salary and benefits. If anything, Murtha can be considered an employee of the State.
Murtha is not some First Year member, picking his way through the arcane brambles of the legal thicket. His statement was made from his campaign office, and as the timeline shows, was made prior to any valid briefing from competent authority. He acquired and disseminated pernicious propaganda planted by those intending to do harm to the US. His willful failure to verify and quantify that propaganda, and his intentional obfuscation of how he came into possession of that information gives credence to the Sharratt and SSgt Wuterich's claims.
I hope both suits are successful, and are able to put the rest of the hierarchy on notice that they are responsible for their statements and actions outside of their assigned positions. That the DoJ is 'supporting' Murtha is not a true characterization, anymore than a lawyer defending a murderer is condoning his clients acts. I do not begrudge Murtha's use of legal counsel; I do expect that counsel to be legitimate.