D.C. lawyer Mark Zaid found himself in a rare position today standing before a three-judge appellate panel as the appellee. Usually he’s on the opposite side. When he said he wanted to soak in the moment, Judge Judith Rogers, sitting with Judges Karen LeCraft Henderson and Harry Edwards, smiled.
Zaid was in the U.S. Court of Appeals for the D.C. Circuit arguing that Rep. John Murtha (D-Pa.) should not be granted absolute immunity for statements he made about the deaths of Iraqi civilians in Haditha in 2005. Murtha, according to court records, has compared the deaths to the My Lai massacre in Vietnam. Staff Sgt. Frank Wuterich, who is suing Murtha on a defamation claim, is charged with manslaughter. His case is pending in military court.
A federal district judge last year ordered a deposition of Murtha as part of discovery in Wuterich’s defamation suit. An assistant U.S. attorney, Darrell Valdez, who is defending Murtha, appealed the order to the D.C. Circuit arguing that Murtha has immunity for statements made in the scope of his employment.
The D.C. Circuit must decide first whether it has jurisdiction. Edwards said the court does not generally take interlocutory review on discovery matters “especially when they are in a preliminary posture like this.” The government, Edwards said, has a “real problem” in trying to block discovery.
But when it came time for Zaid to pitch his case, Edwards criticized the plaintiff’s complaint, which alleges Murtha should be held liable for defamation for remarks he made to reporters over the course of weeks. Edwards said of the complaint: “There’s nothing there.” A deposition, Zaid said, would reveal who Murtha spoke to—and where he made the statements—about Wuterich and the events in Haditha. "We don't know what we don't know," Zaid said. A question on appeal is whether talking to reporters during non-business hours still falls into the scope of Murtha’s employment as a congressman.
Murtha’s statements were made in the context of exploring the war in Iraq, and “you can’t get any more public than that,” Valdez argued. Contradictory and even embarrassing statements—in the context of issues of public concern—are “part and parcel” in the political arena. Murtha was not in court today. The context in which a politician makes a statement is the relevant factor, Valdez said. Edwards said it’s not “unusual” that a politician would speak out—perhaps making statements that are not in line with colleagues—to appease constituents. “It’s like, so what? That’s what people in Congress do.” Constituents, the judge said, "love it."