Jimmy Carter and several senators once were sued for "giving away" the Panama Canal. A few weeks ago, convicted Sen. Harrison A. Williams Jr. (D-N.J.) charged several of the Abscam prosecutors and FBI agents with violating his constitutional rights. Edward Levi still is a defendant in suits brought while he was attorney general in the Ford administration.
About 1,500 suits remain pending against about 7,500 past and current federal officials for alleged misconduct in their official capacities.
Today, before a House Judiciary subcommittee, Deputy Attorney General Edward C. Schmults is to testify in support of a bill that would substitute the U.S. government for individual defendants in cases alleging constitutional violations. The Carter administration pushed similar amendments to the Federal Tort Claims Act.
The government is immune from suits claiming constitutional wrongs. Schmults said in a recent interview that changes in current law are necessary to free federal employes from the threat of individual liability that might deter them from taking vigorous action and doing their jobs properly.
Schmults said the general counsel at the Office of Personnel Managagement has complained that federal managers are reluctant to discipline employes because they fear suits. "We want to relieve this burden, this anxiety, this distraction," he said.
Opponents of the bill, such as Jerry Berman of the American Civil Liberties Union and Mark Lynch, who represented former Nixon administration aide Morton Halperin in suing Henry Kissinger over wiretaps, say individual liability is exactly what is needed.
"This bill would have made Nixon and Kissinger unaccountable," Lynch said yesterday. "To say that proper law enforcement activity is being chilled by such suits is a lot of nonsense," he added. "The FBI has carried out some of its most aggressive and imaginative investigations in the past few years."
Schmults said deterrents are present in the criminal laws and administrative disciplinary proceedings against officials who abuse their power. Officials acting in good faith have a defense for alleged constitutional violations, he noted.
In the meantime, he said, defenses of such individual suits tie up valuable government attorney time, resulting in government expenditure of $2 million since 1976 to pay private attorneys in cases with multiple defendants and conflicting defenses.
Schmults said the administration is concerned most by the potential threat of a suit rather than money damages. Only nine cases have resulted in money damages against a government official, Schmults added. "They're almost impossible to settle. The whole issue has become a litigative nightmare, now bordering, quite frankly, on the ridiculous."
Schmults said the administration is proposing two changes to existing bills that probably will be seen by critics as weakening plaintiffs' rights. A bill introduced by Rep. George E. Danielson (D-Calif.), chairman of the administrative law and governmental relations subcommittee, waives the "good faith" defense for the new government defendant. The administration would keep it.
The administration also proposes to delete provisions from prior bills that allow plaintiffs to appeal administrative discipline findings to the federal courts, Schmults said.