Saturday, February 22, 2020

More On Prosecutorial Immunity

Commenter mistcr offered an interesting take on the nature of the prosecutorial office:

Third, it is impossible to conceive of prosecutors as 'quasi-judicial officers.' They are unequivocally officers of the executive. In fact, as far as the bill of rights and individual liberties are concerned, prosecutors are the bared teeth and most naked expression of the power of the executive.

And yet, the SCOTUS in Imbler v. Pachtman, 424 U.S. 409 (1976) actually did describe prosecutors in exactly those terms: quasi-judicial officers. Check out some of Justice Powell's language in this 9-0 decision:

These courts sometimes have described the prosecutor's immunity as a form of "quasi-judicial" immunity, and referred to it as derivative of the immunity of judges ... 
Petitioner ... contends that ['the "quasi-judicial" characterization'] illustrates a fundamental illogic in according absolute immunity to a prosecutor. He argues that the prosecutor, as a member of the executive branch, cannot claim the immunity reserved for the judiciary, but only a qualified immunity akin to that accorded other executive officials in this Court's previous cases.
Petitioner takes an overly simplistic approach to the issue of prosecutorial liability.

It is the functional comparability of [a prosecutor's] judgments to those of the judge that has resulted in both grand jurors and prosecutors being referred to as "quasi-judicial" officers, and their immunities being termed "quasi-judicial" as well.

Without having at that time read the case, I responded to mistcr by surmizing that the characterization of prosecutors as 'quasi-judicial' derived from the notion of 'officers of the court.' I appear to have been correct, because Justice Powell also wrote this:

At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator, rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.

Let's see. Drawing a proper line between a prosecutor's executive functions ('administrative') and his function as an 'officer of the court' 'may present difficult questions.' No kidding? But rather than anticipating those difficult questions let's just go ahead and legislate from the bench: prosecutors get absolute immunity. After, it works for us judges, so why not for prosecutors--what could possibly go wrong? Of course, the facts of the case itself illustrated what could go wrong--the prosecutor had "knowingly used false testimony and suppressed material evidence at ... trial." And for that he should have absolute immunity ... just because? Go figure. You'd have to be a SCOTUS justice to understand the subtlety of that one.

For those of us with less subtle minds, let's refer to the Wikipedia article on officer of the court, since that seems to be the source of the notion that prosecutors should have absolute immunity. Here's what Wikipedia says:

In common law jurisdictions, the generic term officer of the court is applied to all those who, in some degree in the function of their professional or similar qualifications, have a part in the legal system. Officers of the court should not be confused with court officers, the law enforcement personnel who work in courts. 
Officers of the court have legal and ethical obligations. They are tasked to participate to the best of their ability in the functioning of the judicial system as a whole, in order to forge justice out of the application of the law and the simultaneous pursuit of the legitimate interests of all parties and the general good of society. 
Officers of the court can be divided into the following functional groups. In most case various synonyms and parallels exist as well as a variety of operational variations, depending on the jurisdiction and the changes in relevant legislation: 
Court proper 
Foremost those who make the decisions that determine the course of justice and its outcome: 
  • judges, magistrates and arbitrators,
  • prosecutors and crime victim advocates.
  • attorneys for each party – the Supreme Court of the United States held in Ex parte Garland[1] that "Attorneys and counselors are not officers of the United States; they are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private character." In some jurisdictions, such as England and Wales, independent advocates such as barristers are not officers of the court.[2]

So, from this we learn that prosecutors, as 'officers of the court,' have "legal and ethical obligations," and that they are tasked to "forge justice out of the application of the law" and in "pursuit of the ... general good of society."

Your first question is probably, what part of pursuing justice and the general good of society does, for example, knowingly using false testimony and suppressing material evidence serve? I was wondering about that, too. I would have thought that acting unmistakeably for purposes directly opposed to justice and the general good of society would mean that, ipso facto, you were no longer acting as an officer of any court that claimed to have those ends as their own.

Or here's another idea. How hard is it to understand that a prosecutor advances his career by getting convictions, and therefore might be tempted to attain that advancement by means of shortcuts that have nothing to do with justice and the general good of society? The incentives involved seem quite distinct from those of that operate for judges, so why would the SCOTUS think that prosecutors should enjoy the same type of immunity as judges? Go figure, hey?

But that's where our criminal justice system is.

Here's the good news. There's nothing in this that couldn't be fixed by Congress passing a law. In their spare time between impeachments.


  1. One would've hoped, that betraying one's obligations as an Officer would mean, that you were no longer acting as an authentic officer of any court, and that disbarment should be automatic, prior to being forced to compensate one's victims.

    If it's so crucial to "prevent the vigorous and fearless performance of the prosecutor's duty" (as it's put on Justia's "Imbler" page) , why not the same for duties of cops, or, for that matter, doctors?

  2. Worth a look is this article on PDJT’s flurry of new judges on the 9th District Circuit Court of Appeal, which has been traditionally Dem-leaning since Carter loaded it up years ago. And also the most reversed of the CCsofA, as I recall. This LA Times article is unintentionally humorous as it describes the gripes by those on the Court about these newcomers.

    It calls for turning off adblocker; I managed to access it by using reader mode. It’s worth it. BTW, it also highlights the main roadblock to less lefty judges: Diane Feinstein. I am already a fan of Judge Collins, who should be cloned.

    1. What comes through loud and clear is: It's a club.

  3. We have drifted so far from the stated purposes and aims of our Republic that the question that needs to be asked is not what should be burned to the ground in Washington, D.C., but, rather, what should be allowed to stand?

    1. The British Army torched the White House and various other government buildings, but left the Patent Office standing, when they invaded D.C. in 1812.

      Perhaps we can follow their lead?

    2. Keep the buildings, burn the occupants.

  4. "judges, magistrates and arbitrators,
    prosecutors and crime victim advocates.
    attorneys for each party –"

    So, that means that Flynn's previous attorneys have nothing to worry about. Right?

    1. Well actually they should worry. Absolute immunity only applies to prosecutors.

    2. We heard from the Liarcrats how no one is above the law. It appears that prosecutors are above the law.

      Rob S

  5. It will be interesting to see if Barr speaks up in regard to the recent murder of Philip Haney. This is clearly a case like Seth Rich, in which the local police will not conduct a real investigation and the Deep State will use all it's powers to bury the story as quickly as possible.

    At the very least, hopefully Barr will now come to understand that the battle he is waging is for keeps and not simply a civilized contest in a court of law.

    Just as Trump sent a signal with his timely pardons last week and appointment of Grenell, the Deep State is responding by upping the ante.

    Rocky road ahead. The faint of heart should stay at home. The field will belong to those who man up now.

    1. I'm waiting to hear more about this. I'll admit to misgivings about this, along the lines you indicate.

    2. Who What When Where Why ?

      Don't know anything about this...

    3. This will give you an overview:

    4. Haney was found with a bullet wound in his chest. Here is the article most refer to. Not in the MSM:

    5. More re Haney from an article just up at American Greatness. It appears that there’s been no decision as to homicide or suicide:

      Haney said internal memos showed that his investigation was shut down because he was allegedly engaging in “profiling” of radical Islamist groups.

      “The Obama Administration is more concerned with the rights of noncitizens in known Islamist groups, than with the safety and security of the American people,” Haney said in 2015.

      The whistleblower went on to reveal two months later in The Hill, that he was ordered to actually scrub records of Muslims with terrorism ties.

      Incredibly, then-president Obama threw DHS officials under the bus after the San Bernardino attack, faulting them for failing to “connect the dots.”

      Haney wrote: “This was not a failure to collect intelligence, it was a failure to integrate and understand the intelligence that we already had.”

      In June 2016, Haney testified before the Senate Judiciary Committee in a hearing titled, “Willful Blindness: Consequences of Agency Efforts To Deemphasize Radical Islam in Combating Terrorism.”

      He was planning to go on the road during the election campaign. His first target: Keith Ellison in Minnesota. He was intent upon keeping Muslims out of our government…

    6. That seems like an unusual way to commit suicide. I have no real idea, but it seems unusual.

    7. I heard he hung himself while he was shooting himself. Sounds legit.

      Rob S

  6. So...

    If you want to argue that prosecutors require immunity for the legitimate purpose of bringing cases before a court, I can agree with that. But not because they function as part of the court. The grand jury has a quasi-judicial role, but not the prosecutor. The prosecutor-as-executive requires immunity to safeguard against retribution when they are performing their regular duties in good faith. And I could even agree that this immunity must be absolute. But there must be a different principle upon which to base this immunity than the absurdity of prosecutor-as-judge.

    The justices said: Drawing a proper line between these [administrative and judicial] functions may present difficult questions, but this case does not require us to anticipate them.

    Doesn't this imply that there are more arguments to be heard on this topic?

    But I see that the case before them also had evidence suppression and false testimony... I would like to say they blew it, but with a unanimous decision all I can say is this is a pernicious doctrine. The kind of doctrine that leads directly to two-tiered justice, general discontent, and a revolutionary spirit.

    1. Yes, it's pernicious. It's getting more publicity now, but the abuses have been metastasizing for decades.

    2. It is a formal part of leftist strategy to supplant conservatives, the rule of law, and the constitution.

      They (Obama and Soros) actively seek and find local DAs who will take up the lawfare battle cry to take down conservatives at all levels of government.

  7. I guess some clarity is needed. Haney was a whistle-blower who attempted to do harm to the Obama Administration via disclosures. Durham is now getting to the point where flipping former Obama Administration officials is a real possibility. The Deep State message is crystal clear. Anyone flipping for Durham runs the risk of being suicided, so omerta.

    Roger Stone has been sentenced to 40 months in prison for, in part, attempting to intimidate a witness. Yet the Deep State commits murder in order to silence witnesses and no one at DOJ has stepped forward to announce a "righteous" investigation and prosecution. And the MSM says that Trump is being uncivil for pitching a bitch at this double-standard. How far we have fallen.

  8. Can the members of the Grand Jury be sued? Nullify the Grand Jury system?

    1. You do hafta wonder whether the time has come. Make the government officials truly responsible, instead of a secret jury that they manipulate.

  9. What would be a fun plot for a movie is a remake of " 12 Angry men" where they do jury nullification to the prosecutor. Starring Brad Pitt as Roger Stone.