Friday, February 21, 2020

The Problem Of Prosecutorial Immunity

Commenter Forbes has raised the issue of prosecutorial immunity--which is absolute immunity. Here is the Wikipedia definition:

Prosecutorial immunity is the absolute immunity that prosecutors in the United States have in initiating a prosecution and presenting the state's case. ... Prosecutors have qualified immunity in other activities such as advising police and speaking to the press.

This immunity is not a matter of statutory law--Congress has passed no law that grants prosecutors any such immunity. Rather, it was the SCOTUS that did the deed, in Imbler v. Pachtman, 424 U.S. 409 (1976).

I've come across a forum discussion on this topic at The Federalist Society. The discussion features one speaker who advocates abolishing this absolute immunity, while the second speaker favors retaining it. Because it's quite lengthy I've pasted in, below, only the first speaker. Follow the link to find out more--who the speakers are, what the defense of prosecutorial immunity amounts to, and so forth. I've also edited what was an excessively verbatim transcript (as you'll quickly see if you do follow the link).

I think many of you will find the presentation interesting. The first speaker gets into the Ted Stevens case before Judge Sullivan, so you'll be able to see in a very vivid way the direct relevance of this discussion to the Flynn case.

More generally, the speaker also addresses an issue that I've wondered about. The speaker points out that, strictly speaking, prosecutorial immunity only applies to actions undertaken in the course of the prosecutorial function. Not, for example, when the prosecutor was engaged in investigative activity.

Anyone who reads the reporting on the Russia Hoax and Team Mueller carefully will become aware that there were many instances when the FBI agents who were present at interviews seem to have been mere note takers--the actual questioning was done by prosecutors for Team Mueller. That's an investigative function, even though the FBI agent writes up the 302 and anyone who reads it will quite possibly be under the impression that the agent himself conducted the interview or was an active participant in the interview. That means, of course, that the prosecutor is a real witness. I wonder--am I the only person who finds that problematic?

An obvious exception to this was in the Flynn case, in which Flynn was interviewed by two FBI agents. But that interview was done under pretext of being a simple conversation rather than a true investigative action. To have sent a prosecutor along would have given the whole game away.

Also bear in mind, that while prosecutors argue that anything they do should be covered by immunity, that shouldn't stand. For example, submitting FISA applications is a purely investigative step, not a prosecutorial function.

Finally, it's interesting to note that Andrew Weissmann was in fact the subject of disciplinary action. The file on that has been sealed by a federal court. Apparently Weissmann persuaded a judge that no one would be interested in that file. Perhaps what follows will explain to you why he seems not to have learned anything from that experience but has instead become emboldened. The system--aided and abetted by our black robed masters--is massively corrupt.

So, here we go:

John G. Malcolm:  As Wesley just said we're here today to talk about prosecutorial immunity, which is a hotly debated topic. There is actually no statute that provides for prosecutorial immunity. Nonetheless, the Supreme Court recognized that prosecutors were entitled to at least some form of immunity in 1976 in the case of Imbler v. Pachtman. That was a unanimous decision, by the way. And providing some form of immunity definitely makes some sense. We do not, after all, want prosecutors or law enforcement officers for that matter second guessing every decision that they make out of fear of potentially incurring civil or criminal liability if they make a mistake.

On the other hand, there are those who believe that some, if not many, prosecutors act in bad faith by supporting perjury, withholding potentially exculpatory material and the like, when it comes to pursuing some individuals. Former Alaskan senator Ted Stevens, for instance. That case comes to mind. And these same people argue that prosecutors are able to sweep a wealth of sins under the rug by hiding under the cloak of immunity for their misdeeds.


Clark Neily:  Well thanks, John. Thanks to you and to Geoff and also the criminal law practice and group for [providing] the opportunity to talk about this important topic. The first thing we should do is understand what's at stake here. And what's at stake is whether there should be any meaningful accountability for prosecutors who violate people's rights, and in some cases, actually  manage to obtain unjust convictions by withholding evidence, making  improper statements to juries, or engaging in other misconduct. We know that this has happened. We know it happens not rarely but--and I wouldn't say frequently--but it happens more than we would want it to.  And we also know that the ability or the willingness of the system to impose discipline internally, is highly suspect. And I'll get into the numbers in a minute. But let's take a moment to step back and ask where prosecutorial immunity comes from.

In 1871, Congress enacted the Civil Rights Act of 1871. And we're most familiar with it today from section 1983 which is the shorthand for the provision of the Civil Rights Act of 1871 that provides a cause of action for people who have been injured through the deprivation of any right. Now this is for state actors only, so  state and local officials. There's a separate cause of action for people who, have been injured by the behavior or the misconduct of federal officials. And it's not statutory--it's based upon a law doctrine that the Supreme Court has  developed as an analog to section 1983 liability called the Bivens Doctrine.

We don't need to get hung up on the specific, doctrines at this point. What we do wanna look at is the actual language of section 1983, which does not include anything about immunities. It does not exclude any particular persons or classes of persons, from those who can be liable. And it says nothing about immunity. Now, the Supreme Court has taken that language and has, added to it a number of immunity doctrines, two of the most important of which are qualified immunity, which is the immunity that applies to most government officials and essentially provides that they will only be liable for violating the clearly established constitutional rights of a person. Not any constitutional right as the statute actually reads, but only clearly established constitutional rights.

The other major immunity doctrine that the Supreme Court has added to section 1983--or I should say--has read into section 1983, is absolute prosecutorial immunity, which is exactly what it sounds like: you cannot sue a prosecutor for anything that they do, in terms of making decisions about whether to bring charges, how to proceed, and what they do in a courtroom. There is at least some window of ability to sue prosecutors when they act in an investigative capacity. So in other words, when they are working with police officers doing things like interviewing witnesses or helping put together a case. There are significant problems with that. It's a much narrower exception than it might sound like and prosecutors have argued strenuously that the absolute prosecutorial immunity that they enjoy for essentially courtroom decisions essentially relates back to virtually anything they may have done in an investigative role. But put that aside, the key here is that prosecutors that the Supreme Court has determined that prosecutors should be absolutely immune from civil liability for conduct that they engage in, in the litigation or the run up to deciding to bring a case, and also what they do in court.

And this includes absolutely the most egregious conduct that you could imagine. This includes cases where prosecutors have deliberately proceeded against somebody that they know to be innocent, where they have fabricated evidence, where they have pressured witnesses into giving false statements in order to convict somebody that they know is innocent. And even if that conviction is ultimately reversed and the misconduct comes out and there's no doubt that it occurred, those prosecutors still cannot be sued. And that, in essence, is why it's I think such a controversial policy.

There are two questions, I think, that are relevant to this discussion. The first one is whether the Supreme Court's reading of absolute prosecutorial immunity into the text of section 1983 represents a faithful interpretation of the statute, or simply judicial policymaking. And I'll argue in just a moment that it is in fact blatant judicial policymaking, and it is a faithless interpretation of section 1983. The second question that's relevant is whether it's a good policy. So if it is the case, as I argue, that the Supreme Court is simply engaging in policymaking here, then the question is, is it a good policy? Or should we reconsider it? The answer to that is it's an extremely bad policy, and we absolutely should revisit it. And I'll just develop those two points in the next few minutes.

The Supreme Court essentially held that prosecutorial immunity is essentially an outgrowth of the judicial immunity that judges enjoy. So the supreme court looked back at the common law and saw that basically legislators and judges were in fact immune from civil liability for their official actions at the time that section 1983 was adopted ... or, I should say, the Civil Rights Act of-of 1871. And they consider prosecutors to be sort of quasi-judicial officers. So they sort of extended the immunity that judges enjoy, to clothe prosecutors.

Now, a very obvious question that those of us who consider ourselves to be originalists and think that history is relevant in this context should ask is, what was actually going on at the time? Were prosecutors in fact immune from civil liability in 1871? And the answer is, no. Absolutely not. In fact, the first, case in which a prosecutor was found to be immune from civil liability was 25 years later in 1896. And there is abundant evidence that one of the concerns that Congress had when it enacted the Civil Rights Act of 1871 was precisely the misconduct of prosecutors, particularly in the South.  And there was abundant evidence that Southern prosecutors were using state criminal law to go after former Union officers and others who were attempting to facilitate the exercise of liberty on the part of newly freed slaves. So the  the historical record is quite clear. Congress intended to provide a remedy against state prosecutors who were abusing their power in 1871. And the Supreme Courts essentially reading back of cases that came far after the adoption of the Civil Rights Act is transparently ends-oriented, and unpersuasive.

So the first point is that prosecutorial immunity does not represent a faithful reading of the texts of the relevant texts of the Civil Rights Act of 1871, or what we now call 1983. And is in fact, directly contrary to the historical practice of the time.

The second question is whether this is good policy, since it is nothing more than judicial policymaking. And the answer to that is, No, for a variety of reasons.  But the most important reasons are this. We know there is significant prosecutorial misconduct. We have no idea how much in large measure because so much of what prosecutors do these days is behind closed doors. Essentially, the prosecutorial function has become black boxed in large measure because the vast majority of federal criminal convictions, actually federal and state criminal convictions, are obtained through plea bargain. At the federal level, it's about 97%. At the state level, it's about 95% or 96%. So most cases criminal cases are resolved through plea bargain with very little involvement by judges, virtually no involvement in the run of cases by citizen juries, as the system was intended and designed to do. And so we just sort of have to hope for the best.

The problem is, is there is increasing reason to believe that there is more misconduct than we may have supposed.  Judge Kozinski famously observed that Brady violations--and Brady is an important provision of criminal procedure that requires prosecutors to disclose evidence favorable to the defense. Judge Kozinski believed that Brady violations are rampant. Any number of other professors and experts have affirmed that view, or at least have said that that's their impression as well. Again, we don't know for sure because most of what happens in a prosecution happens behind a closed door and we simply don't know how much misconduct there is.  But there's reason to be concerned.

We do know, for example, the Innocence Project and other groups have undertaken efforts to exonerate, criminal defendants. And there have been hundreds of exonerations. And about 50% of the time when, someone has been convicted of a crime is exonerated, about 50% of the time, the reason for that false conviction was some form of prosecutorial misconduct. So we know it's not rare. We know it's not episodic. We just don't know how often it happens.

Finally, in the so-called Imbler v. Pachtman case from 1976 where they announced the doctrine of prosecutorial immunity, the Supreme Court said that there are other means by which prosecutors can be disciplined and held accountable if they engage in misconduct. That's true in theory but not true in fact. There have been abundant studies, at least 10 or a dozen studies in which there's been an effort to determine what actually happens to prosecutors who have been determined, not accused, but determined by a court to have engaged in misconduct either because a conviction has been reversed or because of some other incontrovertible evidence. And it appears that the consensus among these studies is that, it is very difficult to docent any disciplinary action resulting when prosecutors are shown to have engaged in misconduct. And it's clear that the rate is something less than 1% in all the of studies that I have read.

So that's deeply problematic, and it shows that there isn't sufficient accountability. And the only real means of ensuring accountability would be to at least give some ability for individuals who have been injured by really gross misconduct--and I would say demonstrable misconduct--to have a civil remedy that is currently foreclosed by a Supreme Court precedent.

I'll close by saying this. Absolute prosecutorial immunity is a particularly ironic and unfortunate policy in this context. Why? Because of the office and the ... prosecutors and what they stand for. Prosecutors stand for the general proposition that punishment, when people misbehave, should be swift and certain. And that seems to be true of everybody but prosecutors themselves. And they should not be the one exception to that rule. So it's time to abolish absolute prosecutorial immunity, to recognize it's nothing more than rank judicial policymaking by the Supreme Court, and bad policymaking at that. And the decision about when and under what circumstances prosecutors should be civilly liable for their misconduct should be left to the body whose business it is in the first place, and that's Congress. Thank you.


  1. OT I thought you might find this of interest:

    "Paul Sperry
    Turns out Eric Holder works with the father of the AUSA who signed the McCabe get-of-jail-free card. Her father and Holder are partners at Covington & Burling LLP in Washington"

    Wasn't that Flynn's lawyer?

  2. It seems to me, this immunity protects them only from criminal liability. It doesn't see to protect them from civil liability.

    Rob S

    1. On the contrary:

      "the Supreme Court has determined that prosecutors should be absolutely immune from civil liability for conduct that they engage in, in the litigation or the run up to deciding to bring a case, and also what they do in court."

      That's the whole argument above, that there SHOULD be a civil remedy. There isn't now:

      "the only real means of ensuring accountability would be to at least give some ability for individuals ... to have a civil remedy that is currently foreclosed by a Supreme Court precedent."

  3. I don’t like qualified immunity, it makes child protective services so terrifying.

  4. Interesting post, Mark

    A couple of thoughts:

    1 As seems often to be the case Trump. and Trump's presidency, is a lightning rod calling attention to the ways our system has been materially corrupted over the years by the New Elites.

    2 I can easily imagine the Columbia law professor you and I wrote about a few days ago, Herbert Wechsler, applauding the 1976 Imbler case. But wasn't it a perfect example of the Supreme Court making law where Congress had not acted?

    3 "Finally, it's interesting to note that Andrew Weissmann was in fact the subject of disciplinary action. The file on that has been sealed by a federal court. Apparently Weissmann persuaded a judge that no one would be interested in that file." Was this the Stevens case? Is the record of the disciplinary action really not available? Its hard to imagine why an inquiry into prosecutorial misconduct would (should) not be a matter of public record.

    4 The most blatant recent example of prosecutorial misconduct I can think of was the actions of DA Michael Nifong in the disgraceful Duke Lacrosse case. Nifong clearly committed 'prosecutorial misconduct' but it appears that the legal tools ultimately used to punish him were primarily ethics charges, removal from office, contempt of court proceedings and disbarment, not civil or criminal actions. See:

    5 I would certainly consider ethics charges against Mueller's legal team, based perhaps on the apparent facts that Mueller and his associates definitively knew that there was no evidence of wrongdoing (collusion) by Trump or his campaign before they started their investigation.

    1. #3 No, Enron:

      #5: I would too, based on the fact that the prosecutors seemed to be intimately involved in purely investigative activity in many instances. George Papadopoulos' arrest and interrogation is a good example.

  5. I'm no lawyer and I want to make clear that I'm not disuputing you, Mr. Wauck.

    The Founding Fathers never intended to provide immunity to rogue prosecutors. To good-faith errors, maybe. The thought was probably in a case where a prosecutor had a good case but the defendant was acquitted, which is (or at least used to be often.) I'm sure they didn't want every acquitted defendant turning around and suing.

    The Deep State is good at finding and exploiting loopholes.

    1. Joe, the argument of speaker #1 is that this has zero to do with the Founding Fathers and there's no loophole or anything of the sort--this is totally something that the SCOTUS pulled out of its ass with no justification. They were doing policy rather than law, and got it very, very, wrong.

  6. It's hard to overstate the outrageousness of this.

    First, half the bill of rights deal with, in essence, prosecutorial abuse.

    Second, most judges began as prosecutors, so there's more than a little conflict of interest here.

    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.

    As an aside, isn't this the same court that created the right to abortion? They were certainly not shy about legislating from the bench. But what is the recourse from something as strong as a 9-0 SC decision?

    1. I agree with everything you're saying. I suspect--without having read the opinion--that the thinking behind the decision stems from the traditional notion of 'officers of the court'.

      I'll do a post on that to illustrate how misguided absolute immunity is.

  7. It's quite striking, that SCOTUS pulled out of its ass with no justification, just a few years after emergence of revelations, of *major* abuses by the D.S. agencies, incl. of investigatory powers targeting innocent citizens.
    I'd have thought, that the MSM would've given folks like Dersh a fair chance, to raise hell vs. this unanimous Imbler v. Pachtman ruling.

    "Court said that there are other means by which prosecutors can be disciplined....".
    This a particularly specious argument, w/o a major analysis of the power of these means, esp. under circumstances of recent occurrances of major abuses.