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.

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:

Briefly Noted: The Devin Nunes Interview With Laura Ingraham

Yesterday Devin Nunes was interviewed by Laura Ingraham. As summarized at CTH, Nunes began by listing three areas of particular concern (my comments follow each numbered item:

(1) The targeting/framing of Michael Flynn ...

That Flynn was targeted and framed by holdover Obama operatives, including Sally Yates at DoJ and James Comey and Andrew McCabe at the FBI is clear enough. Apparently Flynn's guilty plea was motivated by family concerns, especially the threatened prosecution of his son. However, there have been persistent credible reports that McCabe persuaded the two agents who interviewed Flynn--Peter Strzok and Joe Pientka--to change their 302 report to make it more damaging to Flynn. While Team Mueller was still operative they were able to keep Strzok and Pientka insulated from inquiries by IG Horowitz, but now Pientka is being interviewed by Horowitz's investigators. Flynn's sentencing has been repeatedly delayed, but these new developments could impact even the guilty plea itself. Stay tuned.

(2) The use of Joseph Mifsud as an asset by the CIA/FBI running a counterintelligence operation against the Trump campaign.

In the interview, Nunes is adamant about the need to learn more about Mifsud--which has proven exceptionally difficult because a Western intelligence service is reported to have given him a new identity and is hiding him from official investigators. Amusingly, Nunes reports that Team Mueller--in the face of all evidence--continues to maintain that Mifsud was a Russian agent. This as well as the whole Steele issue is an area that is ripe for the application of some serious diplomatic pressure to gain access to these two intel operatives.