Thursday, February 20, 2020

Someone Should Tell Trump About Prosecutors' Absolute Immunity

by Michael C. Dorf

I believe myself to be, overall, a pretty good parent, but like most parents, I've said or done things I regret. A low point for me came when my then-five-year-old daughter was resisting being dropped off for the first day of a half-day summer day camp at the local Y. I had a work meeting for which I was late and she was grabbing onto my leg and refusing to go with the "nice lady" (a teenage counselor) to play with the other five-year-olds. After my various efforts at coaxing and cajoling had failed, I resorted to a threat. "I guess I'll have to call the police," I said sternly.

My daughter looked at me and said with disdain and anger: "This is not the kind of thing you call the police for." She was right, of course. Needless to say, I did not call the police, and eventually she calmed down.

Knowing who can be held accountable for what by whom and in what way is much of what knowing about the law entails. Accordingly, I was proud of my daughter for intuitively understanding the scope of the criminal law and how it differs from the mechanisms available for resolving other sorts of disputes. I would like to say she was precocious in that regard, but upon reflection, I would acknowledge that even an average five-year-old would probably be surprised by a parent actually calling the police in response to a minor temper tantrum.

Which brings me to our President, who, one would think, ought to have at least as good an understanding of the legal system as an average five-year-old, because: (a) he's 73 years old; (b) he or one of the companies he runs have been parties in literally thousands of lawsuits; and (c) he's, uhm, the President. One would think that, but one would be wrong.

Surely, the chief law enforcement officer in the country should know something about the US legal system, and Trump thinks he is the chief law enforcement official. Unless one subscribes to a very extreme version of the so-called unitary executive theory, that's not true; the Attorney General is the chief law enforcement officer. But even if Trump is only the guy who appoints the chief law enforcement officer and federal judges with the advice and consent of the Senate, one would expect him to have some understanding of what law enforcement entails. And again, one's expectation would be disappointed.

Professor Buchanan noted earlier this week how Trump is always claiming this or that absolute right to do whatever he wants. These statements combine bluster with a penchant for authoritarianism. In one respect, however, they get at an element of truth. Trump--who does not know how many articles the Constitution contains or what most of them are (because reading)--typically cites Article II as the source of his absolute rights. Article II confers powers, not rights, and they're not absolute, but Trump is correct in a certain sense about some of the powers of the Presidency.

In Marbury v. Madison itself, Chief Justice John Marshall announced that the discretionary acts of executive officials "are only politically examinable." Importantly, and contrary to the Trumpean assertions, Marshall immediately added a very substantial qualifier: "But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy." Still, Marshall's acknowledgment of what would come to be called the political question doctrine and related doctrines could be said to support the Trumpean assertion of absolute power--in particular domains and the sense that no court will hold the President or his agents accountable.

Most government officials who are sued for alleged violations of constitutional rights have qualified immunity--they are liable in damages only if a reasonable officer in their shoes would know that the conduct was unconstitutional, not based simply on an after-the-fact judicial assessment. However, legislators, judges, and prosecutors have absolute immunity against civil damages for alleged rights violations occurring during the conduct of their official duties. Absolute immunity is thought to be justified (by those who think it justified) on the ground that persons responsible for these core governmental functions--making, interpreting, and enforcing the law--will so frequently act against the interest of various people who might choose to sue, that absent absolute immunity, the relevant actors will be over-deterred from doing their jobs.

Here is how Justice Powell, writing for the Court in the leading prosecutorial immunity case, Imbler v. Pachtman, put the point:
the honest prosecutor would face greater difficulty in meeting the standards of qualified immunity than other executive or administrative officials. Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.
Maybe that's wrong. Maybe even qualified immunity is unalwful (as Prof Will Baude has argued) and/or unwise as a matter of policy (as Prof Joanna Schwartz has argued). But for now, at least, the qualified immunity of most government officials and the absolute immunity of prosecutors are indubitably the law.

Thus it was a stunning display of ignorance when on Tuesday of this week, the President tweeted about the prosecutors of Roger Stone, some of whom had previously worked on the Mueller investigation, "If I wasn’t President, I’d be suing everyone all over the place," adding "BUT MAYBE I STILL WILL. WITCH HUNT!"

Yet whether the plaintiff is the President or anyone else, under Imbler a lawsuit against prosecutors for acting within the broad scope of their authority will be dismissed on absolute immunity grounds. Imbler itself involved allegations that the prosecutor knowingly used false testimony against the plaintiff at the latter's criminal trial--which is pretty much what Trump claims in rooting his WITCH HUNT contention. The Twitter thread that contains Trump's threat to sue "everyone all over the place" begins with the (needless to say, unwarranted) claim that "the whole Mueller investigation was illegally set up based on a phony and now fully discredited Fake Dossier, lying and forging documents to the FISA Court, and many other things."

So Trump's threat to sue is idle. His lawsuit would be squarely precluded by Imbler.

By now, gentle reader, you might be wondering what my point is. That Trump is an ignoramus? Surely we don't need further evidence of that.

Fair enough. My point here is that Trump's ignorance with respect to prosecutorial immunity is especially interesting, given the extremely broad view of Article II he has articulated. Recall that Marbury involved the acts of the President's agent--Secretary of State James Madison--rather than the President himself. CJ Marshall saw the immunity to judicial examination of discretionary acts of those agents as protecting the President's prerogative. Today, prosecutorial immunity works the same way. It protects the executive branch and ultimately the President's supervisory authority and obligation to take care that the laws are faithfully executed. A President who really cared about preserving a broad scope of unreviewable executive authority would support prosecutorial immunity, not seek to undermine it.

But Trump doesn't care about executive authority. He cares about Trump's authority. His empty threat to sue the Stone and/or Mueller prosecutors is thus further evidence of his megalomaniacal authoritarianism.

Postscript 1.  One might object to the foregoing on the ground that Imbler is not rooted in Article II, because it involves a state defendant. That objection would be misplaced, because the same principles that the Court invokes in Imbler are also invoked in cases more clearly grounded in Article II, especially Nixon v. Fitzgerald, which repeatedly cites Imbler.

Postscript 2.  One might alternatively defend Trump's tweet as not attacking prosecutorial immunity generally but only with respect to prosecutors (like those of the Mueller investigation) who work outside the direct supervision of the AG and President. That's not credible. First, Mueller did not operate outside the DOJ. Second, the Stone prosecution was conducted within the DOJ. Third, nothing about Trump's tweet or anything else shows any awareness of prosecutorial immunity at all, much less this distinction. Fourth, Trump's willingness to dump on anyone and everyone--especially his own appointees--totally undercuts any such distinction.