The Supreme Court’s horrendous and unnecessary ruling on Presidential Immunity was quite predictable. The nation’s highest court has previously granted immunity to prosecutors, judges and police officers.
The Supreme Court has held that use of force by police and correctional officers violates the Fourth Amendment when it is deemed to be “excessive.” Police and correctional officers however, receive qualified immunity if it isn’t clearly established that their use of force was excessive. According to the Supreme Court, while qualified immunity “do[es] not require a case directly on point,” it does require that “existing precedent must have placed the statutory or constitutional question beyond debate.”
For example, in 2014, in an opinion by Justice Samuel Alito, the Supreme Court held in Plumhoff v. Richard, 572 U.S. 765 (2014), that police officers didn’t use excessive force in violation of the Fourth Amendment when they shot and killed the driver of a fleeing vehicle to end a dangerous car chase. The court also held that even if the officers used excessive force, they were entitled to qualified immunity because it wasn’t clearly established that shooting the driver in these circumstances amounted to excessive force. The officers could have shot at the tires of the car, stopped the car and arrested the man, but shot at and killed the driver. The Supreme Court overturned the Sixth Circuit’s ruling that ruled that there was excessive force. The Sixth Circuit, sitting in Cincinnati, Ohio, covers Ohio, Michigan, Kentucky and Tennessee and is not known for liberal rulings.
“Prosecutorial immunity” is a judge-made doctrine that cloaks prosecutors in near-absolute immunity from suit. Under this doctrine, prosecutors cannot be sued for any actions related to their job as a prosecutor, no matter how egregious the behavior. For example, prosecutors cannot be sued for knowingly prosecuting an innocent person, withholding evidence of innocence, or even fabricating false evidence of guilt.
Prosecutorial immunity is an absolute shield against damages lawsuits for claims that arise from prosecutorial actions. Believing that the constant worry of lawsuits would impede a prosecutors’ ability to do their job, in its 1976 decision Imbler v. Pachtman, 424 U.S. 409, the Supreme Court created this immunity to serve the “public trust” and ensure “the proper functioning of the criminal justice system.”
Instead, experience shows that this immunity enables prosecutors to disregard constitutional rights in order to pursue convictions. Examples of prosecutors escaping liability are ubiquitous in the United States. For example, the Second U.S. Circuit Court of Appeals recently ruled that a group of nurses could not sue Suffolk County prosecutors who hid evidence and engaged in other misconduct as a political favor.
Similarly, a Maryland court held in 2021 that a prosecutor could not be held personally accountable for withholding lab test results proving that a man jailed for allegedly flying with methamphetamines was in fact carrying only honey, just like he said. In both cases, prosecutors withheld the truth to serve their own interests, and they were never held to account for their violations because of prosecutorial immunity.
Stump v. Sparkman, 435 U.S. 349 (1978), is the leading United States Supreme Court decision on judicial immunity. It involved an Indiana judge who was sued by a young woman who had been sterilized without her knowledge or consent as a minor in accordance with the judge’s order. The Supreme Court held that the judge was immune from being sued for issuing the order because it was issued as a judicial function. The case has been called one of the most controversial in recent Supreme Court history.
In 1971, Judge Harold Stump granted a mother’s petition to have a tubal ligation performed on her 15-year-old daughter, who the mother alleged was “somewhat retarded.” The petition was granted the same day that it was filed. The judge did not hold a hearing to receive evidence or appoint a lawyer to protect the daughter’s interests. The daughter underwent the surgery a week later, having been told that she was to have her appendix removed.
The daughter married two years later. Failing to become pregnant, she learned that she had been sterilized during the 1971 operation. The daughter and her husband sued the judge and others associated with the sterilization in federal district court.
The district court found that the judge was immune from suit. The Seventh Circuit Court of Appeals reversed the decision, holding that the judge had lost his immunity because he failed to observe “elementary principles of due process” when he ordered the sterilization. Finally, in 1978, the U.S. Supreme Court, in a 5-3 decision, reversed the Court of Appeals, announcing a test for deciding when judicial immunity should apply and holding that the judge could not be sued. This case is included in my book, “Black Mondays: Worst Decisions of the Supreme Court.”
All of these grants of immunity are court-made, not based on the Constitution or federal or state law. If judges, police officers and prosecutors are above the law, why not the President of the United States?
We should enact a constitutional amendment reining in all of these immunities. Otherwise, the claim that “No one is above the law” is filled with loopholes large enough to drain the Constitution of its protections.
Only one President in our history has been criminally charged, demonstrating that immunity is unnecessary. In effect, the Supreme Court’s decision in Trump v. United States overturns U.S. v. Nixon. In the Nixon case, the Supreme Court unanimously ruled that President Nixon had to comply with a subpoena. If the President is immune for Presidential acts, then he cannot be forced to turn over documents to prosecutors. The Robert’s Supreme Court did not have the fortitude to admit that it was overturning U.S. v. Nixon.
Granting the President immunity is even more dangerous than granting immunity to judges, prosecutors and police officers. The President of the United States is the most powerful human being on the planet and does not need any additional immunity or protection from prosecution.
Joel D. Joseph is a lawyer and author of 15 books, including “Black Mondays: Worst Decisions of the Supreme Court.” Email joeldjoseph@gmail.com.
From The Progressive Populist, August 15, 2024
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