July 14, 2024
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I had thought there was no presidential immunity for presidents if they commit crimes, whether in office, or an ex-president who is no longer in power. The appeals court wrote a compelling argument, for example, that Donald Trump What was odd about what SCOTUS did was they did not look at the facts of the argument, but argued what they wanted the case to be; one even said something like they were writing opinions for the ages (sure, and I hope those *for the ages* age as well as the supposedly stare decisis case of Roe v Wade). Anyway, we’re all waiting to hear what SCOTUS says and when they finally release the opinion. May be too late to have the *speedy trial* in the DC circuit to find out about election interference, though. If he doesn’t win the presidency, as he shouldn’t, he’ll have his trial after that. And even if the Mar-a-Lago case is pushed off till next year, he would still then have his criminal trial on documents. Anyway, I was always taught, not just in school but in a lot of historical readings, that America does not have a king, but 3 co-equal branches of government. As Thomas Paine said

But where, say some, is the King of America? I’ll tell you, friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Great Britain. Yet that we may not appear to be defective even in earthly honours, let a day be solemnly set apart for proclaiming the Charter; let it be brought forth placed on the Divine Law, the Word of God; let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other. But lest any ill use should afterwards arise, let the Crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.

A government of our own is our natural right: and when a man seriously reflects on the precariousness of human affairs, he will become convinced, that it is infinitely wiser and safer, to form a constitution of our own in a cool deliberate manner, while we have it in our power, than to trust such an interesting event to time and chance. If we omit it now, some Massanello may hereafter arise [Note: Thomas Anello, otherwise Massanello, a fisherman of Naples, who after spiriting up his countrymen in the public market place, against the oppression of the Spaniards, to whom the place was then subject, prompted them to revolt, and in the space of a day became King], who, laying hold of popular disquietudes, may collect together the desperate and the discontented, and by assuming to themselves the powers of government, finally sweep away the liberties of the Continent like a deluge.Thomas Paine

Turning to a case in the news right now that involves Robert Menendez of New Jersey, who is a Senator. He sure looks like a crook to me, the charges are about whether he took bribees to send military aid to Egypt. One of the defenses he lodged was that he had immunity to protect congressional records due to the “speech and debate” clause of the constitution. A judge in March declined to toss the charges against Menendez, who has, cowardly, blamed his predicament on his wife. Here’s the issue spelled out.

There are at least two slices of Egypt-related evidence that the defense wants Stein to keep from the jury on speech or debate clause grounds. Prosecutors have called the evidence “critical” to parts of their case.

First, prosecutors say they have a Sept. 9, 2019, text message from an Egyptian official to one of the business people accused of bribing Menendez that shows Egypt worried that Menendez put a hold on “a billion dollars” in aid to the country. According to prosecutors, the business person, Wael “Will” Hana, then tried to reach Nadine, who was dating Menendez at the time. Hana then called Fred Daibes, another business person accused of bribing Menendez. Daibes called the senator and then called Hana. Within minutes, Hana texted the Egyptian official saying Menendez said it wasn’t true that he’d put a hold on the aid.

Prosecutors also said they have “great evidence” that they know they can’t use about what really happened. According to prosecutors, after Menendez got this inquiry, he went to talk to a staffer who placed the hold and told her to lift it.

I wonder, though, why it is that congress is being considered, on account of the speech and debates clause, immune to criminal acts, at least in this case so far. Whatever happened with Scott Perry, who had sent messages to PA lawmakers before the Jan 6 attack. Was he somehow left off the hook because he’s in Congress? Or Ted Cruz?

The third type of immunity is qualified immunity and applies to law enforcement. It’s why so often we see cops get off the hook for not necessarily bad behaviour but attacks or deception against citizens. And qualified immunity should not 100 protect law enforcement. Judge Don Willet of the 5th circuit court of appeals said he thinks qualified immunity for police may be a legal error.

Now read Jamison v McClendon and I’m going to excerpt a bit of if here, in which he addresses SCOTUS and says they should overturn qualified immunity

A review of our qualified immunity precedent makes clear that the Court has dispensed with any pretense of balancing competing values. Our courts have shielded a police officer who shot a child while the officer was attempting to shoot the family dog;[117] prison guards who forced a prisoner to sleep in cells “covered in feces” for days;[118] police officers who stole over $225,000 worth of property;[119] a deputy who body-slammed a woman after she simply “ignored [the deputy’s] command and walked away”;[120] an officer who seriously burned a woman after detonating a “flashbang” device in the bedroom where she was sleeping;[121] an officer who deployed a dog against a suspect who “claim[ed] that he surrendered by raising his hands in the air”;[122] and an officer who shot an unarmed 404*404 woman eight times after she threw a knife and glass at a police dog that was attacking her brother.[123]

If Section 1983 was created to make the courts “`guardians of the people’s federal rights,'” what kind of guardians have the courts become?[124] One only has to look at the evolution of the doctrine to answer that question.

Once, qualified immunity protected officers who acted in good faith. The doctrine now protects all officers, no matter how egregious their conduct, if the law they broke was not “clearly established.”

This “clearly established” requirement is not in the Constitution or a federal statute. The Supreme Court came up with it in 1982.[125] In 1986, the Court then “evolved” the qualified immunity defense to spread its blessings “to all but the plainly incompetent or those who knowingly violate the law.”[126] It further ratcheted up the standard in 2011, when it added the words “beyond debate.[127] In other words, “for the law to be clearly established, it must have been `beyond debate’ that [the officer] broke the law.”[128] An officer cannot be held liable unless every reasonable officer would understand that what he is doing violates the law.[129] It does not matter, as the Fifth Circuit has explained, “that we are morally outraged, or the fact that our collective conscience is shocked by the alleged conduct … [because it] does not mean necessarily that the officials should have realized that [the conduct] violated a 405*405 constitutional right.”[130] Even evidence that the officer acted in bad faith is now considered irrelevant.[131]

The Supreme Court has also given qualified immunity sweeping procedural advantages. “Because the defense of qualified immunity is, in part, a question of law, it naturally creates a `super-summary judgment’ right on behalf of government officials. Even when an official is not entitled to summary judgment on the merits — because the plaintiff has stated a proper claim and genuine issues of fact exist — summary judgment can still be granted when the law is not reasonably clear.”[132]

And there is more. The Supreme Court says defendants should be dismissed at the “earliest possible stage” in the proceedings to not be burdened with the matter.[133] The earliest possible stage may include a stage in the case before any discovery has been taken and necessarily before a plaintiff has obtained all the relevant facts and all (or any) documents.[134] If a court denies a defendant’s motion seeking dismissal or summary judgment based on qualified immunity, that decision is also immediately appealable.[135] Those appeals can lead all the way to the United States Supreme Court even before any trial judge or jury hears the merits of the case. Qualified immunity’s premier advantage thus lies in the fact that it affords government officials review by (at least) four federal judges before trial.[136]

Each step the Court has taken toward absolute immunity heralded a retreat from its earlier pronouncements. Although the Court held in 2002 that qualified immunity could be denied “in novel factual circumstances,”[137] the Court’s track record in the intervening two decades renders naïve any judges who believe that pronouncement.[138]

Here is a case Green v Thomas from this month re: qualified immunity and there is an interesting section in the opinion about the Dobbs decision that killed Roe v Wade (footnotes below distinguished by italics)

3. The Dobbs Dilemma
In 2022, the Supreme Court upended 50 years of precedent and eliminated the Constitutional right to a pre‐viability abor‐ tion. Dobbs, 597 U.S. at 215. Its reasoning in that case supports
upending existing law here.
Opponents of qualified immunity advance many of the same kinds of arguments that opponents of abortion used. In both instances, the primary complaint was that the Supreme Court
had disregarded authoritative texts and used “raw judicial power” to balance implied rights and interests. Id. at 268; see Pierson, 386 U.S. at 555. Opponents complained that the high Court “short‐circuited the democratic process” and “neces‐sarily declared a winning side” in a long‐running social con‐
troversy. Dobbs, 597 U.S. at 269.
The arguments against qualified immunity are stronger than the arguments Petitioners presented in Dobbs. The People themselves already expressed the standards they expect of law enforcement when they ratified the Fourth Amendment and passed the Ku Klux Klan Act into law. “The very enumer‐
ation of the [constitutional] right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case‐by‐case basis whether the right is really worth insisting upon.” District of Columbia v. Heller, 554 U.S. 570, 634 (2008).39 So it should be an easier leap of logic—
39 This Court is fond of using this language in Second Amendment cases.
See McDonald v. City of Chicago, Ill., 561 U.S. 742, 791 (2010); N.Y. State Rifle
& Pistol Assoc., Inc. v. Bruen, 597 U.S. 1, 23 (2022). Surely this principle has
validity in other Constitutional cases, too. But to date, only Justice Thomas
has wielded this language outside of Second Amendment cases. See Luis
v. United States, 578 U.S. 5, 33 (2016) (Thomas, J., concurring).

and lesser expenditure of political capital—to conclude that qualified immunity “was egregiously wrong on the day it was decided.” Dobbs, 597 U.S. at 268 (cleaned up). One might argue that law enforcement officers are entitled to keep qualified immunity because they have planned their livelihoods around its existence. See, e.g., Caroline Goggin, NH police department under fire for listing ‘qualified immunity’ as job perk in recruitment post, WHDH.com (Aug. 4, 2021). Judges and lawyers call this a “reliance interest.” One judge has ar‐ gued that because revisiting qualified immunity “would have significant consequences for state and local governments, . . . reliance interests recommend adherence to stare decisis.”
McKinney v. City of Middletown, 49 F.4th 730, 748 (2d Cir. 2022).
It was strange to see that argument after the Supreme Court’s abortion decision, though, because Dobbs rejected precisely that kind of vague, “generalized assertion[] about the national psyche.” 597 U.S. at 288. The Court instead thought voters should resolve reliance interests, not judges. After all, just like women, law enforcement officers and their unions “are not without electoral or political power,” 40 and may “seek to 40 All understand the power and influence of the police. See Benjamin
Levin, What’s Wrong with Police Unions?, 120 Colum. L. Rev. 1333 (2020);
Noam Scheiber et al., How Police Unions Became Such Powerful Opponents to
Reform Efforts, N.Y. Times (June 6, 2020); Sam Blum, Police Unions Wield
Massive Power in American Politics—For Now, Rolling Stone (July 7, 2020);
Ross Barkan, How Did Police Unions Get So Powerful?, The Nation (July 2,

affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.” Id. at 41 ,42
Dobbs also reflects the Supreme Court’s desire to remove itself from the center of a hot‐button issue and return it to the elec‐ toral process. As one Justice remarked at oral argument in that

41 It was just a few years ago that the Justices told us that “[t]he fact that
public‐sector unions may view” a constitutional decision “as an entitle‐
ment does not establish the sort of reliance interest that could outweigh
the countervailing interest that nonmembers share in having their consti‐
tutional rights fully protected.” Janus v. Am. Fed’n of State, Cnty., & Mun.
Emps., Council 31, 585 U.S. 878, 927 (2018) (cleaned up).
42 Defenders of the status quo are then left to argue that “[s]tare decisis
‘carries enhanced force’ when, as in the case of qualified immunity under
§ 1983, the relevant precedent ‘interprets a statute.’” McKinney, 49 F.4th at
748 (quoting Kimble v. Marvel Ent., LLC, 576 U.S. 446, 456 (2015)). But that
doesn’t go very far in a post‐Dobbs world.
It is true that when the Court misinterprets a statute, Congress can step in
and clarify the law. E.g., Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S.
618 (2007), overturned by The Lilly Ledbetter Fair Pay Act of 2009, Pub. L.
No. 111‐2 (Jan. 29, 2009). Congress would be well within its rights to clarify
or abolish qualified immunity.
The same fundamental principle was at stake in Dobbs, though. There, the
Court could have deferred to the democratic process and let the voters
overrule, amend, or expand Roe v. Wade through the passage of a Consti‐
tutional amendment. The Court nevertheless elected to fix its perceived
mistake and overrule its interpretation of the law.
The point is this: the availability of a democratic remedy for qualified im‐
munity doesn’t stop the Supreme Court from taking responsibility for the
problem it created. As Justice Thomas has written, “when we err in areas
of judge‐made law, we ought to presume that Congress expects us to cor‐
rect our own mistakes—not the other way around.” Halliburton Co. v. Erica
P. John Fund, Inc., 573 U.S. 258, 298 (2014) (Thomas, J., concurring)

case, when the Constitution is silent on such important inter‐ ests, “why should this Court be the arbiter rather than Con‐ gress, the state legislatures, state supreme courts, the people being able to resolve this?” Transcript of Oral Argument at
107, Dobbs v. Jackson Women’s Health Org., 597 U.S. 215
(2022) (No. 19‐1392) (Kavanaugh, J.).
There is a certain appeal to this. Since the early 1970s, the Su‐
preme Court issued more than 100 decisions referencing Roe
v. Wade. Maybe that amount of controversy on issues of life
and death, where passions run high, was too much for any
person or institution to bear.
Over that same period of time, though, the Supreme Court
has issued more than 200 decisions referencing qualified im‐
munity. Many of those cases are also about life and death. See
Mullenix, 577 U.S. at 9. Yet it has not yet seen fit to return this
contested issue to the democratic process. It is not clear why. 43
To all this, a layperson might wonder how such a shaky doc‐
trine can be maintained. The next section will discuss the Jus‐
tices’ own explanations.

  1. The Policy Justifications
    The Supreme Court says qualified immunity exists to protect
    government officials from “the expenses of litigation, the di‐
    version of official energy from pressing public issues, and the
    43 The current Court is certainly not shy about overruling precedent. “In
    2018, Janus v. AFSCME overruled Abood v. Detroit Board of Education, 431
    U.S. 209 (1977); in 2019, Knick v. Township of Scott overruled Williamson
    County v. Hamilton Bank, 473 U.S. 172 (1985); and in 2020, Ramos v. Louisi‐
    ana overruled Apodaca v. Oregon, 406 U.S. 404 (1972).” Jamison, 476 F. Supp.
    3d at 420. The category seems to grow every year. See Students for Fair Ad‐
    missions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).

deterrence of able citizens from acceptance of public office.” Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). “[E]ven such pre‐ trial matters as discovery are to be avoided if possible, as in‐ quiries of this kind can be peculiarly disruptive of effective government.” Mitchell, 472 U.S. at 526 (cleaned up).
Pause for a moment to observe how aberrant these justifica‐ tions are. Emergency room physicians are critical in a real life‐ or‐death sense. But when they are sued for negligence, we take for granted that they will have to respond and, perhaps, be subjected to discovery about their actions. The economy relies on banks to preserve, grow, and allocate resources. In the event a bank engages in fraud or facilitates a Ponzi
scheme, though, its victims can come to court and ask to be made whole.
The same is true for just about every realm of life. The judicial process is how our democracy provides “tribunals for the peaceful resolution of all manner of disputes.” Chief Justice John G. Roberts, Jr., 2015 Year‐End Report on the Federal Ju‐ diciary at 2 (emphasis added). So it is odd for the judicial pro‐
cess to privilege government over every other industry. It’s important to keep the public sector functioning, to be sure, but we also need functional hospitals, utilities, financial insti‐ tutions, and supply chains. And in all of those systems, we accept the costs and distractions of litigation as necessary con‐
sequences of a fair dispute resolution system.
The Supreme Court nevertheless assumes that qualified im‐ munity is necessary to privilege government operations over non‐government operations. Yet little to no evidence sup‐ ports the assumption.

Professor Schwartz’s research indicates that “qualified im‐ munity is not achieving its policy objectives” and “may, in fact, increase the costs and delays associated with constitu‐ tional litigation.” Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 11 (2017). One of her more galling find‐ ings reveals that officers are trained on “broad principles”— not the specific “factual scenarios” that appellate judges then insist were necessary predicates to liability. Joanna C. Schwartz, Qualified Immunityʹs Boldest Lie, 88 U. Chi. L. Rev. 605, 610 (2021). “Officers could never learn the facts and hold‐ ings of the hundreds or thousands of cases that clearly estab‐ lish the law and, even if they learned about some of these cases, they would not reliably recall their facts and holdings while doing their jobs.” Id. at 612. And the notion that a gov‐ ernment employee will change their behavior out of fear of personal liability is not borne out by the evidence. Police of‐ ficers are not held financially responsible for the vast majority of settlements and judgments against them. Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame
L. Rev. 1797, 1806 (2018).
At the end of the day, the Court’s policy‐based defense of qualified immunity is simply a choice to privilege govern‐ ment officials over all others. The justifications are less than

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