Wednesday, January 24, 2024

Creators: The Limits of Absolute Immunity

Matthew T. Mangino
Creators Syndicate
January 16, 2024

A Federal Court of Appeals recently heard lengthy arguments on Donald Trump's claim of immunity from criminal prosecution in the case brought by special counsel Jack Smith.

Questions from the panel of three judges revealed they were a bit leery of Trump's argument that the Founding Fathers envisioned absolute immunity for presidents after they left office.

"I think it's paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law," said Judge Karen LeCraft Henderson.

Trump's lawyers are claiming that a current or former president has "absolute presidential immunity from damage liability for acts within the 'outer perimeter' of his official responsibility." Trump's attorneys have conceded that immunity insulating a former president from criminal prosecution is a "serious and unsettled question of law."

The law may be a little murky when it comes to presidential immunity, but when it comes to your local county prosecutor, his or her entitlement to immunity is crystal clear. Prosecutors enjoy absolute immunity for actions they take in the course of their prosecutorial duties.

Whether elected or appointed, some prosecutors lie, cheat or mislead, and there is nothing that can be done short of disbarment — although even disbarment doesn't mean removal from office. Prosecutors can falsify evidence, introduce perjured testimony, coerce witnesses or hide favorable evidence, and those victimized — some who spent years in prison — have no legal recourse.

The Supreme Court announced the doctrine of absolute immunity for prosecutors in the 1976 decision Imbler v. Pachtman. The court ruled that a man who had spent years in prison could not sue a prosecutor who allegedly withheld evidence that ultimately exonerated him.

Paul Imbler was convicted of the murder of a grocery store manager during a botched robbery in Los Angeles. It was later determined that Deputy District Attorney Richard Pachtman knowingly used false testimony during the trial and suppressed evidence favorable to Imbler.

Imbler was released from prison and filed a federal civil rights suit against Pachtman. The district court held that Pachtman was immune from civil liability for acts done in his capacity as prosecutor and dismissed the complaint.

Ultimately, the Supreme Court agreed. However, the court acknowledged "that the immunity of prosecutors from liability ... does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law."

According to the Innocence Project, the only prosecutor in America to go to jail for misconduct was Williamson County, Texas, district attorney Ken Anderson, who oversaw the wrongful murder conviction of Michael Morton in 1987.

Morton was convicted of murdering his wife, Christine Morton. According to the Texas Tribune, attorneys for Morton alleged that Anderson withheld critical evidence that pointed to Morton's innocence and that he lied to the judge about the existence of that evidence.

Morton was sentenced to life in prison and spent nearly 25 years behind bars before DNA analysis revealed that he was innocent and connected another man to his wife's killing. He was released from prison in 2011.

In 2007, Mike Nifong was the district attorney of Durham County, North Carolina. He was removed from office, disbarred and briefly jailed following court findings concerning his conduct during the unsuccessful prosecution of members of the Duke University lacrosse team accused of sexual assault. He was found to have conspired with the DNA lab director to withhold favorable DNA evidence from defendants.

Absolute immunity may protect prosecutors, judges and even presidents from civil law suits resulting from their work. However, absolute immunity does not apply to criminal conduct. Regardless if the Supreme Court puts off deciding Trump's claim of immunity from criminal prosecution, the result is inevitable. Absolute immunity, despite its name, does not immunize public officials from criminal conduct.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.

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