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
www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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