Musing on absolute immunity

Absolute immunity is “enjoyed” by all prosecutors as a consequence of an oversight or failure to correct by Congress. It was addressed by the SCOTUS in the oral arguments for Pottawattamie v. McGhee where justices seemed ready to make a ruling to correct a known problem, but before the decision could be written, the case was settled by the County paying damages for the misbehavior of the prosecutor.

As I understand it, prosecutors’ decisions cannot be challenged by anyone because it was originally assumed their actions would be “purely ministerial” —i.e. forwarding information from the executive to the judicial branch without any input other than to adjudge it complete.
The issue was addressed, sort of, in yesterday’s Senate Judicial Committee meeting the IG repeatedly made the point that he is prohibited from reviewing the works of lawyers in the Department of Justice, even though it is known their interactions with the FISA court were sloppy or left stuff out. The IG did say the House has passed legislation to correct that but the Senate has not taken it up. There seemed to be bi-partisan interest in addressing the prosecutor’s absolute immunity, but you can see why Barr, who’s been pushing the concept for decades, is down on the IG report even though he submitted no written concerns when asked.
One thing to note is that things are often not about what they seem to be about. Hillary’s emails were a good example. The kerfuffle was not about her emails, but about whether electronic communications have to be preserved and archived for posterity, including the emails Congress gets that might not be flattering. When email was first invented, it was thought they could be handled like phone calls, logged as to date, time and participants and a summary of content and then discaded. But then the SCOTUS ruled that electronic documents (and image files) have tobe preserved just like hard copy and made available for inspection. That was a win for FOIA and put another nail in the coffin of the penchant for secrecy in the bureaucracy. The issue is also relevant in the newly discovered White House habit of putting the President’s call records on a supersecret server in order to prevent exposure to public knowledge. Trump does not trust the written word, with good reason, and you will remember stories of him tearing notes into small pieces and staff having to tape them back together to comply with the Official Records Act.
Trump is convinced that he is free to say whatever he wants and “words will never hurt” him, but he is discovering that may not be the case. One of the Republicans at yesterday’s IG hearing tried to make the case that a security briefing given to candidate Trump by an FBI person was unfair because, it turns out, it was a dual-purpose event in that the FBI, which was already investigating Flynn for his Russia connections, was looking to see if Flynn, also in attendance, would make any incriminating statements. The Senator considered it unfair that an investigator would not tell a target that anything he said could be held against him. It is likely that the Senator and Trump do not understand that it is always the case and that a Miranda Warning is just a statement of the obvious, made necessary by the common misunderstanding of the First Amendment.
Somebody apparently misled Donald John Trump into thinking that as President he would enjoy permanent absolute immunity from presecution for anything he said or did. Then Mueller announced he could be prosecuted after he left office. Now Congress is threatening to remove him early and all he’s got is the hope that the red caps’ threat of violence won’t let that happen. But, like him, they are all big talking cowards.

Barr is a secular Papist, intent on reforming the state into an autocracy with a term-limited dictatorship. He and his cohorts are convinced that democracy means people can choose their dictators, rather than relying on church sanction or blood relations imposed by the use of force. Consent has supposedly replaced coercion, but in some cases, coerced consent is necessary because some people do not know what is good for them. Government BY the people is the issue of the twenty first century. The “rule of law” is not proving an acceptable compromise because people have figured out that legalizing immoral acts is not only common, but detrimental to all. In some cases, the law is worse than a flesh and blood dictator because its head cannot be offed. After all, legal slavery perisited much longer than any slave holder lived. I think the US has not yet come to terms with the fact that legalizing slavery was its original sin; that legalized slavery is the basis for arguing that any lesser restraint is progress. “You are starving, but at least you are not a slave. Ain’t freedom great?”