Faculty Journal Posted on Tuesday, December 18, 2018

Kavanaugh, the Supreme Court and Immunity for Government Officials

Leonard Feldman Associate Professor of Political Science, Hunter College and CUNY Graduate Center; Ph.D., Political Science, University of Washington, 2000

While campaigning for the Presidency in Iowa in January 2016, Donald Trump declared, “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters.” Trump found this supposed state of affairs “incredible” − a testament to the loyalty of his supporters. Whether the basket holding his core supporters is quite so leak-proof is less clear after the midterm elections. But Trump’s hypothetical prompts other questions concerning his legal (as opposed to electoral) immunity. Courts dole out immunity to various officials and governing entities – sometimes total immunity, and sometimes partial, through doctrines of executive privilege, absolute immunity and qualified immunity, and the immunities seem to be expanding. In the process, legal accountability – whether it is the president or a cop with a gun on Fifth Avenue – gets foreclosed. The ascension of Brett Kavanaugh to the Supreme Court promises to extend a worrisome trend in the direction of further expanded privileges and protections for the president and other government officials.

When we think about questions concerning the legal immunity and legal liability of government officials, understandably, we usually think about criminal indictment and prosecution (for instance of the President’s associates and potentially of the President), and related matters like presidential grand jury subpoenas. But there is another important issue – the ability of private individuals to sue agents of the state, an important way in which everyone from a governor to a police officer can be held accountable. The President enjoys close to absolute personal immunity from civil suits for acts done while President and related to his or her official duties. But, the Supreme Court, in Clinton v. Jones (1997), refused to give a sitting President immunity from private litigation for acts done prior to being President, including while serving as governor. Indeed, President Trump himself faces several civil suits for actions prior to his presidency and actions unrelated to the presidency, including for defamation in a suit brought by Summer Zervos, a former contestant on President Trump’s reality competition show The Apprentice who accused the President of unwanted sexual advances. And, most extensively, Section 1983 of the Federal Civil Rights Act of 1871 allows private individuals to sue government officials (such as the police) for civil rights violations.

As political scientist Lynda G. Dodd has shown, the conservative legal establishment’s negative view of this kind of litigation was reinforced by the Obama Administration’s, preference for civil rights enforcement through its own Department of Justice “pattern or practice” investigations over individuals suing. The problem with the Obama approach is now apparent – the Jeff Sessions-led Department of Justice put “law and order” on the agenda and removed police accountability. The centrality of questions of immunity and accountability was starkly apparent in the immediate aftermath of the midterm elections: Right before Sessions was fired for not protecting Trump from Mueller’s investigation, his last act as Attorney General was to issue a memo further protecting police from being subject to consent decrees resulting from Department of Justice investigations into patterns of police misconduct.

So where does Justice Kavanaugh fit into all this? As a member of Ken Starr’s Special Counsel team in 1995, two years before Clinton v. Jones was decided, Kavanaugh, pursuing conspiracy theories surrounding the death of Vince Foster in his first go-round with the Starr investigation, wrote in a memo that Clinton could be compelled to testify before a grand jury while in office. Placing “dignity of the Presidency” in scare quotes in his memo, he rejected as “weak” the claim that the office protected the president from being forced to give evidence. Here we find no veneration of the unique pressures of the presidency, instead a declaration that “given the history and tradition of this country’s jurisprudence … the President is not above the law.” His defense of the rule of law also betrayed a thinly veiled contempt for Clinton, with the observation that “The President jogs by the Federal Courthouse, so it would be rather strange to say that security issues prevent the President from appearing before the grand jury inside the courthouse.” A year after Clinton v. Jones, in 1998, Kavanaugh, returning for a second tour of duty with the Starr investigation, pushed for aggressive sexually explicit questioning of the sitting president, as the investigation expanded to focus on Clinton’s testimony about his intern Monica Lewinsky in his deposition in Jones.

Kavanaugh, as we know, had a remarkable change of heart about the immunity of the chief executive from legal investigation and civil litigation. In a 2009 Minnesota Law Review article, Kavanaugh does not reference his three-year pursuit of Vince Foster conspiracy theories while working for Starr nor his sexually explicit questions for Clinton, only saying “I worked for Judge Starr and believe he performed his difficult legal assignment diligently and properly under a badly flawed statutory regime.” But he claims his experience working for President George W. Bush led him to the view that presidents should not be distracted by civil litigation and criminal investigation. Why? Because of what he describes as the unique pressures and burdens of the job:

The decisions a President must make are hard and often life-or-death, the pressure is relentless, the problems arise from all directions, the criticism is unremitting and personal, and at the end of the day only one person is responsible.

With this new understanding of what the President actually does, Kavanaugh regrets that President Clinton was “distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots” and declares it bad law that “allowed civil suits against presidents to proceed while the President is in office.”

Kavanaugh’s support for protecting sitting presidents from the distracting burdens of civil litigation is part of a wider project. One of the striking aspects of the rightward shift of the Supreme Court is its aggressive attack on the regulatory state and administrative agencies alongside of extreme deference to (and defense of) agents of executive power, from presidents to police. Just as Justice Kavanaugh expresses a deferential attitude towards the burdens of executive power in his law review article, the Supreme Court has been increasingly deferential towards police officers. Just as Kavanaugh describes the “relentless” pressures and the “life-or-death” decisions of the presidency, the Supreme Court emphasizes that officers “are often forced to make split-second judgments − in circumstances that are tense, uncertain, and rapidly evolving.” Therefore courts should not second-guess using “the 20/20 vision of hindsight” but rather adopt the perspective of a “reasonable officer” on the scene while weighing competing interests and considering various factors, such as whether or not the suspect poses a threat. For both police and presidents, the conclusion is that the holder of this power deserves deference, not accountability.

While some deference from the courts to police officers given the complexity and danger of the job might seem reasonable, the Court managed to exacerbate the problem with their deferential posture, vaguely formulated factors to guide evaluation of the facts, and absence of clear rules: the Court has granted police officers “qualified immunity” if the law was not “clearly established” at the time the use of force took place. The late Justice Scalia described a “factbound morass of reasonableness” in which the Court can say “it’s fuzzy” – the existing case law did not precisely match the new set of facts of this encounter, so how was the officer to know that shooting a person with a knife in this case was against the law? (Kavanaugh himself has supported extending qualified immunity in dissents on the D.C. Court of Appeals.) As I have argued elsewhere, this pernicious approach promotes legal ambiguity and then uses that very lack of clarity as justification for immunizing police officers. The brutality of this logic was on display in Kisela v. Hughes, decided in favor of law enforcement by a 7-2 majority in 2018. Here the Supreme Court granted Kisela, a police officer, qualified immunity despite the fact that only minutes after arriving on the scene, he shot Amy Hughes, who was holding a knife by her side and was on the other side of a chain link fence from the officer, talking calmly with her housemate who reported that she was not afraid. In a blistering dissent, Justice Sotomayor (joined by Justice Ginsberg) argued that the majority had turned the doctrine of qualified immunity into unqualified immunity, “an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.”

Some on the left think liberals place too much emphasis upon constitutionalism and legal reform, whether this is the hope that Special Counsel Mueller brings forth an indictment against Trump or the idea that better court rulings and more Department of Justice consent decrees will stop police killings of unarmed citizens. What’s needed is a deeper and broader transformative political movement. I sympathize with this view, but it is worth remembering that politics and law are closely intertwined – and the ability of individuals to hold government officials accountable through their own legal mobilization is an important example of that nexus.

Leonard Feldman is an Associate Professor of Political Science at Hunter College and the Graduate Center, CUNY. At Hunter he is a member of the Human Rights Program Faculty and a Roosevelt House Faculty Associate. His research and teaching are in contemporary political theory. He is the author of Citizens Without Shelter: Homelessness, Democracy, and Political Exclusion (Cornell University Press, 2004), which critically examines the criminalization of homelessness. His articles, on police violence, emergency powers, and Locke’s theory of prerogative, have appeared in such journals as Political Theory, Law, Culture and the Humanities and Theory & Event, as well as in several edited volumes. He currently serves as the Associate Editor for Political Theory of the journal Polity.