No immunity

[Jonathan Buhacoff]

Proposal

No person is immune from prosecution for violation of rights or violation of law. Laws apply equally to all people. When a law governs behavior of only a subset of people, such as laws regulating commerce or the behavior of elected or appointed officials or government employees at any level of government, that law shall apply equally to all people in that subset.

Prosecution of elected or appointed government officials and government employees must begin with a determination, by a judge at the same or higher level of government as the official or employee, that the alleged criminal conduct was not within the scope of the defendant’s lawful official duties and is not exempt from prosecution by any applicable law. If the judge determines that the alleged criminal behavior was not within the defendant’s lawful official duties, prosecution may continue. If the judge determines that the alleged criminal behavior was within the defendant’s lawful official duties, then the individual defendant must be replaced with the government as the defendant and the prosecution may continue against the government itself (the city, county, state, or federal government).

Prosecution of elected or appointed government officials and government employees charged with using their office for criminal conduct must be conducted at the same or higher level of government as the official or employee.

Prosecution of elected or appointed government officials and government employees charged with private criminal conduct must be conducted at the lowest level of government that enacted the laws that were violated and in the district where they were violated.

Intent

No elected or appointed government official should be immune from criminal prosecution for violation of law, even while in office. No government employee should be immune from criminal prosecution for violation of law.

To prevent a local, state, or even federal law enforcement officials from abusing their own position to coerce another official, or seek revenge, or harass another official for any reason, there should be a law enacted to require law enforcement officials to obtain a special warrant from a court of the same level as the elected or appointed official that is to be arrested and charged. The judge issuing special warrant would have to consider the evidence presented by law enforcement and the circumstances and decide on merits before any action is taken. This means law enforcement must provide evidence of breaking the law.

The prosecution must happen at the same or higher level of government as the official or employee in order to prevent state courts from imprisoning federal officials and in order to prevent county courts from imprisoning state officials for conduct that is within the duties of the defendant’s office or employment.

Discussion

Elected or appointed officials include the President, the cabinet, the Supreme Court justices, the Senators, and the head of the Investigative Branch.

The higher standard ensures that officials aren’t harassed, but still allows them to be held accountable when there’s evidence that they broke the law.

Any privileges that we need the elected or appointed officials to have must be enacted into law. For example, if a law enforcement officer is allowed to drive faster than the speed limit in pursuit of a suspect, that must be allowed by a law instead of by saying that law enforcement officers are immune from prosecution. If the President is allowed to get on an aircraft and direct the pilot to proceed to a destination without first having to register a flight plan and obtain permits and approvals the way a commercial or private pilot might have to do, this should be enacted into a law. If the President should be immune from lawsuits over a decision made during a national emergency, this should be enacted into a law that clearly states decisions with the intent to protect the country, the people, the government, etc. cannot be challenged in lawsuits unless there is reason to believe (and that can be proved in court) that the decision was made with ulterior motives such as to hurt political opponents or seek revenge, and that this was done under the guise of an emergency decision. Plaintiffs would have to show that there is no better explanation for the decision than something improper, or have evidence of it, to even bring the case (like the higher warrant standard). The judges must screen these lawsuits to determine if they are merely someone being unhappy with a legitimate decision, or someone attempting to harass the elected or appointed official, or if there might have been criminal conduct.

Another important reason to not make any elected or appointed official immune from criminal prosecution is that this status could embolden them to give an order to people under their charge to violate rights or violate the law. The official giving the order would be immune, but the people carrying it out may not be immune. This is a significant issue, especially in situations such as the military where not obeying an order may have severe consequences for the subordinate. This situation where following an order and not following an order may both lead to peril for the subordinate violates the subordinate’s right to integrity.

Another important reason to not have any executive branch officials, including the President, be immune from prosecution for violating the law, is that when the legislature ratifies treaties with other countries, or sets foreign policy boundaries by law, the executive branch must follow that law. If executive branch officials are immune from prosecution for violating the law, then the legislature loses its law-making power because the executive branch officials won’t have to follow the law and the judicial branch won’t convict them. That means other countries can’t rely on a consistent foreign policy, since it may change with every President or Secretary of State. And that means it will be difficult to make any long-term deal because leaders of other countries will realize that we have no mechanism to ensure that we honor treaties or agreements that we make past the next election, since we cannot hold the president accountable for violating them. Immunity for the executive branch would create an immense disadvantage in foreign relations.

[Author]

Posts