At the Very Least, Flinch.

[M]aking prosecutors flinch is -- is always a bad thing.

That's Neal Katyal, Acting Solicitor General of the United States, during oral argument in the US Supreme Court today.

The case is Ashcroft v. Al-Kidd.  Ashcroft is John, former Attorney General.  Al-Kidd is a guy who was picked up on a material witness warrant (allegedly at Ashcroft's direction) because (according to the warrant affidavit) he was planning to leave the country and he was needed to testify at the trial of Sami Omar Al-Hussayen on terrorist-related charges.  In fact, Al-Kidd was never called to testify.  He sued Ashcroft claiming that his detention was part of an illegal scheme to use the material witness law to pick up and hold and interrogate people about terrorism without probable cause in violation of the 4th Amendment.  Essentially, he says that Ashcroft & the Justice Department (Dave Barry might say that's a good name for a rock band) were using the material witness law as a pretext for unconstitutional preventive detention.  (I'm oversimplifying a lot.)

Anyway, the Ninth Circuit, in a divided opinion, said that Al-Kidd could sue Ashcroft.  In determining that he could sue, the panel slogged through the seriously troubling (or wondrously liberating, I guess, depending on your point of view) field of governmental immunity.  I talked about it a fair amount in the context of Pottawattamie County v. McGhee (see here), the case out of Iowa about whether prosecutors retain their absolute immunity from suits for money damages when they fabricate evidence in order to convict innocent people of crimes.  Here's part of what I wrote when the case settled.

Roughly, the prosecutors argued that if prosecutors become nervous about the consequences of making up evidence, there's no stopping point and they'll be afraid to prosecute anyone. We don't want to make them to flinch when making up evidence, because we want them to be more than willing to present evidence that isn't made up without flinching. Like I say, stupid.

Justice Sotomayor saw through it. During oral argument, she asked a lawyer from the Department of Justice who'd made that argument,

Do you really want to send a message ... that they should not merely flinch but stop if they have reason to believe that evidence is fabricated?

You'd think this would be an easy call. Don't even have to adjust the general rule. All you have to say is that when prosecutors fabricate evidence, they aren't acting as prosecutors, they're acting as criminals: suborning perjury. But if you read the transcript of the argument, you'll see that nobody actually said that. And you'll see that it's far from clear how the Court would rule.

I mean, everyone agreed prosecutors shouldn't fabricate evidence. But whether they should be held liable for doing it? Wow, that seemed like a toughie.

Because Pottawattamie County settled before the Supremes could hand down a decision, we don't know what the Court would have done.  And, in any event, Ashcroft v. Al-Kidd doesn't have such clear lines.  

For one thing, it's haunted by the chimera of 9/11 and terrorism.  For another, Al-Kidd didn't spend decades behind bars.  The claim isn't even purely (his lawyer kind of dances around this in oral argument) that the government couldn't have held him.  Rather, it's that the motive for holding him wasn't the lawful motive it asserted.

And because Al-Kidd's claims weren't as clear and the government behavior wasn't as self-evidently wrong, the argument didn't have the same bite. But it had, again, Sotomayor making the same point.

Here's a bit of her back and forth with Katyal (referred to as General Katyal, because that's the way it's done).

          GENERAL KATYAL: . . . And, again, absolute immunity is important not for the prosecutor for his own sake or her own sake, but because ultimately that is what -- that causing -- damage liability will -will make prosecutors flinch the performance of their duties more generally.
          JUSTICE SOTOMAYOR: You don't -- you don't think there's a reason to make prosecutors flinch against willy-nilly -- that's not what I'm -- I'm claiming happened here, but if you take the point that you're raising, then prosecutors can out of spite, out of pure investigative reasoning, out of whatever motive they have, just lock people up.
          GENERAL KATYAL: Justice Sotomayor -
          JUSTICE SOTOMAYOR: And you're -- you're basically saying -
          GENERAL KATYAL: -- making prosecutors flinch is -- is always a bad thing.

Which is where we came in.

And which is so deeply and offensively wrong that I hardly know where to begin.

Except that even though it's wrong, the Supremes have long said that it's right.  Because if the prosecutor flinches, well then, there might be a social cost.  He might not pursue the bad guys as vigorously as he should if he's worried about getting sued when he lies and cheats and steals and does other things in violation of his oath and duty.

Which would be too damn bad.

Frankly, and Sotomayor got this in her Pottawattamie question, flinching's not enough.  But it's a start.

It would, perhaps, move us toward prosecutors with more integrity.  Or at least fewer with none.  Which would be an unalloyed good thing.

Make 'em flinch.  And then some.