How Qualified Immunity Leads To Weaponized Government

A bedrock American principle is that our government is not only for but also by the people. Our founders created a system in which citizens have the power to protect themselves and the nation by acting as a check against potentially authoritarian government officials. The indictment of Donald Trump shines a light on a troubling example of how that power is being removed from the people to instead protect government officials in the form of judge-created doctrines of immunity. 

Since the 1870s, American citizens have been able to use legal means to hold government officials accountable for actions that violate their constitutional rights. The knowledge that citizens could take legal action against them was a good reminder to be above reproach and serve only the people’s best interest. 

But the Supreme Court has since established what is known now as the doctrine of qualified immunity and a doctrine of absolute immunity for certain officials, including prosecutors. These doctrines undermine the laws passed by Congress and shield government officials from being held accountable by the citizens they are sworn to serve, in the increasingly frequent event that they do not discharge that duty lawfully. 

The effect on our government has been devastating, and never more so than now. 

This legal protection from accountability has emboldened officials to weaponize the government against political opponents in ways they wouldn’t dare attempt were there any recourse available to the public. 

We often see government officials engaging in questionable behavior while pushing—and even exceeding—ethical and constitutional boundaries. A prime example is the unethical behavior of Manhattan District Attorney Alvin Bragg. After campaigning on a promise to take a soft-on-crime approach, Bragg became known for minimizing the charges and reducing the sentences of offenders who posed a serious threat to the citizens of New York. But he had also made another promise—to use his power to hold Donald Trump “accountable.” 

We now see that he meant “at all costs and without regard to ethics.” The bulk of the cost, unfortunately, is being paid by the citizens of New York City. They endure the crippling crime rates exacerbated by repeat criminals facing intentionally light charges and sentences. Meanwhile, Bragg focuses his energy and their tax dollars on the tenuous prosecution of a political figure 12 states away over alleged record keeping discrepancies. This is an egregious misuse of prosecutorial discretion by a government official emboldened by the protections of immunity. 

As a former attorney with the state prosecutor’s office, I have a first-hand perspective on the position in which Bragg now finds himself. The bar for obtaining an indictment from a grand jury is surprisingly low as it is a one-sided process where a prosecutor can omit exculpatory evidence and has no fear of counter-argument regarding evidence cherry-picked for the grand jury. The standard is not whether a person did commit a crime. Rather, a prosecutor must simply prove that it is probable or that they may have committed the crime. 

While exculpatory evidence and counterarguments needn’t be presented at the time of an indictment, an ethical prosecutor would carefully consider them to determine whether the charges are reasonable and assess the likelihood of a guilty verdict. It is unethical for a prosecutor to bring charges based only on probable cause if he knows he can prove guilt beyond a reasonable doubt. You don’t file charges as a publicity stunt. This ethical standard protects citizens from frivolous and unprovable indictments intended only to destroy reputations or send a political message. It also avoids wasting taxpayer funds or the court’s resources. 

In the case of Donald Trump, Bragg seems to have forgotten these ethical considerations, instead focusing on the immense socio-political “win” of indicting a divisive political figure. By disregarding exculpatory evidence and relying on weak legal theories to aggravate misdemeanor charges to felonies, Bragg has set the stage for significant reasonable doubt in what has the appearance of a case intended only to destroy the reputation of a disruptive citizen. He might have been more hesitant to push ethical boundaries with dubious legal tactics if he had to consider the potential for being held accountable for those questionable choices. 

But because he enjoys the protection of immunity, Bragg feels empowered to push ethical boundaries and weaponize the government and judicial system against a citizen whose political opinions he dislikes. This sets a dangerous precedent that endangers every American citizen. 

Without fear of being held accountable, what’s stopping government officials from pushing every ethical and moral boundary to serve a political agenda? If emboldened and protected government officials can weaponize the government against someone like Trump, then they can do the same to you. 

It has never been more essential to return power to the people to protect ourselves and our nation from government agencies, bureaucrats, and officials who violate our rights and infringe upon our freedoms. Congress has the legislative capacity to enshrine the people’s right to hold government officials accountable by overriding these judge-created immunity doctrines. It’s time our representatives protected citizens over themselves.

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About Keith Gross

Keith Gross is a conservative businessman and attorney from Panama City, Florida, and is a candidate for U.S. Senate

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