Looking at this thread, I am struck by the fact that Elena Kagan filed a “friend of the court” brief claiming that even if a prosecutor frames a defendant, said prosecutor should be considered personally inviolate.
I don’t want her on the court if that’s her attitude. Without the potential for personal repercussions, those who work in an organization are free to pass the buck all the way to extinction event.
So, of course, the first thing you did, being so struck, was to read her amicus brief and the other briefing in the case so that you could appreciate the scope of issues (issues debatable enough to get cert in the Supreme Court) and the relative strengths and weaknesses of each side’s case, rather than form an immediate judgment on a half-understood legal concept, nicht wahr?
So in your annoyance at ** foolsguinea**'s jumping to conclusions you immediately jump to the conclusion that she has a legal rather than a moral or other objection?
So John Adams, having defended British soldiers accused of shooting rioters, should not have been president? Kagan was instructed by her clients to argue this and other positions. A lawyer who never argues on the side you disagree with is going to be a very rare thing. I’ve argued for causes I haven’t personally agreed with, causes I’ve later changed my mind about and causes I was utterly bored by. I don’t hold myself or any other lawyer in disregard for this reason.
I still want to know if she is in general against personal accountability for procedural abuses & failures within an organizational structure. I don’t want her overturning a hypothetical law that places criminal charges on individual oil drillers for neglecting safety protocols. Restricting repercussions to corporate penalties allows buck-passing; being caught breaking the rules then becomes a matter of additional expense, not personal suffering.
If she’d been serving a client, I wouldn’t care so much. But a “friend of the court” brief implies she (or, her office, embodied in her) had a choice in what position to take & took that one.
I don’t expect better from the Obama Administration. I imagine anyone he nominates will think this way, & perhaps she’s as good as we’re going to get. It’s just, in her case we have a paper trail, & this sort of thing should be called out.
If prosecutors who abuse their office can’t be sued, what then? Should we expect them to be dealt with administratively? I don’t think that would solve the problem. And criminal charges seem far too unlikely. She was wrong. I get why she did it, in her shoes with her experience I might have written the same thing; I acknowledge my human frailty. But here she is objectively wrong, in that she chose a position that has lower utility for fighting corruption than the opposed position.
Again, she acted not as a defense attorney nor devil’s advocate, but literally advocating absolute prosecutorial immunity, even when prosecutors concoct evidence.
Well, there we have it. A lawyer should not represent the interests of the client, but instead their own personal conscience, and governmental official immunity should not be the general rule of law as it now is, but the exception because I’ve haven’t read any of the cases or briefs or history has thought about it for a good 10 minutes and concluded that I know best.
And the amicus brief? When the lawyer who is hired to write the amicus brief does so, it is no different than writing a party brief in that it is not optional to do the job you’ve been hired to do. You don’t get to pass on doing your job if you disagree with it.
Feh, not to get all schmaltzy about the founders, he was a mensch for defending the British, and showed why it’s not kosher to deprive someone of representation. Plus, he was paid bupkes for it.
It’s probably for over-simplifying and/or straw-manning the argument laid out in Kagan’s brief. And based on the OP, it’s likely that foolsguinea hasn’t even read it to see if actually does say what foolsguinea is arguing it says.
Since she taught law at a prestigious university, she should know the law. Being a supreme court justice that should be the thing all justice’s do. One should not be a Supreme court Justice to serve their own agenda, but interpret the law as it states in the constitution. She should be as qualified as any Justice now on the bench. Any judge, weither on the local bench or the supreme court, should be fair and stick to the law, not use one’s religion or personal thinking to interpret the Constitution!
For whom exactly was Kagan working? Who was her boss or client? If she doesn’t agree with the argument she was making, then was she making it on behalf of Obama? Is this then his position?
Then what I said above applies:
Thanks, Camus! This is exactly what I object to. She’s arguing that the means of internal discipline by the system of which the offender is a member of some standing are sufficient; & therefore every attempt to bring a complaint in civil court should be dismissed as a matter of law. Her position means that the superior method of holding those accountable is forbidden; while we are asked to rely on an inferior method, which will tend not to be enforced due to office politics & personal loyalty. What she called, “few additional benefits,” is in fact accountability even if the superior & colleagues of the offender be complicit in his crime.
Irrelevant. John Adams was not asserting that agents of the state should enjoy a special immunity; he simply (and correctly) asserted that they had a right to legal defense just like anybody else.
Your OP totally misrepresents the facts. Kagan did not argue that prosecutors should be “personally inviolate”, but that the criminal justice system was the correct venue for their comeuppance, not civil suits.
Do you have a citation for the claim that prosecutors don’t get prosecuted?
Strictly speaking, it wasn’t her job - the defendants were state or county prosecutors, not federal ones, and I doubt it would establish precedent with regard to federal prosecutions.
Except internal discipline here doesn’t just mean that a prosecutor could have their bar license suspended or be disbarred, they could face criminal charges themselves if they participated in any witness or evidence tampering. Here, the case involved a state-level prosecutor who worked for a particular district attorney’s office of an Iowa county. There are multiple prosecution agencies within a state for precisely the situation where a prosecutor is accused of criminal wrong-doing so that the same office that prosecutor worked would not have to decide whether to bring charges or not. Aside from county-level district or county attorney’s offices, which are completely independent of the other county-level district or county attorney’s offices within that state, there is also a state attorney general’s office. These other offices act as a check, since any criminal charges against a prosecutor in a particular office would be conflicted out (transferred) to one of these other agencies that have no loyalty to the prosecutor facing charges. Additionally, the local US Attorney’s office in a state also acts as a secondary check should any federal law be implicated in a state prosecutor’s alleged criminal actions.
Compared to criminal charges, civil liability is a poor deterrent for this kind of practice. But, the threat of civil lawsuits from every defendant who feels wronged by a prosecutor would be a deterrent for prosecutors from simply doing their jobs.
The defendants were sued under a federal law. Surprise, surprise, that the federal government would have a vested interest in ensuring that federal laws are interpreted in their favor. That would make it completely her job… to file an amicus.