Legal Immunity: vaccinations against lawsuits

OOPS!  New sound editing software has a steep learning curve.  This is a re-issue of January 22, 2025's podcast.  Apologies for the goofy editing in the original.  

As for the substance -- and there's A LOT to discuss -- for all that commentators talk about immunity, few address legal immunity's nuances.  This podcast is designed to help understand a rapidly changing, tricky area of law.  (And, yes, we will discuss presidential immunity and He Who Most Needs It.)

 

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Transcript

Hey everybody, this is Joy Bertrand, your host of the Athena in the Well podcast. 

Today is January 21st, 2025. Happy New Year to all of you. 

I want to talk today about legal principles. We focus a lot on the personal development aspects of the Athena resilience system as well. We should trial lawyers face just brutal levels of stress that take a toll on their physical health, their mental health and their relationships.

But what can't be ignored is that to be a great trial lawyer. Or a great anything is you have to know how things work really understanding and integrating the how in a system is critical to being a master strategist. You can't strategize if you don't know what your tools are. If you don't know what framework.

Is in which you work, so, for example, in litigation, that means really [00:01:00] understanding the legal principles that govern whatever area of law you practice a criminal defense lawyer can be a Zen master. But if they don't have a strong grasp of 4th amendment search and seizure law, they won't be effective.

And I think sometimes in these integrated personal. Development lawyer development programs, this fact, this cold hard fact, if you have to know the law, you have to know the framework in which you work gets overlooked. And there's frankly, no magic beans to this. You just have to learn it. 

You have to know your rules of evidence, if you're a trial lawyer.  You have to know the rules surrounding contracts, if you're a transactional lawyer.  

And one of the areas that gets. Confusing quickly and that's actually pretty broad is the area of immunity, legal immunity. And this has come up a lot [00:02:00] lately. So I thought it was a timely time to talk about this.

We're going to talk about it in general terms today, but then we're going to end on talking a little bit about the state of presidential immunity after the Supreme Court's decision last summer immunity. Is a word that is thrown around a lot by legal commentators without a lot of accuracy, accuracy, legal immunity is a doctrine that protects individuals or entities from lawsuits or prosecution under specific conditions.

Let's be clear about what it is not. In the criminal context, it is not exoneration. It is not a finding of any innocence, or they couldn't have proved it. It is simply a protection from being prosecuted. Likewise, it's not in any way a commutation. It doesn't change. The outcome of something it prevents [00:03:00] that something from starting in the 1st place or nipping it in the bud early on and the history of this comes from, frankly, the British 1,000-year legal tradition. And the idea of sovereign immunity, that the king can do no wrong. And that's involved into all kinds of modern Interpretations and you see that and you're here to talk about in the news quite a bit.

You hear it with regards to qualified immunity and police officers or diplomatic immunity when you watch those spy shows and the, the guy with the diplomatic immunity literally gets away with murder. I chuckle here in Phoenix where we have several embassies and you see the diplomatic plates and you're just thinking they can go 100 miles an hour down the expressway and no one can do anything about it, at least not in this country. 

Government agencies have immunity. Some private citizens do. And of course, front and center in the past six to eight months has been the [00:04:00] presidential immunity that has really shifted since the Nixon administration. So types of legal immunity.

One that isn't used in common discussions, but it's very common in legal practices, is the idea of sovereign immunity and it's kind of, illogical, it says that the sovereign the government decides what it can be sued for and what it cannot, which seems unfair because we are the people we should be deciding when we need to sue the government.

But there's some efficiency concerns about that. And that's understandable. And there are. Laws that say, you can sue the government for specific things, but often that comes with, you've got to jump through all of these hoops to do that. And a great example would be the federal tort claims act. So to bring a civil lawsuit.

Generally speaking against the United States government, you 1st, have to file a notice of claim under the and outline all the reasons why [00:05:00] you think that your client should be compensated for whatever injury they received and only after the government says yes or no, or just fails to respond. I think after 90 days can you file a suit against them. 

There are some statutes that say, no, you can go ahead and sue us without that. So, for example, in workplace workplace harassment and discrimination cases, you don't need to file the that Title 7 of the civil rights act allows you to file against the United States without having to engage in this additional taking of steps. 

Sovereign immunity also can apply to state and local governments. So they often claim immunity from suit unless, again, plaintiffs jump through all of these hoops. You have to file a notice of claim. You got to serve it properly. And, and with all of these administrative law procedures, the whole goal, frankly, is to keep people from bringing suit, to [00:06:00] force regular people to jump through all these hoops that they cannot possibly anticipate and then be barred from bringing a claim in the civil rights context where I practice this sovereign immunity issue comes up a lot with the States. 

Monell versus New York Department of Social Services is the case that allows civil rights actions to be brought against local governments, so city and county governments, but there is a whole line of case law that says you can't bring those claims against a state government and they claim 11th Amendment.  They claim all these rules. 

The long and short of it is simply for this discussion is that immunity principles apply to government agencies, and they can be very tricky to deal with. You definitely don't want to do these by yourself. You want to have an experienced civil rights lawyer help you with that kind of claim.

And I can tell you, these can even come back to bite the most experienced among [00:07:00] us. They're extremely tricky rules. 

The next we have is qualified immunity and you hear about this one a lot on the news. I plan to do a whole separate podcast about this rapidly shifting area of law. It boils down to this: qualified immunity is a judge created principle, it's not based on any statute that shields government officials from civil liability unless they violate quote, clearly established end quote, civil rights.

And this comes up a lot in the context of police accountability. So the problem -- one of the many problems with qualified immunity --  is that there's a lot of game playing that goes on in the litigation. So, for example, you might have established case law that says it violates someone's 5th [00:08:00] Amendment rights to bodily integrity to be shot in the back by a police officer while running away.

And then in the next case for someone shot in the face, they say, "well, I didn't know this was clearly established. I mean, I knew I couldn't shoot him in the back, but now you're saying I can't shoot him in the face. That's not fair."  There's a lot of controversy over this line of litigation, but it is still very active.

And it comes up, I would say, in every single case I have in which a public official is sued in their individual capacity.  What is clear, though, is when you sue someone in their official capacity.  So, when you say "I'm suing you, not because you had a direct hand in what went on, but because you're the head of this agency and you were a policymaker, so you have your as a leader of this organization In your official capacity, you're on the hook for this."

You cannot get qualified immunity for this. And frankly, one of the best cases on this discussion is Mendiola versus [00:09:00] Arpaio out of the Ninth Circuit, which was one of my cases where Sheriff Arpaio was found not to get qualified immunity for a lawsuit in which he was sued in his official capacity, not in his individual capacity.

Next kind again, diplomatic immunity, and it applies to foreign diplomats. And it, it's based in the Geneva convention or excuse me, it is based on the Vienna convention on diplomatic relations. And there is a reason for this, while it may have extremely unfair outcomes at times. And the thought is that.

It would be too easy to use diplomats as pawns politically by arresting them, whether or not the charges are legit or not. It would be far too [00:10:00] dangerous to do that. Have that opportunity, even give governments that opportunity. You could just imagine the tit for tat that would go on. So the signees to the Vienna Convention agree that there is diplomatic immunity for, for diplomats, sometimes for their families but diplomatic immunity for criminal conduct.

The next kind is, is actually a two fold kind. You see this a lot on cop and lawyer shows. It's actually a pretty detailed and tricky area. And that's called just criminal immunity. At least that's what I'm going to call it. And there's two kinds here. The first is this. You are immune from prosecution based only on Circumstances where you have been compelled to incriminate yourself.

So for example, when I did a lot of [00:11:00] police union work. The police agency would come to me and say, "Hey, we want to talk to your client." And there's a whole bunch of mother-may-I, that must go on. There's a lot of paperwork, but the real answer that I needed to get. 

And that a lot of agencies were real sketchy with is, is my client compelled as a condition of their employment?  Is the government compelling them to give this statement? If not, they're not going to give one. If they are going to give one, that means they, that. statement cannot be used against them because it's been compelled. They've been forced to give it in direct violation of the fifth Amendment right not to incriminate yourself.

The next kind is testimonial immunity. And there's two subsections of that. Testimonial immunity is also known as snitching, as flipping, you can, you know, use rats. There's all kinds of derogatory [00:12:00]terms for this. And it basically is, if you help the government, they usually make you some kind of assurance that what you say is true won't at least make things worse for you. 

The most common kind of testimonial immunity is called use immunity. And it means in essence, we can't use your words against you directly, but if other stuff comes up in the investigation, we could still charge you.  And the example that I often give is, so if I, if you have someone cooperating with the government and they say, "I know where the body is buried, it's buried under the oak tree, you know, 50 paces from the road at mile marker 13."

And the government goes out, digs up the body, and your DNA is on the body, they could still charge you with whatever crime is involved in that body ending up there. 

The next kind of immunity is [00:13:00] rare. Contrary to what all viewers of The Shield watched in the final episode. I hope this isn't a spoiler.  This show's 10 years old now, or older.   When Vic Mackey gets full immunity for everything he's done. And for those of you who watch the series, it was a lot, but he gets full immunity, meaning all ye, all ye in come free. You help us, we won't prosecute you period and stop very rare. You've got to be a really attractive target to get that kind of immunity.  And I would just say don't ever expect to get that. That, that would be unusual. 

Now there are some other forms of immunity that come up actually quite a bit in my civil rights practice, but aren't as common in our general Parlance, and those are they're specific kinds of immunity that are designed to encourage people to do their jobs.

[00:14:00] So, for example, legislative immunity protects lawmakers from lawsuits over things they did as part of their official duties. And the example they give you in law school is if you say it on the floor of the legislature, you can't be sued for it. for it. You can't be sued for promoting a law that blatantly violates the Constitution.

You can't be sued for saying someone, one of your political arch nemeses is an immoral philanderer who sleeps with the secretary and anything that moves. If it happens on the floor of the legislature, The general rule is you can't be sued for it. It doesn't even get to the merits of whether or not it would be a good defamation claim for the other side.  You can't even bring the suit. 

Judicial immunity shields judges from liability for decisions made in their official capacity. So you can't sue a judge for making a ruling you don't like. You [00:15:00] can't sue a judge for ruling in a way that is later overturned on appeal. This gets tricky when you get into claims of corruption, but the general rule is if it has to do with what the judge did or said, while seated on the bench, it's going to be very difficult to bring a lawsuit against them.

Again, we don't even get into the merits of the claim. The idea is and it's. It's going to be the same for prosecutorial immunity in the first place is we don't want people chilled from doing their jobs. And if judges are scared, they're going to be sued every time they make a ruling people don't like, then they won't do their jobs.

There are other remedies to address in theory, there's other remedies to address a bad judicial ruling. And that's with the court of appeals. 

So the, another one is prosecutorial immunity and that shields prosecutors from acts that are within their core duties as prosecutors. But the, the, the language there that's really important is core duties [00:16:00] of prosecutors.

There's one case out of the Arizona district by Judge Marquez that says, I'm, I'm summarizing here, but misrepresenting evidence to the grand jury is outside of your core duties because you're required to present truthful evidence to the grand jury.

But a real clear cut case of where that immunity would not apply, I believe, would be if no matter what the weight of the evidence was or the accuracy of the evidence was presented to the grand jury, once the prosecutor received an indictment, if the prosecutor goes out Holds a press conference and says, "so and so is guilty and we have the proof and we don't even think this guy should bother, you know, fighting this's, he's clearly guilty." 

If they're wrong, they could be sued for defamation and that is the essence of the lawsuit going on against Maricopa County right now [00:17:00] regarding the freeway shooter from several years ago where they thought they caught the guy. They put him in jail. They published his mugshot held all these press conferences saying we got him.  It was the wrong guy 

And you can imagine the guy who was wrongfully accused of this is pretty upset and is now suing for all kinds of damages for for having his face and name defamed like this.  

Another area that is really tricky is litigation immunity. And that says that you can't be sued. It's usually in the context of defamation, so I'll keep it in that topic area right now. You can't be sued for defamation for something you put in a pleading and file with a court.  And that goes to lawyers and litigants. 

And this is why I think the U. S. Department of Justice has become so enamored with the use of what are called speaking indictments.  It used to be federal indictments named the charge when the offense happened and the statute violated. [00:18:00] And that's about it. And now you'll see these 50 page indictments listing all these, you know, horrible, list of horribles that have happened, true or not. And basically daring the defense to counter it and they can get away with that.

And they get around as well, the ethics rules about speaking to the press about pending litigation because it's in the, it's in the indictment itself. So the thinking is, again, you want to flesh out, litigation is at least theoretically supposed to be this truth finding effort. And we don't get that if people don't fully plead their cases.

That brings us to presidential immunity, which I think a lot of us thought we knew the law on this, at least kind of knew it, because of the Nixon administration, but that all changed on July 1st, 2024 with Trump v. the United States. In that decision, there [00:19:00] are two kinds of immunity addressed. 

The first is absolute immunity, which is the same kind of immunity that legislators, judges, and prosecutors have.  we're talking about their core duties and the, the Supreme Court found The president cannot be prosecuted for exercising core constitutional powers -- the powers enumerated in Article III: commanding the military, issuing pardons, vetoing legislation, overseeing foreign relations, managing immigration, and appointing judges.

And Chief Justice Roberts stated neither Congress nor the courts have the authority to limit powers exclusively granted to the president under the Constitution. There could be a whole other podcast. I'm sure there's plenty on this. 

Being consistent with a unitary executive thought, mindset and theory that we go [00:20:00] all different directions, but the, the, the premise of this conversation, the purpose of this conversation is to just say that's absolute immunity.  And this is where it gets scary and where you heard in the oral argument, the questions about, okay, so if you send a SEAL team out to assassinate your political rivals, that you'd be immune from that. And Trump's lawyer said, yes, he would.

The core question there, the critical question is, was this the exercise of a core constitutional power? I would rather, let's just wait and see what happens with this administration, but that's going to be the key analysis. 

The second kind of immunity discussed in the Trump decision is presumptive immunity.  And that's for other official acts that aren't Within that core set of duties, but are, you know, the outer perimeter of his responsibilities that has a presumption of immunity presumption doesn't mean it's. Impossible to overcome. [00:21:00] It's not absolute, but you got to show why it shouldn't apply. And here you would have to show, and this is only as to criminal cases.  (I haven't gotten to civil yet.) 

Prosecutors would have to show that these charges would not threaten the power and function of the executive branch. What's weird, though, is the court emphasized that determining whether acts are official should not involve examining the motives behind them. And this is what was getting weird with the New York prosecution of Trump, the state law prosecution of Trump, where this decision was also saying.

You can't even use words and deeds, he said, as president, as evidence to support a crime that happened outside of him being the president. So, for example, we've got the hush money with Stormy Daniels and who paid what and tax evasion and [00:22:00] whatever. Those financial crimes, what, what this decision is saying is, if he said things, as president, if he was standing at the podium, the president with the presidential seal in front of him, or he did things, he called people, he directed people to do whatever, but he was president at the time, or you can show this was as part of his core duties you can't even use that evidence against him to prove a different crime, which is pretty sweeping. 

Usually there is other acts evidence that can be used to prove up something else. Lawyers will call it 404B unless you're in California and they renumbered everything, but just 404B, other acts of evidence shows acts in furtherance of a crime or showing knowledge of intent, motive, reason to lie. . . would all come in and here they're saying no, not if it happened,  [00:23:00] In the, in it, the Supreme Court is saying, no, not if these acts were done in the context of being the president of the United States.

The Trump decision did say that presidents do not have immunity for private acts unrelated to their official duties. And again, I'm just talking about criminal right now. This distinction ensures that personal conduct outside the scope of being president remains subject to legal scrutiny. 

What the Trump decision did not address directly is what's going to happen with immunity from civil suit. This became an issue with Bill Clinton during his presidency when Paula Jones sued him for acts that occurred prior to his presidency.

Jones v. Clinton held that the litigation could move forward that it had nothing to do with his official acts. And while it's inconvenient for him, it might, [00:24:00] you know, keep him from doing some presidential business. He had to sit for depositions and he had he could be sued. I don't know now that that will stand and given the Supreme Court's feelings, the current Supreme Court's feelings about the principle of stare decisis, that once we've ruled on something, we're not going to go back and look at it again, that principle may also be vulnerable, and frankly, Trump is very vulnerable to civil suit. I think is a charitable way to put that.

He, he makes a lot of people angry. He steps in a lot of messes that are probably unnecessary. So whether or not people can civilly sue him while he's president, I think, unfortunately, is up for grabs right now. 

What also wasn't really resolved with the Trump decision, Is what constitutes an official versus private act?

[00:25:00] Remember the discussion about sending in a SEAL team. It wasn't decided if that would be an official or private act. It could be argued that it would never be within the official acts of a president because it violates the Constitution. That would be a really difficult argument to bring. 

What wasn't resolved with the Trump decision last summer is what will constitute an official versus a private act of a president. I use the somewhat strained example of the DUI. If you know, the president sneaks out in the middle of the night to take his new sports car for a spin, drives drunk, hits someone, that probably does not constitute an official act, but they would also probably say "while he's not immune, you can't bring the prosecution. You can't sue him right now, criminally, until his presidency is over." 

And that's why you're seeing Jack Smith dismissing stuff, even if there is an [00:26:00] argument to be made that These were private acts, not part of his official duties. And in fact, with the documents case, this all happened after he was president.

The question that I start with, logically, is can committing treason ever be the official act of a president? There is an argument to be made that that could never be within his core constitutional duties because it's prohibited by the Constitution.

But I That would take threading a tiny needle with an even tinier thread and that gray area of what is a, an official act versus a private act, my friends, is where I think the action will be moving forward.

Hey, friends. 

Thank you so much for joining us at the Athena in the Well podcast. You can find us wherever you love to listen to podcasts, be that Spotify, Apple, YouTube, whatever tickles your fancy. Most [00:27:00] importantly, please hit like, and subscribe if you enjoy this content. It's my hope in 2025 that we continue to bring you information that is interesting, engaging, informative, but most importantly, helpful to you to allow you to not only survive, but also thrive in what promises to be a dynamic time in our lifetimes. Thank you.