Hillary Clinton will never be indicted for any alleged improprieties regarding her private email server, and here’s why.
It is a common assumption among most Democrats that there is no way in hell that a judicial branch headed up by Pres. Barack Obama will ever indict presumptive Democratic nominee Hillary Clinton for her use of a private email server. No one expects Obama’s Justice Department to derail Clinton’s ascension to the presidency.
However, no one is really talking about what happens in the unlikely event the FBI investigation concludes that criminal prosecution is warranted. (And so far there are no indications from the FBI that there are any improprieties or irregularities reaching the threshold level to form the basis of an indictment.)
And the answer is really quite simple: Prosecutorial Immunity, the absolute immunity[1] that prosecutors in the United States have in initiating (or declining to initiate) a prosecution and in presenting the state’s case.
The U.S. Supreme Court held in the 1976 case Imbler v. Pachtman that immunity protects against “concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.”
Furthermore, as Watchdog.org reports, prosecutors “need not worry about punishment. In a legal system where prosecutorial immunity is as entrenched as habeas corpus, prosecutors are gods.”
The Shriver Center elaborates on this concept[2], writing:
Prosecutors enjoy absolute immunity from damage liability for the initiation and prosecution of a criminal case.[3] The Supreme Court, relying heavily on considerations of policy, reasoned that initiating a prosecution and presenting a case are activities that are “intimately associated with the judicial phase of criminal process, and thus were functions to which the reasons for absolute immunity apply with full force.”
In short, federal prosecutors have total discretion in determining whether or not to indict Secretary Clinton, regardless of the outcome and recommendations of the currently ongoing FBI investigation.[4]
FOOTNOTE 1: Absolute immunity is a form of legal immunity for government officials that confers total immunity from criminal prosecution and lawsuits so long as they are acting within the scope of their duties without regard for motive. Absolute immunity contrasts with qualified immunity, which only applies if specified conditions are met.
FOOTNOTE 2: From the Sargent Shriver National Center on Poverty Law, Federal Practice Manual for Legal Aid Attorneys.
FOOTNOTE 3: Imbler v. Pachtman, 424 U.S. 409, 423-24 (1976). See Mangiafico v. Blumenthal, 471 F.3d 391, 396-97 (2d Cir. 2006) (absolute immunity for state attorney general who declined to represent state employee in civil litigation against him).
FOOTNOTE 4: Although any claims of misconduct on the part of federal prosecutors would be premature at this point, and possibly irrelevant in the future depending the outcome of the FBI inquiry, Kathleen Ridolfi, director of the Northern California Innocence Project, was cited USA Today in 2010 as stating that: “Prosecutors know. .. they can commit misconduct with impunity.”
That quote comes from page 60 of a 2010 report released by the Northern California Innocence Project entitled: “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009.” The report concluded, in part, that the remedy to prosecutorial misconduct lies in converting their immunity from absolute to qualified, opening the door for accountability for misconduct.
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