Just beneath the surface of the Trump immunity case lies the fact that our CJ system has gone so off the rails that few people—especially if they’ve done anything interesting like run for office or start a business—can be confident they haven’t committed multiple felonies. /1 Is it reasonable for future presidents and executive-branch officials to be concerned that the decision whether to prosecute them for *something* they did in office will end up being purely a matter of prosecutorial largesse? Absolutely—just like the rest of us. /2

Why have retaliatory-arrest cases—including recently argued Gonzalez v. Trevino—so confounded SCOTUS? Simple: Because courts have become deeply committed to ensuring that govt officials who’ve been plausibly accused of misconduct can avoid jury trials. /1
scotusblog.com/case-files/cas… Consider how low the stakes are for the govt officials in Gonzales compared to most criminal defendants—none are going to jail, it’s highly unlikely any will be fired or meaningfully disciplined if found liable, and they’ll be indemnified for any damage award regardless. /2

More thoughts on qualified immunity. Besides the fact that it is lawless, immoral, and bad policy, QI reflects breathtaking political naïveté by gratuitously creating a policy that confers a massive institutional benefit on a powerful special interest (LEOs) that’s paid for by /1 Victims of civil rights violations. Contrary to the self-serving pablum you’ll hear from its various apologists, QI’s primary function in our system is not to protect cops from frivolous lawsuits (there are other tools for that), it’s to protect cops from MERITORIOUS claims. /2

US police are very good at going after low-hanging fruit like traffic infractions, nonsense regulatory infractions, and low-level drug crimes—which is why ~80% of arrests are for misdemeanors. But they’re just awful at solving serious crimes like murder and rape, which is why /1

https://twitter.com/citizenfreepres/status/1743075120107725243

US clearance rates for homicide and other serious crimes are among the lowest in the developed world. Also, police enjoy low levels of trust in communities where crime is most prevalent, partly because they prioritize enforcement of BS “crimes” like this and partly because /2

1/ Few policy choices are more clearly spelled out in the text of the Constitution than the decision to embrace "Blackstone's ratio"—i.e., it's better that ten guilty men go free than one innocent man be convicted. That's why the Bill of Rights spills so much ink on crim pro. 2/ Of course, a govt that believes you are guilty of a crime—and is staffed by careerists with a clinically delusional sense of their own infallibility that flows from their near-total unaccountability—would strongly prefer not to be on the wrong end of Blackstone's ratio.

1/ Judges will tell you—and themselves—that qualified immunity is mostly about protecting police and other govt officials from distracting, potentially meritless litigation and constant second-guessing of their reasonable professional decisions. This is blatantly false.

https://twitter.com/billybinion/status/1705322947626356758

2/The rationalizations underlying SCOTUS’s invention of QI in 1982—namely, that police face financial ruin from damages awards; that they read court decisions in order to keep abreast of relevant doctrinal developments; and that there are other reliable avenues of accountability—

1/ This is an extraordinarily misleading description of forfeiture procedure from one of DOJ’s foremost (former) practitioners. He says that even with civil forfeiture, the govt has to “prove the crime” in order to forfeit the property. That is blatantly false. @thedispatch 2/ What happens in most forfeitures—as he knows very well—is that the property ends up being forfeited by default (which is euphemistically referred to as an “administrative forfeiture” in DOJ-speak.) Nobody “proves” anything. .justice.gov/afms/types-fed…

1/ HE CALLED DOWN THE THUNDER, WELL NOW HE'S GOT IT! — some thoughts on the latest Trump indictment, from most to least important. 2/ The most important thing to keep in mind is that we absolutely DO have a two*-tiered justice system, and anyone who says otherwise is selling something—like the idea that the system merits your trust, confidence, and support, which it emphatically does not.

*technically multi

/1 Prosecuting Trump represents a challenge that no one’s talking about, which is that unlike most defendants he almost certainly cannot be coerced into pleading guilty. That wouldn’t be such a problem if they had him dead-to-rights on a serious crime like murder. But they don’t. /2 Instead, he’s been accused of (and in my view likely committed) various crimes that are either difficult to define (incitement, or commonly go unpunished when committed by other high-ranking pols (mishandling classified docs).

/1 Spectacular, must-listen podcast featuring @domarkus interviewing one of John DeLorean's lawyers in his 1986 trial on racketeering charges in Detroit. It includes a jaw-dropping story of prosecutorial misconduct that I'll summarize below but must be heard to be believed.

https://twitter.com/domarkus/status/1483420092411039747

/2 It's a complex case, but one issue involves the existence or nonexistence of a holding companhy called GPD. DeLorean's counsel Juanita Brooks (who is a *fantastic* raconteur) begins the story at 36:40.

🧵 /1 Saturday morning con-law thread. Perhaps counterintuitively, the exact same govt action can be constitutional or unconstitutional, depending on what ends the govt is pursuing. This can be easily illustrated with the following hypothetical: /2 Imagine police go from house to house in a given neighborhood ordering people to stay inside until further notice. They’re not enforcing any law, court order, or other source of purported legal authority—just doing it on their own say-so. Constitutional or unconstitutional?

Looks like another horrific day ending in Y for our not-at-all-fundamentally-broken criminal justice system.

https://twitter.com/JasonRileyWDRB/status/1628786681976324096

Neither isolated nor anecdotal, BTW. More like persistent and horrifying. (Note the incredibly shoddy job of "investigating" the LMPD predator the first time his misconduct was reported—that's not exceptional either.)

🧵 Some processes are so hazardous and so complex that they require elaborate safety protocols—even at the expense of efficiency. Aviation is one, criminal adjudication is another. A new ABA report confronts the hazards of plea-driven mass adjudication. /1
cato.org/blog/plea-barg… Here’s today’s report from the ABA’s Plea Bargain Task Force, of which I’m a proud member: /2
americanbar.org/groups/crimina…

Something that deserves far more attention is that the police murders of George Floyd and Tyre Nichols (and many others) took place in front of multiple fellow officers who did nothing to protect the victim. This is like a flight crew doing nothing about a plainly drunk pilot. /1 What it conveys to me, among other things, is a deeply pathological institutional culture in which officers have internalized the notion that they are entitled to act as they see fit in the moment without being second-guessed—and certainly not by anyone who’s not a cop. /2

🧵For most of our history govt could—and often did—disarm people at will, often for overtly nefarious reasons. The Q now is whether govt may dispossess whole categories of people using mere labels—felon, unlawful drug user, non-citizen, etc. Courts appear appropriately skeptical. I say “appropriately” because generally it is inappropriate to attribute to whole groups of people immutable characteristics that render them unfit to exercise a particular right. Categorical disenfranchisement of “felons” is a shameful and antiquated counter-example.

Thanks for tagging me into this characteristically thoughtful thread. One of the best things about my job is the opportunity to interact with amazing scholars like you, @RachelBarkow, @CBHessick, @chris_j_walker, and so many others.

And yes, I do have thoughts. 🤠 /1

https://twitter.com/JCSchwartzProf/status/1621548055525818370

If "vicarious liability" is shorthand for rolling back Monell to make it easier to sue police depts and other govt agencies while leaving QI as a defense that individual rights-violators can assert to avoid personal liability then I certainly do oppose that approach—adamantly. /2

Horrifying story about an almost-certainly false conviction for murder that, besides ruining a probably-innocent man’s life, left the real killer at large and denied the victim’s family the closure they deserved. /1
eu.usatoday.com/story/news/nat… Oh, here’s a surprise—the conviction was primarily based on snitch testimony from cellmates to whom the alleged perpetrator just spontaneously confessed, as one does. /2

How bad is the rational basis test? Judges can’t even decide whether it is or isn’t a toothless rubber-stamp. (Narrator: It’s both, and a fraudulent charade to boot.) From IJ’s latest—and sadly unsuccessful—cert petition: supremecourt.gov/DocketPDF/22/2… Oh, and don’t forget that time a DOJ lawyer argued that invisible space aliens could provide a rational basis for a challenged law. I mean, who’s to say he’s wrong? I used to use radioactive space monkeys as my ne plus ultra—til I found out NASA was actually irradiating monkeys.

Having litigated occupational freedom cases in Louisiana, I can assure you that this “facility need review” requirement is every bit as shady and corrupt as it looks on paper. /1 ca5.uscourts.gov/opinions/pub/2… You might think “hypothesizing” justifications for the govt’s conduct would cross the line from adjudication to advocacy, and you know what? You’d be right. But the rational basis test isn’t really a test at all—instead it’s an empty charade masquerading as judicial review. /2

🧵New study shows the presumption of innocence is largely meaningless in federal criminal proceedings, where pretrial detention is the norm rather than the exception and judges/prosecutors routinely flout applicable legal requirements. /1 usatoday.com/story/news/pol… This is "technically" known as false imprisonment. Which is *technically,* a crime. Thank goodness for professional courtesy, amirite? /2

🧵When I go off on coercive plea bargaining—which I do because it's an illiberal, unconstitutional, and unconscionable practice that destroys the moral and political legitimacy of the criminal justice system—the most common refrain from prosecutors is.../1
nbcnews.com/think/opinion/… "Fine by us if you don't want plea bargaining—we're happy to take every case to trial and let defendants receive the full punishment upon conviction. Trust us, they'll be begging for plea bargaining after that." /2