Civil Rights

How Can He Be Conservative If He Wants Limits on Government Power?


Wall Street Journal legal blogger Nathan Koppel claims Bush administration Solicitor General Paul Clement has begun "to embrace left-leaning causes." As evidence, he cites Clement's representation of Curtis McGhee Jr. and Terry Harrington, who were wrongfully convicted of a 1977 murder in Iowa after police and prosecutors fabricated evidence against them. They spent 25 years in prison before they were exonerated. In a case the Supreme Court is scheduled to hear next month (recently discussed here by Radley Balko), McGhee and Harrington argue that the prosecutors who framed them should not receive "absolute immunity" from liability for violating their civil rights.

Koppel is not alone in believing that it's surprising for a conservative to support that argument; the National Law Journal profile on which he draws (headlined "To Build Practice, Ex-Bush SG Embraces Liberal Clients") likewise plays up Clement's involvement in the case as dog-bites-man story. But how "left-leaning" must one be to think that prosecutors should be held responsible for knowingly using trumped-up evidence to convict innocent men and send them to prison for the rest of their lives? It may be a mark of state-worshipping authoritarianism to automatically side with the government in such a case, but is it really a mark of conservatism? I am honestly not sure, because it's not clear to me what it means to be a conservative, but Koppel seems to think so.

The lineup in this case suggests otherwise. As Balko noted, the left-of-center Obama administration is supporting the prosecutors, and so is the National Association of District Attorneys, along with the attorneys general of 27 states and the District of Columbia. Surely there are at least a few "left-leaning" officials among these advocates of absolute immunity for prosecutorial abuses. Perhaps the positions they're taking depend on the positions they hold, as opposed to their ideologies or their party affiliations. People's enthusiasm for limits on state power tends to wane when they wield it and wax when they don't. As Clement himself says when asked to explain his choice of clients, "What it signifies is that I'm no longer working for the government."

[Thanks to Manny Klausner for the tip.]

NEXT: Sanford-Rand 2012?

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  1. Hard cases make bad law, friend. You have to look past the isolated tragedy that this case represents, and realize that a broad ruling against immunity would produce a significant chilling effect on the ability of prosecutors to do their job keeping us and our children safe.

    I don’t know how much you love your children, but if my child were raped and murdered I wouldn’t want the prosecutor looking over his shoulder worried about a lawsuit while he’s working on making sure the perp doesn’t walk.

    1. By alowing the prosecutor the ability to pin it on an easy target, the real perp will probably walk.

    2. So, the more you love your children, the more power you want to give the government to protect them?

      Why would the prosecutor have to “look over his shoulder?”

      Can’t you make this same argument to justify giving police officers immunity?

      “I don’t know how much you love your children, but if my child were raped and murdered I wouldn’t want the cops looking over their shoulders worried about a lawsuit while they’re working on catching the perp.”

      It’s a really bad argument.

    3. The rest of us have to look over our shoulders. Why not prosecutors?

    4. They can by malpractice insurance like every other practitioner needs to do.

      I want every prosecutor looking over his/her shoulder. Just think of how many frivolous cases would never make into court. How many inncoent people would never see the inside of a jail cell, or worse. Think of how many mayoral and gubernatorial campaigns this would derail.

      Who knows, maybe it will clean the scum out of the system.

    5. Excellent trolling FTW

    6. Excellent trolling FTW

    7. Excellent trolling FTW

      1. FUCK!!!

      2. FUCK!!!

      3. FUCK!!!

    8. All you have to do is look at the guy’s handle to realize he’s just another troll. If that didn’t tell you, the “it’s for the children” line of argument should have — what, no “for a site called Reason”?

      1. You are confused. This site is called Hit And Run.

        And I don’t appreciate being called “just another troll”. I have kids, so I know that’s just slang for trollop.

        1. Props for the first usage of that word I’ve ever seen outside the context of Cindy McCain.

  2. I don’t know about you, but if my (hypothetical) child was on trial for a murder he/she didn’t commit, I would goddamn sure want that prosecutor looking over his shoulder.

  3. Its called personal accountability, Torpid.

    How about looking at the long view yourself-do you think that special rules for the king’s men make us safer? The real world has already given us the answer.

  4. Torpid, do you count prosecutorial absolute immunity as one of the animating principles of 1776?

  5. Torpid, do you know why there are so many towns/cities named Camden or Wilkes or Wilkes-Barre?

    1. I don’t.

  6. I disagree wholeheartedly with you comment torpid. Immunity for government agents nearly compels bad behavior. They are no different and under no other law than our own (this is a Republic [rule by law, not by men] remember?). If in my trade I act negligently or maliciously and someone gets injured then I am held accountable. Not ONLY to my employer but also to the criminal and civil justice system. No law enforcement immunity should ever exist. If an individual does not like having to take responsibility for their own actions then they should not choose that career. (The only example of immunity being included in the Constitution is the Letters of Marque and Reprisal clause. So Federal law enforcement doesn’t even have legal standing for immunity.)

    If I were that guy I would have paid special heed to Mal’s speech. “I aim to misbehave!”

  7. I see I am late to the party.

    Ohh, Hey guys. What’s up?

  8. There should not be a position where you can willfully engage in gross misconduct and be completely immune to any repercussions.

    It’s one thing to say a prosecutor shouldn’t get sued every time he puts someone away, or even when he screws up. It’s a whole different animal to say they get to frame people without consequence.

  9. The scary thing is that Torpid’s line of thinking is precisely what courts have done for over a century in justifying absolute immunity and qualified immunity. Much of the basis for the decisions is rank speculation.

    1. We are all torpid now.

  10. Too much government’s bad, m’kay?

    1. Pro Lib-

      I don’t know if you have ever examined the holdings in judicial and/or prosecutorial cases? Tell me that rank specualtion, at bottom, is not the fundamental basis upon which the opinions hang.

      1. Opinions are result-oriented. The judge wants a result and writes the opinion to get to it. At least with most appeals, more than one judge is involved, so there can be some lip service paid to rule of law.

  11. I irregularly read the Reason blog, but am I wrong to think that there’s been a sudden upsurge in articles referring to “conservatives”, with the implication that we libertarians are conservatives?

    Do libertarians think of themselves as conservatives? I certainly don’t use that word to refer to myself, except in the “socially liberal, fiscally conservative” short-hand description.

    1. maybe fiscal conservative, but social liberal… that’s the 30k view I often give people who don’t know what libertarian (although I’m more classic liberal) is other than it being for “whacos”

  12. So now I have to watch out for Balko AND Jake? Damn, reading about cases like this gives me a headache.

  13. There is a branch of conservatism that focuses on “law and order”. This branch will indeed side with prosecutors regardless of the facts.

    Joe_D: in a world that insists on dividing everyone up into “left” and “right”, libertarians and conservatives end up in the same half.

    1. Siding with the prosecution all the time is about as helpful to law and order as the public option would be to competition in the health insurance industry. ie, it’s framed in the same rhetoric, but it’s really deleterious to the desired outcome.

      I for one am proud to be a law-and-order libertarian. I favor a small, easily understood set of laws with punishment enforced strictly and ruthlessly upon all who dare break them — but only on those who dare break them.

      1. “law and order libertarian”


        1. It makes a hell of a lot more sense than a “libertarian anarchist”. It takes a significant amount of collective to make individualism workable. Anarchy inevitably gives rise to the worst kinds of oppression.

    2. I strongly object to lumping myself in with conservatives (without the ‘fiscal’ qualifier); I’d rather say independent than liberal/conservative or left/right… independent is a common enough term now that it doesn’t sound awkward. ‘Conservative’ carries way too much religious, anti-sex, family values, paternalistic big-gov’t connotation… or maybe I’ve just lived in CA too long.

      1. If you favor strong property rights, you’re to the right. If you favor individualism over collectivism, you’re to the right. If you favor meritocracy over strict egalitarianism, you’re to the right.

      2. I strongly object to your objection to being lumped in with conservatives. Maybe I haven’t experienced the biases in CA, having not ever been there, but I don’t understand the anti-sex paternalistic big-gov’t bit at all. Yeah, a lot of us believe in God and family, but are you actually saying that’s a bad thing?

        As for the issue here, there is no good reason for prosecutorial immunity. I’d be happy with something like I believe should be in place for doctors. There should be limits on judgments in cases where wrong was done unintentionally, despite following accepted protocols. But in cases where there was gross negligence, or intentional wrong-doing that caused harm, they should get whatever a judge or jury found to be appropriate, without artificial limitation.

        1. I don’t think libertarians think God and family are bad things. The objection libertarians have with religious conservatives is the religious conservatives’ belief that thier behavioral norms should be ensconced in the law. This leads to the criminalization of behaviors, that while objectionable under religious doctrine, aren’t really crimes.

          When it comes to the law, the position of many Christians is that we can’t make you believe in God, but we can and will use our political power to force you to live as if you do believe in God.

  14. More good news: Bill Gates wants you to pay for more foreign aid.

    1. Hey, that is good news…..

  15. So if you’re Nathan Koppel, and you self-identify as conservative, why would you want to label something like this as a left-wing position?

  16. I wonder how Paul Clement sleeps at night, knowing that if this case had come up a year earlier, he’d probably be filing a brief for the other side?

    How anyone with honor can serve as Solicitor General is beyond me.

    1. If you were an attorney, you wouldn’t have to ask that question.

      1. Well I’m an attorney and there are some things I just wouldn’t do because I want to sleep well at night and look at myself in the mirror each morning. I do criminal defense–could never be a prosecutor because most of their cases involve consensual “crimes” and I could never send someone to prison, or even saddle them with a conviction, for doing something I myself have done in the past. In that respect I am proud to distance myself from out last three presidents.

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