As part of the Reopen Government Act passed by the Senate, then by the House, and signed into law by the President, Senate Republicans had slipped in a provision allowing Senators to sue…the government…over having had their cell phone records secretly collected by Federal government Special Counsel Jack Smith, who was pretending to investigate the January 6 Capitol Hill riot participants.
Notably, the bill explicitly strips federal officials of qualified immunity—a legal doctrine that has long shielded government agents from personal liability even in cases of egregious constitutional violations.
Aside from the fact that a successful suit by a Senator would result in us taxpayers paying the judgement rather than the government officials who did the deed, it would exclude House members, and worse, us average Americans from that capacity.
There’s an alternative to that that would be more far-reaching than just rescinding the Senate’s amendment.
Contrast this with the fate of the Bivens Act of 2024, a modest bill that would have amended America’s premier civil-rights statute. Under Section 1983 of the US Code, Americans can sue state and local officials for constitutional violations, but federal officials are virtually untouchable. The Bivens Act would change that, while still keeping qualified immunity as a defense. The bill sought to codify a cause of action that the Supreme Court has steadily eroded over the past two decades. It died in committee without a vote.
The House needs to revisit the Bivens Act and include it in their rescission bill.
And go a step further.
Qualified immunity for government officials is a highly useful judicial doctrine (not statute) which protects those persons from a plethora of frivolous suits. But the bar is too high, allowing some constitutionally miscreanting officials to skate on otherwise egregious behavior. An additional move that would mitigate this would be to change the onus from requiring the plaintiff to prove why qualified immunity should not apply in his case to requiring the defendant to prove why it should. And an additional step, which would mitigate all those suits that would turn on that proof: the loser of the case over whether qualified immunity should apply, must pay the winner all legal costs involved.
“An additional move that would mitigate this would be to change the onus from requiring the plaintiff to prove why qualified immunity should not apply in his case to requiring the defendant to prove why it should.”
This would violate the presumption of innocence, given existing law. And if the law were changed, it would create a burden of proof that would not only deter bad actions by officials (dubious), but many good, well-intentioned ones. Proving good intentions is essentially as difficult as proving bad ones.
Good point on the latter, but incomplete.
Regarding who has the requirement for proof of innocence, this is irrelevant. Proving who has the onus on demonstrating QI has nothing to do with guilt or innocence; it’s strictly a matter of whether a Federal government official should be differentially protected compared to State and local government officials. The level for State and local is appropriate; there’s no need to give special treatment to Federal officials since that’s not based on any concrete characteristic, only on their alleged Specialness as Feds.
I’m not worried at all about deterring good, well-intentioned actions since far too many government officials’ good intentions have “unforeseen” negative consequences, and at the Federal level those negative outcomes affect the lives of all of us American citizens, not just the citizens of a particular State or the residents of a particular urban jurisdiction. The breadth of effect is especially true given that the QI in question is centered on Constitutional questions, not statutory ones.
That’s a small price to pay for reducing an unwarranted special treatment from Federal officials.
Beyond that, there’s the 14th Amendment clause concerning equal treatment. Federal officials aren’t special enough to be held outside of that.
Eric Hines