B. Accountability and Immunity

Government officials and agents can be charged with crimes or sued—unless this Charter clearly protects them. The President, Vice President, and Members of Congress are presumed to have Civil Immunity for actions taken in good faith while doing their jobs. But the Supreme Court can remove that protection if their actions are extreme.

They do not have Criminal Immunity—not even for actions taken as part of their official duties.

It is ridiculous that, in what has traditionally been the world's most admired democracy, government officials have immunity for bad action. This idea began early and has expanded throughout our history.

The landmark case Marbury v. Madison is mostly remembered as establishing (I'd argue affirming) judicial review. But Chief Justice John Marshall also made a notable point about presidential powers. He ruled that some were reviewable and some were not: "By the constitution...the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience....and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion." Still, the founding era and early Republic had only narrow immunity protections.

In 1870, in the case of Bradley v. Fisher, judges were granted immunity from civil liability for their judicial acts, even when beyond their legal authority and done maliciously or corruptly: "In the present case we have looked into the authorities and are clear...that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when...in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." ² This opinion became a template for immunity expansion. It has been used to justify broad immunity, without recognizing individual accountability or legal remedies for wrongdoing.

In Congress, the immunity granted by the Speech and Debate Clause, which was intended to promote democracy, has grown to include immunity for all "legislative acts." ³ In fact, that immunity has been extended to congressional aides for legislative activities. ⁴

In the Executive branch, civil immunity now extends to acts within the "outer perimeter" of official duties, simply because the president should not have their attention diverted by private lawsuits. ⁵

Even more significantly, the president now has immunity from criminal prosecution for acts within their "core constitutional powers" and presumptive immunity for all "official acts." ⁶

Obviously, the notion that government officials are above the law has grown over the centuries, especially in recent times. This isn't what America is supposed to be. Looking back at Marbury v. Madison, Chief Justice Marshall hailed our government of laws, not of men, and warned against losing that guiding principle. But we lost our way. The clause here is intended to set that back to rights.

Police and law enforcement officers cannot use "Qualified Immunity" as an excuse for doing things a properly trained officer would know they do not have the legal authority to do. The Government must train officers in the Rights of the People before letting them work with the public. Not knowing the law is not an excuse.

Qualified immunity is equally outrageous when applied to law enforcement officials. In 1967, the Supreme Court ruled that police officers could claim immunity if they acted "in good faith and with probable cause." The ruling was narrow: officers needed to prove they acted in good faith and with probable cause, and the burden was on them to establish these elements. ⁷ Later, the court strengthened the burden for "good faith" before qualified immunity could be claimed. ⁸ What seemed like a reasonable protection for law enforcement was extended more broadly to school officials, but a slightly better test was put in place for the subjective element of good faith.

But in 1982, there was a sea change. In Harlow v. Fitzgerald, the Supreme Court removed the subjective test of "good faith" from the defense's requirements, completely. The burden was shifted to plaintiffs to demonstrate violations of "clearly established law." ⁹ On its face, this seems like a reasonable position to take. Unfortunately, this opened the door to a series of rulings that consistently raised the bar for overcoming qualified immunity, ¹⁰ and this was and is an injustice.

Qualified immunity has been so distorted from its original purpose (which may itself have been a form of judicial activism) that it is unrecognizable in its current form. It is routinely used by police as a shield against accountability in civil rights cases and criminal prosecutions. ¹¹

This clause quashes the qualified immunity doctrine, although there is a carve-out for actions taken within an officer's training. Even that carve-out includes an explicit duty on the government to properly train its officers.

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¹ Marbury v. Madison, 5 U.S. 137, 165-66 (1803).

² Bradley v. Fisher, 80 U.S. 335, 351 (1871).

³ See Kilbourn v. Thompson, 103 U.S. 168 (1881).

⁴ See Gravel v. United States, 408 U.S. 606 (1972).

⁵ See Nixon v. Fitzgerald, 457 U.S. 731 (1982).

⁶ See Trump v. United States, 603 U.S. 593 (2024).

⁷ See Pierson v. Ray, 386 U.S. 547 (1967).

⁸ See Wood v. Strickland, 420 U.S. 308 (1975).

⁹ See Harlow v. Fitzgerald, 457 U.S. 800 (1982).

¹⁰ See Anderson v. Creighton, 483 U.S. 635 (1987) and Pearson v. Callahan, 555 U.S. 223 (2009).

¹¹ See Corbitt v. Vickers, 929 F.3d 1304 (11th Cir. 2019); Baxter v. Bracey, 751 F. App'x 869 (6th Cir. 2018); Jessop v. City of Fresno, 936 F.3d 937 (9th Cir. 2019).