Ashcroft v. al-Kidd (10-98)

argument 10-98

Ashcroft v. al-Kidd

Supreme Court of the United States 56 min 4 speakers 8 chapters transcribed 4 days ago official recording ↗

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What is the core legal issue in Ashcroft v. al‑Kidd regarding immunity for prosecutors?

John G. Roberts 0:02

We'll hear argument next this morning in Case 1098, Ashcroft v. Alkid. General Cotill.

Donald B. Verrilli Jr. 0:08

Thank you, Mr. Chief Justice, and may it please the Court. This lawsuit seeks personal money damages against a former Attorney General of the United States for doing his job, allegedly with an improper motive. Yet the Attorney General, like the federal prosecutor in Idaho who sought the material witness warrant at issue in this case, was performing the functions of his office — There are three reasons why the petitioner should not be personally liable for money damages. The first is because the Prosecutor's Act of seeking the material witness warrant is integrally associated with the judicial process and entitled to absolute immunity. To view it any other way is to expose both line prosecutors and high officials to lawsuits by highly incentivized litigants based on their purportedly bad motives.

Donald B. Verrilli Jr. 0:53

That is something this Court has manifestly resisted and for good reason, because improper motives are easy to allege and hard to disprove. Allowing such suits to proceed would result in burdensome litigation and interfere with the ability of prosecutors to do their jobs. The second reason is that the Fourth Amendment was not violated and therefore qualified immunity applies. There can be little doubt that the statutory requirements of Section 3144 were met in this case, And equally, there can be little doubt that the subjective motivations of Attorney General Ashcroft or the line prosecutor are thoroughly irrelevant to whether a Fourth Amendment violation exists. This Court has repeatedly rejected subjectivity, explaining that otherwise time-consuming, vexatious, burdensome, and indeed destabilizing discovery and litigation would be the inexorable result.

Donald B. Verrilli Jr. 1:42

And the third reason, and the easiest reason, is that whatever one thinks the applicable law is, It was manifestly not the law in 2003 when the warrant in this case was issued by a neutral judge in Idaho.

Unknown 1:54

Can I ask whether your second reason doesn't boil down to saying that it makes very little difference whether Ashcroft is held immune by absolute immunity or by qualified immunity? Once you say that motive is not introducible with regard to the qualified immunity question, and once you say that he's using a witness subpoena and you can't look behind it as to whether he was abusing it for some other purpose, is there any difference between absolute and qualified immunity?

Donald B. Verrilli Jr. 2:35

Well, I take it there may be a difference. We think the Court should first decide the absolute immunity question, which is the way that this Court has historically handled questions when there's an absolute immunity question and then a qualified immunity one. I take it that the qualified immunity question in this case is one about whether motivations matter for the Fourth Amendment, whereas the motivation question in the absolute immunity sense, as respondents say it, is something broader. It's not limited to the Fourth Amendment per se. Their argument is if the prosecutor has bad motives, essentially, or a certain bad motive, an investigatory or purposeful bad motive to engage in preventive detention,

Donald B. Verrilli Jr. 3:11

that somehow pierces the veil of absolute immunity. That is something this Court has never accepted.

Unknown 3:17

Well, I thought the argument rather was that this is not as close to the core of the prosecutorial function as some of the other functions to which we have given absolute immunity. And since it's so dangerous, since there is such potential for abuse, We shouldn't confer absolute immunity on this particular conduct. But I don't understand why, if we agree with you on qualified immunity, there is any difference whatever.

Donald B. Verrilli Jr. 3:53

MR. Justice Scalia, to be sure, they are now making that argument in this Court that this doesn't fall, this isn't intimately associated with the judicial process. Below, of course, they said the reverse, that material witness warrants were associated with the judicial process and that the only difference is that that here they had a bad motive. So I've talked about the bad motive point.