It is common practice for lawyers at government agencies to tout their prosecutorial experience when later seeking jobs in the private sector. Read the biography of almost any antitrust lawyer at a major firm, for example, and you’re likely to see a list of cases he or she worked on while serving at the FTC or Department of Justice. Such lists do not just include victories, but also major cases that were fought and ultimately lost. When it comes to government regulation, success and failure are largely irrelevant. Even an unsuccessful prosecution generates press attention and large fees for the nominally private sector lawyers hired to defend whatever company is targeted.
In all the public discussion of tort reform, I have yet to see any proposals dealing with the costs unjustly imposed on businesses by regulators who bring cases that ultimately fail. Sometimes businesses can recover legal fees from the government, but this wrongly burdens taxpayers for the incompetence of state lawyers.
One reform, then, would be to eliminate the state-action immunity that prosecutors generally enjoy when exercising state power. If a prosecutor brings a case and loses, he should be personally liable for the defendant’s costs. Defendants would have the right to attach a lien to the lawyer’s current assets and any future income earned, meaning that lawyers who cash-in on their state work would have to bear the stigma of their prior failures.
The very notion of blanket immunity for state actors has little basis in the federal Constitution. There are some specific immunities enumerated in the Constitution, such as the Speech and Debate Clause, which protects members of Congress from prosecution for statements made during official congressional sessions. But this immunity fulfills a separation of powers function—it protects the legislative branch from the executive’s potential abuse of power. State action immunity for prosecutors, in contrast, serves principally to insulate individuals within the executive branch from any consequence arising from their malfeasance.
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