By Mark Huguley
Editor’s note: This op-ed was first published by the Charleston City Paper.
Anglers know you can often catch a big fish with a smaller fish. The world of law enforcement uses the same tool through the practice of granting legal immunity to shield some people from criminal charges based on how they help further the cause of justice.
When I was an investigator with the state, I learned to think about legal immunity from criminal prosecution as something granted by a prosecutor to a witness in exchange for testimony to advance the criminal prosecution of a “bigger” offender in some cases. Organized crime figure John Gotti was convicted, in part, this way.
After the U.S. Supreme Court’s 2024 decision granting absolute immunity from prosecution for official acts by presidents, I became disturbed by the possibility that this immunity might encourage malfeasance. What I soon discovered was that immunity is a broad and complex concept that should be considered with the concept of privilege, which guarantees specific rights that include the right to keep certain information secret. Complementary concepts, they’re essential for a just government if properly understood. But it isn’t all that easy.
The unchecked power of absolute immunity would pose a serious threat in the United States. It is both a threat to rights and the source of rights. It’s a tricky balance to get right, and the U.S. Supreme Court might have tipped the scales by blocking the prosecution of crime by presidents, both past and present. This sort of protection is extraordinary because privilege already guards against self-incrimination and now immunity prevents prosecution, too.
In our country, immunity and privilege are acknowledged in federal and state laws because of the fundamental rights that flow from the Immunity and Privileges Clause found in Article IV, Section 2, of the United States Constitution. So, the real challenge lies in how these laws are interpreted and applied. It’s a bit like driving on a roundabout where the direction of travel changes as you continue. U.S. Department of Homeland Security Secretary Kristi Noem proved it can be confusing when she testified, “Habeas corpus is a constitutional right that the president has to be able to remove people from this country,” according to reporting by NPR. She’s wrong. It isn’t.
Everyone likes to have advantages, and constitutional immunity and privileges provide them. They were instituted for the common good and to ensure an independent and functioning government. Whether and when they provide their intended benefit depends on the specific circumstances. They work together in our democracy to block an action, such as when immunity prevents arrest or prosecution, or to grant privileges, like habeas corpus to determine if someone’s detention is lawful.
Deeply connected to the Constitutional Convention in Philadelphia, immunity and privilege were priorities on the minds of delegates, including South Carolina’s four participating representatives, during deliberations. They reflect the importance of the broad and lasting rights established by immunity and privilege, even though these liberties were for white men with property, notably excluding enslaved people. This is due partly to the influence of S.C. delegate Charles Pinckney.
The police might never detain you in another state, but if they do, that state would be restrained from treating you differently as a non-resident because of the Immunity and Privileges Clause.
In addition to protections granted to citizens, the U.S. Constitution offers immunity to certain officials. Federal and state constitutions grant legislative immunity through what are known as Speech or Debate clauses In total, 43 states have identical or similar language in their constitutions.
Recently, U.S. Rep. Nancy Mace (R-S.C.) reportedly relied on this privilege on the floor of the U.S. House to make allegations of sexual abuse. There is, however, no explicit mention of presidential immunity to be found in the Constitution, unlike the protection afforded to members of Congress.
So against this background, some argue presidential immunity is neither a necessary nor an appropriate alternative to criminal prosecution. Where is the deterrence if official malfeasance goes unprosecuted?
Unofficial acts are not immune, but the distinction offers no difference when it comes to corruption.
Mark Huguley, retired from a 36-year law enforcement career as a SLED agent and FBI intelligence analyst, resides in Arcadia Lakes. He is a law enforcement historian.
