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Supreme Court case on vindictive prosecution
The Supreme Court just handed down Hartman v. Moore. A quick read indicates that plaintiff engaged in a powerful lobbying campaign to get Postal Service to adopt a new technology, and was then indicted on kickback allegations. At trial, charges were dismissed for lack of evidence. Plaintiff sued, alleging that the prosecution was a "payback" for its lobbying, which was First Amendment protected.
The Supremes ruling: (1) the prosecutor is absolutely immune and cannot be sued, period (pretty much standard law); (2) where the government retaliation is something other than a criminal prosecution, it is enough to show that the government action would not have occurred except for the constitutionally protected act ("but for" causation); (3) but where the retaliation is a criminal prosecution, plaintiff must show that PLUS lack of probable cause ("strong suspicion" that an illegal act occurred). Since lack of probable cause = ground for suit for false arrest anyway, this makes a retaliation suit in a prosecution context a bit more complicated than false arrest, rather than simpler.
I suppose I can see both sides of the question, but it does illustrate that suing the government, even when it is punishing a first amendment exercise, is rarely a simple thing.
It begs for tort reform of the exceptions under 28 U.S.C. 2680(a) unless the victim of vindictive prosecution can show that the indictment was wrecklessly sought and obtained (proving the "due care" was not excercised).
Where is the check and balance system of our Republican form o Government when federal prosecutors can run willy-nilly without effective checks and restraints that would eliminate vindictive prosecutions?
At this rate why not have a law that requires every citizen who doesn't volunteer into the military services to spend 1 year in prison in order to have credit for time served in the future if the government is free to prosecute people just for retaliatory political reasons?
Isn't that a what makes a fascist country?