A blockbuster ruling by a district court judge — meant to apply precedent, not make it — urging the end of qualified immunity could soon reach the Supreme Court and help shape President Trump’s fate. He claims an “absolute” species of it to block the criminal charges he faces with respect to January 6. 

Judge Carlton Reeves, though just a trial judge sitting in Mississippi, is no stranger to butting heads with the highest court in the land. In the wake of New York State Rifle & Pistol Association v. Bruen, he lamented that “errors define the Supreme Court’s own Second Amendment jurisprudence.”

Bruen mandates that judges evaluate laws restricting access to guns by asking whether the regulations are “consistent with the Nation’s historical tradition of firearm regulation.” Judge Reeves, though, writes, “This Court is not a trained historian. The Justices of the Supreme Court, as distinguished as they may be, are not trained historians.” He considers the standard unworkable. 

Now, Judge Reeves has set himself against another ruling from on high. In Desmond D. Green v. Jacquelyn Thomas, et al., a “lying, drug‐impaired jailhouse informant” was used to frame an innocent man for murder and imprison him in a prison “full of violence, rodents, and moldy food.” The informant recanted and Mr. Green was eventually released. He sued the detective, the city of Jackson, Mississippi, and the operator of the detention center where he was confined. Judge Reeves found in his favor, and denied the defendants’ effort to dismiss the suits.

At stake is 42 U.S. Code § 1983, which provides for the ability to sue for monetary damages in the event that a person’s constitutional rights are violated “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia.” It was signed into law by President Grant as the Ku Klux Klan Act but languished until 1961.

That’s when, in Pierson v. Roy, the Supreme Court held that under the statute’s terms officers were entitled to a “good faith” immunity, even though that standard is not written into the law itself. Chief Justice Warren wrote that a “policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.”

In 1982, in Poppy v. Harlow, the high court discarded a “good faith” standard in favor of the position that “officers are entitled to qualified immunity so long as they do not violate what the Court called ‘clearly established law.’” This has proven to be a very exacting standard, as what is required to pierce the shield of immunity is a prior court ruling that the specific behavior at issue is crosswise with the Constitution. A general sense of violation is not enough. 

Judge Reeves now wants to topple that standard, writing, “It cannot be true that in America, it is easier to take away one’s liberty than hold the government accountable for violating the very Constitution guaranteeing liberty.” He adds that “qualified immunity has no basis in law. It is an extra‐constitutional affront to other cherished values of our democracy.”   

The shot across the bow at qualified immunity comes as the Supreme Court weighs the scope of the criminal immunity that attaches to the presidency. Mr. Trump claims that, like civil immunity, it is “absolute” for acts within what the justices have called the “outer perimeter” of presidential duties. Special Counsel Jack Smith, though, argues that a former president is not entitled to such ironclad protection if his conduct was criminal. 

Just as cases of qualified immunity turn on the definition of  “clearly established law,” so presidential immunity could hang on what manner of presidential acts are deemed “official.” The Supreme Court could remand United States of America v. Trump to the district court for fact-finding on that front, which would likely take months. Mr. Smith could also elect to slim down his indictment to include only purely “private” acts. 

The qualified immunity that Judge Reeves contends “has no basis in law” is intended to protect government actors from what the Supreme Court calls “insubstantial” suits that limit the efficacy with which they can do their jobs. So, too, presidential immunity flows from the concern that, as Jefferson wrote, the “several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties.”

Justice Antonin Scalia called that which is to be protected “the boldness of the President himself,” and Mr. Trump in his argument to the justices evokes the possibility of a dystopian future where prosecuting presidents is de rigueur. The case that concerns the 45th president, though, will only be precedent for the highest federal office, while Judge Reeves’s constitutional provocation could affect thousands. 

Judge Reeves did not respond to a request for comment by press time.