The Corner

Law & the Courts

The Deep State Knows How to Protect Itself

In response to (Mark Zerof/USA Today Sports/Reuters)

Kevin, yes Eric O’Keefe and the Wisconsin Club for Growth — two of the targets in the John Doe investigations I wrote about today — have filed suit against the prosecution team that made their lives so unrelentingly miserable. Unfortunately, that lawsuit — like many lawsuits against the “deep state” — faces multiple hurdles that are wholly unrelated to the underlying merits of the case itself. In fact, the federal Seventh Circuit Court of Appeals held that O’Keefe’s case was barred by the federal Anti-Injunction Act, which prohibits federal courts from enjoining some state proceedings. O’Keefe and the Wisconsin Club for Growth have petitioned the Supreme Court for review, and the Court will determine whether to take the case very soon. Yet the Anti-Injunction Act is just one hurdle that litigants have to clear. Prosecutors enjoy extensive immunities, damages are notoriously difficult to obtain, and injunctions can’t turn back time to undo the effects of suppressed speech or make terrified families whole.

The regulatory state presumes its own virtue and erects for itself a series of formidable legal defenses to true accountability. Not only is it extraordinarily difficult to obtain monetary damages from the personal pocket of a public official, it’s difficult even to get wayward or incompetent officials fired. Public officials almost always end up with free high-quality lawyers, settlements paid out of public funds, and the continued protection of civil service systems even when guilty of violating citizens’ constitutional rights. When suing the IRS, for example, one is confronted with an almost comical array of legal defenses, but when the IRS confronts a citizen, the citizen often bears the burden of proving his own integrity.

Just as the deep state can protect itself from litigation, it can also facilitate litigation when it so desires. John Fund and Hans von Spakovsky have done outstanding work exposing the DOJ’s practice of “sue and settle,” where it conspires with outside liberal legal groups to settle “friendly” lawsuits on terms that advance their shared leftist agenda–with a healthy dose of attorneys’ fees doled out to leftist legal activists. Thus, through fixed litigation, a federal agency can implement new guidelines and policies and justify them as “required” by legal settlements.

None of this should discourage a litigant from filing suit, but they should prepare themselves for a long, contentious battle. Individual litigation can bring individual justice, but systematic reform will require dismantling the deep state’s long-cherished legal protections.

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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