Immunities against personal liability afforded to President Trump and others in federal government have helped spur the turmoil and lawlessness we see every day in the present administration. These immunities result from gaps in the law and judicial doctrines developed over time. Congressional action and review of precedent by the courts could fix these incentives to lawlessness to create a measured personal accountability for government actors who engage in serious violations of civil rights. These steps could act as strong guardrails against rule by intimidation, vendetta, falsehood and whim.

There are two problematic immunities. The first is the virtually absolute immunity from any liability of the president personally as the result of the 2024 decision of six Supreme Court Justices in Trump v. United States. The second is the lack of effective mechanisms for holding personally liable those in the federal government who injure people and institutions through violations of their civil rights.

The absence of personal liability matters because it encourages malicious or incompetent actors to disregard acceptable and reasonable norms of behavior. Relieving actors of meaningful accountability for their actions prevents tort and criminal law from serving their social purposes of deterring unreasonable, reckless or corrupt behavior and avoiding imposition of unnecessary costs on society. Potential personal liability gives superiors pause before tolerating or insisting on subordinates’ recklessness; it gives subordinates reasons to question and disobey. The constraints personal liability provides are especially valuable when, as now, other independent sources of accountability such as inspector general offices are being dismantled.

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The president’s court-created immunity

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The majority opinion in Trump v. United States makes it almost impossible to try or investigate a president for any action in office — be it a war crime, treason or good old-fashioned corruption — that could be deemed within the “outer perimeter” of some broadly conceived duty, power or function in any way tangential to the presidency. But a president can be given appropriate latitude without being accorded nearly total absolution.

The president’s get out of jail free card tilts the balance of power established in the Constitution too far in one direction. It has emboldened the current president to undertake lawless and vindictive actions knowing he will never face personal consequences — including baseless suits in his own name and fatuous prosecutions by the Department of Justice while he himself can never be a defendant.

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The remedy gap for other federal actors

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With narrow exceptions for some illegal search and seizures, tort claims for unlawful actions can be asserted, if at all, only against the federal government, not the actors individually — and, of course, it is we as taxpayers who ultimately bear the cost. It should come as no surprise that ICE agents use excessive force and detain people, including bystanders and protesters, without probable cause.

The ICE experience also illustrates the enormous waste of resources that lawless behavior by unaccountable government actors. The “surges” in ICE deployments have tied up federal courts and exhausted the resources of U.S. Attorney offices around the country with habeas corpus and other cases to the exclusion of other judicial business. Attorneys decry the criminal and other pressing matters they are prevented from pursuing; many have resigned or been fired rather than carry out orders that they feel are neither feasible nor legally or ethically permissible, creating a vacuum of resources and experience.

Potential personal liability can have significant impact. One reason all those lawyers resign is their conscience, but another is the risk to their law licenses from following courses of action that violate the ethics of their profession. (For this reason, the Department of Justice is now proposing a regulation that would interfere with the core state function of running a state judicial systems and regulating behavior of all attorneys admitted to practice in their jurisdictions.)

Any new cause of action should be tailored so that it cannot be distorted into an easily weaponized one. But Congress can act to create rules that strike the right balance for in different circumstances. Courts can take fresh looks and refine the reach of their earlier decisions in light of the facts at hand. The rest of us must urge them to do so. Otherwise, we will face the perils we see around us today again and again in the future.

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James B. Kobak Jr. is a resident of Keene Valley and has been a lawyer for over 50 years. He is a former president of the New York County Lawyers Association and currently chairs the National Center for Access to Justice.