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Recently, representatives of the US executive branch have made statements in their official capacities, asserting that Kilmar Ábrego García is a "terrorist", a member of MS-13, and a convicted criminal. These include statements to the press by spokespeople including the Press Secretary and Attorney General, and statements in court or submitted to the court by Department of Justice lawyers.

Suppose Ábrego García would be in a position to file suit for defamation, and could show that these claims are false and damaged his reputation. Would these officials have protection against defamation claims, by some form of immunity? In particular, is there a "clearly established" right to not be defamed, which would overcome a claim of qualified immunity?

kaya3
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Legislators have absolute privilege for remarks made during formal proceedings, and judges have absoluete privilege for remarks made in court.

Members of the Executive Branch, on the other hand, usually only have qualified privilege. According to Justia:

Qualified privilege may also apply when statements are made in the public interest and in good faith, although it can be lost if the speaker knowingly propagates falsehoods or acts with improper motives. Executive officials are more often covered by a qualified privilege than an absolute privilege.

USLegal.com explains qualified immunity as:

Qualified immunity only shields an administrative officer from liability if the officer’s activities are:

  • within the scope of his/her office;
  • are in objective good faith, and
  • do not violate clearly established statutory or constitutional rights of which a reasonable person would be aware.

Qualified immunity protects all, except the plainly incompetent or those who knowingly violate the law.

The example statements you made fit the first criterion, as these officials are acting in their official capacities. But if they know that the statements are untrue, I don't see how they could fit the "good faith" requirement.

Barmar
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There's no need to couch this question in terms of official immunity under constitutional law; statute law expressly addresses this.

Under the Westfall Act (i.e., Federal Employees Liability Reform and Tort Compensation Act of 1988), the officials in question would be immune from suit.

JD Montgomery
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