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While pundits and politicians were debating the question of whether a 10-year-old should have been forced to go to another state to have an abortion, the Indiana attorney general made a July 13th statement on Fox News that the doctor who performed the abortion was “a abortion activist acting as a doctor with a history of a failure to report.” Attorney General Todd Rokita further stated that his office would be looking into the doctor’s license as well as investigate whether she committed a crime by potentially failing to report an allegation of sexual abuse against a minor.

Almondator, CC BY-SA 4.0 https://creativecommons.org/licenses/by-sa/4.0, via Wikimedia Commons

On Thursday, July 14th, AG Rokita sent a letter to the governor complaining that his office hadn’t received confirmation from state agencies that the doctor had properly reported the abuse and abortion. Later that afternoon, The Washington Post reported that it had received records confirming that the doctor did submit the necessary reports in a timely fashion. Today, the doctor’s attorney announced that they filed a defamation suit against AG Rokita for his statements.

Can a prosecutor make statements like that to the press?

Generally, lawyers are expected to refrain from making any public statement about a pending case or investigation that “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Specifically, prosecutors are expected to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.” In this case, the statements made by AG Rokita were not only arguably prejudicial but demonstrably false.

Aren’t prosecutors protected by absolute immunity for things they do while doing their jobs?

The doctrine of absolute immunity generally shields good faith actions that a prosecutor takes while doing their job. What this means is that, in most cases, people aren’t likely to be able to successfully sue a prosecutor who has done something wrong. However, courts have concluded that this immunity doesn’t cover situations where a prosecutor is acting as an investigator