If I simply made up facts in a newspaper story because I wanted to smear somebody, my newspaper and myself would face a lawsuit. It's hard for public officials to file such suits, because they have to prove malice rather than an honest mistake. That's designed to keep public officials from filing cheap lawsuits after they've been criticized in the newspaper. But made-up facts would certainly meet that legal test for malice.
Of course, at the end of the day, even if I were determined to engage in professional misconduct, all I could do is make someone look bad. I can't put people in jail. Prosecutors, however, can make up evidence and have defendants sent to prison for murder without having to face lawsuits if they get caught. President Obama's nominee for the Supreme Court, Elena Kagan, agrees with this absolute immunity.
In Pottawatomie County v. McGhee, the U.S. Supreme Court heard arguments in an Iowa murder case that involved allegedly faked evidence. The defendants wanted to pursue a lawsuit after spending 25 years in prison on a conviction overturned in 2003.
Solicitor General Kagan filed a brief last year on behalf of President Obama's administration, arguing that prosecutors should enjoy absolute immunity from lawsuits, even when they make up evidence. Kagan says this extraordinary protection isn't a problem, because "rigorous discipline by the bar association is a potent tool for ensuring that prosecutors live up to the responsibilities of their office." (The case was settled before the U.S. Supreme Court could rule.) Articles about the case are here and here.
Maybe during her Senate confirmation hearings, the lawmakers could ask about this.
Hat tip to blogger Jennifer Abel for spotting this.