The dialogue runs thus, toward the end of the argument, before the Supreme Court — perhaps Mr. Lane’s strongest exchange “the governement here presents us a solution, in search of a problem. . .”:
. . .Mr. Lane: –Well, what I say about that is that — and again, I know this is not an answer that you are probably going to like, because this means a trial is involved, but this is what juries do on a daily basis throughout this country, in every criminal case.
What is the subjective intent of the defendant?
In every civil case, is this an intentional act, a knowing act, a reckless act, a negligent act?
That’s what juries do.
And if there is enough evidence to get this case to trial — and I — I would posit it that in this case, where you have agent after agent after agent who saw the encounter up close and personal with the Vice President and Mr. Howards, none of whom saw any evidence of any criminal activity by Mr. Howards, all of whom let Mr. Howards walk away from the scene, that’s good evidence that–
Chief Justice John G. Roberts: One reason that I in fact don’t like the answer is be — because what the agent is now going to have to factor, in addition to the hostility of the — the views, the touching of the Vice President, the lying about it, the wandering around with the bag — is in the back of his mind — you know, if I’m wrong, I may be held personally liable in damages for taking some action that some jury somewhere is going to say is based on retaliation rather than my obligation to protect the Vice President.
Mr. Lane: –Well, I mean, theoretically yes, that — that could be a problem.
And — and I am quite certain that certain civil litigants, just as in criminal cases, people are wrongly accused of things that they didn’t do, they end up in a trial, and sometimes juries get the wrong results and an injustice occurs.
We can’t fix all those problems when it’s not really a significant problem.
There are no run on the courtrooms around the land of these kinds of cases arising.
We don’t need to have any rules that specifically pertain to the Secret Service when to my knowledge, this Court has had one Secret Service case in its entire history, and there are 15 appellate-reported Federal decisions regarding retaliatory arrests, period. . .
Now we wait for an opinion. Sadly, I think it comes out 6 to 2 (Justice Kagan recused; prior involvement in the case as a government lawyer) that there is no cognizable claim here, under the first amendment, even with Mr. Lane’s skillful advocacy.