dissenting:
I dissent from the majority opinion to the extent that it holds that former Attorney General Mitchell is entitled to absolute immunity from liability as to the constitutional actions for malicious prosecution. I would affirm the judgment of the District Court holding that, in this case, Mr. Mitchell can only assert a claim of qualified immunity.
The majority opinion appears to suggest that, because appellees’ cause of action is founded on a claim of malicious prosecution, the suit against Mr. Mitchell must of neces*410sity relate to “prosecutorial” (as opposed to investigative and administrative) functions performed by Mr. Mitchell as the Attorney General. I reject this suggestion.
It is of course well-recognized that the Attorney General is entitled to absolute immunity with respect to prosecutorial acts taken within the scope of his duties. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). However, as was noted in Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir. 1979), cert. denied sub nom Mitchell v. Forsyth, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1980).
Imbler v. Pachtman . . . utilized a functional approach. It suggested that even a prosecuting attorney would not be absolutely immune from suit for actions which are not closely connected with the judicial process. The Supreme Court’s holding was narrow: “We hold only that in initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages under § 1983.” 424 U.S. at 431, 96 S.Ct. at 995. The Court emphasized that the prosecutor’s activities “were intimately associated with the judicial phase of the criminal process,” and therefore, were “functions to which the reasons for absolute immunity apply with full force.” Id. at 430, 96 S.Ct. at 995.
Id. at 1213. Numerous other decisions, handed down both before and after the decision in Imbler, have distinguished between a prosecutor’s “quasi-judicial functions on the one hand and his investigative and administrative functions on the other, granting absolute immunity to the former and relegating the latter to qualified immunity.” Id. at 1213-14.
Of particular note is the decision of this court in Apton v. Wilson, 506 F.2d 83 (D.C.Cir.1974), holding that the Attorney General was not entitled absolute immunity for his part in directing the activities of the police in Washington, D.C. during the “May Day” demonstrations in 1971.1 Anticipating Imbler by two years, Judge Leventhal wrote for the court that:
In arguing for absolute immunity, the defendants stress the particular duties of the Attorney General, especially his broad supervisory responsibilities over much of the Federal criminal justice system. The Attorney General is on occasion referred to as the nation’s “chief prosecutor” as a kind of journalistic shorthand. However, the absolute immunity often accorded prosecuting attorneys cannot shield the defendants in this case, for the prosecutor’s absolute protection, like that of the judge from which it is derived, is both justified and bounded by the judicial traditions and procedures that limit and contain the danger of abuse.
* * sf. * * *
[Sjuch an extension of judicial immunity would not encompass the executive action complained of here — the making of decisions establishing policy as to clearing streets, making arrests, and confining those detained — for no comparable safeguards accompany them.
506 F.2d at 93-94 (footnotes omitted).
Following Imbler, this court once again ruled, in Briggs v. Goodwin, 569 F.2d 10 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978), that a prosecutor who was not involved in a prosecutorial/advocacy role was not shielded by absolute immunity. The court in Briggs recognized that absolute immunity
extends only so far as necessary to protect a prosecutor’s decision with respect to the initiation and conduct of particular cases. Imbler does not, in our reading, immunize prosecutors for any and all measures they may undertake in the course of wide-ranging law enforcement investigations or general fact-finding expeditions.
569 F.2d at 19-20. See also Tigue v. Swaim, 585 F.2d 909 (8th Cir. 1978); Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir. 1974); *411Hampton v. City of Chicago, 484 F.2d 602 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974).
In my view, the opinion of the majority in this case is inconsistent with this well-established precedent holding that the Attorney General is not always entitled to absolute immunity. In particular, the majority fails to recognize that “where the activities of the Attorney General depart from those which cast him in his quasi-judicial role, the protection of absolute immunity will not be available.” Forsyth v. Kleindienst, 599 F.2d at 1214-15.
In the instant case, appellees have alleged that
. . . Mr. Mitchell is liable for malicious prosecution because he conspired, with Chief Powell and others, to cause groundless criminal prosecution of plaintiffs in knowing violation of plaintiff’s Fifth Amendment rights, and for the purpose of preventing them from exercising their First Amendment right.
******
Although John Mitchell conspired to cause [Assistant United States Attorney] Moore to prosecute the plaintiffs, he himself neither participated in the actual prosecution of the case, nor performed any advocacy function in connection with the prosecution.
Appellees’ brief at 16, 18. I can find nothing in the record of this case to suggest that appellees’ claim is directed at any of the “prosecutorial” or “advocacy” activities of the Attorney General, nor can I find any indication that the activities complained of in fact involved some prosecutorial or advocacy function performed by Mr. Mitchell in his role as Attorney General.
I also reject the suggestion made in the majority opinion that the nature of the charge, /. e. malicious prosecution, is somehow determinative of the issue of whether the former Attorney General was performing prosecutorial/advocacy functions. Assuming that the other elements of the tort are met, a person may be liable for malicious prosecution if “he advises or assists another person to begin the [criminal] proceeding. ...” Prosser, Law of Torts § 119, at 837 (4th ed. 1971).2 This is precisely what Mr. Mitchell has been accused of in this case. It does not matter that, as Attorney General, Mr. Mitchell sometimes served as prosecutor/advocate. The claim here is that he sought not to act as prosecutor or advocate, but to conspire to cause the United States Attorney to act against the plaintiffs. This satisfies one of the elements of the common law tort of malicious prosecution and it takes Mr. Mitchell outside of the bounds of absolute immunity.
Finally, I reject the suggestion that Mr. Mitchell was shielded by absolute immunity by virtue of the position that he held. Indeed, this suggestion was specifically rejected in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), where the Supreme Court noted that:
Judges have absolute immunity not because of their particular location within the Government, but because of the special nature of their responsibilities .... “It is the functional comparability of [the prosecutor’s] judgments to those of the judge that has resulted in both grand jurors and prosecutors being referred to as ‘quasi-judicial’ officers, and their immunities being termed ‘quasi-judicial’ as well.”
Id. at 511-12, 98 S.Ct. at 2913. Similarly, in Forsyth it was aptly observed that
the Attorney General cannot effectively contend that his functions are coextensive with those of a prosecuting attorney. Though as a shorthand expression he has been called the nation’s “chief prosecuting attorney,” his duties and responsibilities are far greater than those of the ordinary prosecutor. The distinction is important because the Supreme Court in *412Butz and Imbler intended a functional test rather than one based on status or title. Butz particularly stressed the need to make an inquiry into the particular decision challenged to determine whether an official is entitled to absolute immunity-
599 F.2d at 1212 (footnote omitted). Absolute immunity is granted to prosecutors only where it is essential to protect the integrity of the judicial process, i. e. where prosecutors are performing quasi-judicial functions. No such claim can be made with respect to the alleged actions of Mr. Mitchell in this case.
The District Court specifically found that Mr. Mitchell did “not fall within the ‘initiating a prosecution and presenting the State’s case’ scope of Imbler v. Pachtman, 424 U.S. 409, 431 [96 S.Ct. 984, 995-96, 47 L.Ed.2d 128] (1976).” Memorandum and Order dated February 20,1980, reprinted in Appendix (App.) at 59, 64. On the facts of this case, that finding was fully justified and should not be set aside by this court.3 This being so, the judgment of the District Court denying the request for absolute immunity should be affirmed.
. The May Day activities referred to in Apton are very similar to the activities complained of in this case.
. In Dellums v. Powell, 566 F.2d 167 (D.C.Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978) we stated that
[mjalicious prosecution has four elements: (1) the defendant must be found to have instituted a criminal action against the plaintiff; (2) that prosecution must have ended in the plaintiff’s favor; (3) there must have been no probable cause to initiate the criminal proceeding; and (4) the defendant must have acted maliciously.
Id. at 191 n.65.
. The District Court order merely served to deny Mr. Mitchell’s motion for a judgment on the pleadings based on his claim of absolute immunity. The Court recognized that “[w]hether Mr. Mitchell can avail himself of a prosecutorial immunity defense must await further development of the facts in the case.” App. at 65, n.5.