(concurring in the judgment):
I am not in disagreement with much of the analysis and statements in Judge Bazelon’s present opinion, but I believe some of the facts are more favorable to Goodwin than the opinion recognizes, and I prefer to make several comments and rest my concurrence in the result on the following grounds. First, I continue to adhere to the views expressed in my dissent from the panel’s original decision in Briggs v. Good*418win II, 698 F.2d 486, 497-98 (D.C.Cir.1983). Second, it is my view that Goodwin has a valid factual defense in that he had given orders that government informants be excluded from the class of potential defendants represented by defense counsel and was justified in assuming that his orders had been carried out. Third, in addition to my opinion that Goodwin enjoys immunity as a witness, I am also of the opinion that he possesses complete immunity as a prosecutor, since I generally agree with the opinions expressed in Judge Wilkey’s dissent in Briggs v. Goodwin I, 569 F.2d 10, 29-61 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978).
I must also voice my disagreement with the view expressed in footnote 36 of the majority opinion. That view fails to acknowledge a basic principle of law that has been recognized as fundamental to American jurisprudence for over a hundred years: that those who participate in public litigation and who perform certain governmental functions are not to be subjected thereby to harassing civil litigation. This principle has been consistently applied to judges, prosecutors, legislators and presidents, as well as to witnesses. The law of immunity and its compelling justifications have been expounded by some of the greatest jurists in our nation’s history. See, e.g., Bradley v. Fisher, 13 Wall. (80 U.S.) 337, 351, 20 L.Ed. 646 (1872) (Field, J.) (“[Jjudges ... are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.”); Pierson v. Bay, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967) (Warren, C.J.) (“This immunity ‘is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that judges should be at liberty to exercise their functions with independence and without fear of consequences.’ ”) (quoting Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868)); Barr v. Matteo, 360 U.S. 564, 572-73, 79 S.Ct. 1335, 1340, 3 L.Ed.2d 1434 (1959) (Harlan, J.) (“The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government.”); Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950) (L. Hand, J.) (“The justification for ... [denying recovery] is that it is impossible to know whether the claim is well founded until the case has been tried, and to submit all officials, the innocent as well as the guilty, to the burden of trial and the danger of its outcome would dampen the ardor of all but the most resolute ....”) (quoted in Nixon v. Fitzgerald, 457 U.S. 731, 752, 102 S.Ct. 2690, 2703 n. 32, 73 L.Ed.2d 349 (1982)). My final objection to the personal comments in footnote 36 is that they are extrajudicial and serve no worthwhile purpose, as the Supreme Court has spoken.