Monthly Archives: June 2021

That may change thanks to a civil suit filed in March by Rep. Eric Swalwell (D-Calif.) against Trump, Donald Trump Jr., Alabama Rep. Mo Brooks and Trumps former attorney, Rudy Giuliani. The lawsuit, which alleges negligence, intentional infliction of emotional distress, aiding and abetting common-law assault, disorderly conduct, terrorism, inciting a riot, and conspiracy to violate civil rights protected under federal law, is pending in the U.S. District Court for the District of Columbia. And it has the potential to create new law regarding the scope of presidential duties that are considered official and therefore immune from legal jeopardy.

In their recently filed motion to dismiss the case, Trumps attorneys assert that Trump enjoys absolute immunity from lawsuits over statements he made at a Stop the Steal rally held at the Ellipse that preceded the riot. Presidents should be allowed to give rousing speeches against congressional action, Trumps lawyers argue.

But Swalwell argues that Trumps behavior that dayurging the crowd to fight like hell to stop the certification of the Electoral College vote by Congresswas not done on behalf of the country but himself. Trump did all these things solely in his personal capacity, for his own personal benefit, and to advance his personal interests as a candidate, Swalwell alleges in his suit.

And this is where a federal court, possibly even the Supreme Court, is going to have to attempt to make a distinction that has never been made before: Can a president act so self-interestedly that he loses the sweeping civil law protections that come with the worlds most powerful office?

Suits against a government office or official for money from government coffers or for an injunction relating to official conduct are routine disputes. The question here is whether former presidents should have to worry that they can be sued personally for money damages regarding acts they took as president. As a matter of logic, the answer should be: probably not, except in the rarest of circumstances. This is pretty much how the law has shaped up, too.

Although the Constitution expressly affords members of Congress immunity for matters arising from speech and debate, it is silent when it comes to presidents. The Supreme Court has taken upon itself to make up the rules for presidents, holding that they are absolutely immune from actions for civil damages in connection with acts within the outer perimeter of their official duties.

In the 1982 case, Nixon v. Fitzgerald, a former employee, A. Ernest Fitzgerald, sued Richard Nixon over his firing from the Department of Defense, which he claimed was in retaliation for his testimony before Congress about cost overruns and technical problems in the production of a particular aircraft. The Supreme Court extended to presidents absolute immunity from suits for money damages on the rationale that, without it, they would feel hampered in exercising their discretion in the administration of public affairs, thus harming the interests of the public. The upshot of the decision was that any lawsuits predicated on [a presidents] official acts are banned.

The question here, of course, is: What constitutes an official act? In Fitzgerald, the court explained that the sphere of protected action must be related closely to the immunitys justifying purposes and that, for presidents, it extends to acts within the outer perimeter of his official responsibilities.

Its impossible to create a comprehensive job description for presidents or to compare a real-world action to a list of tasks covered by Article II of the Constitution. Inquiries of this kind could be highly intrusive, the court wrote, especially as presidents are charged with a panoply of supervisory and policy responsibilities of utmost discretion and sensitivity. The court rejected Fitzgeralds claim that presidents could be sued for their role in dismissals from employment made for reasons other than authorized by Congress, reasoning that [i]t is clearly within the Presidents constitutional and statutory authority ... to prescribe reorganizations and reductions in force.

But is it within a presidents constitutional and statutory authority to incite a mob to block a co-equal branch of government from certifying the Electoral College victory of a political rival? This is a tougher sell.

Ironically, the Fitzgerald court justified its ruling in Nixons favor by pointing to the alternative constitutional remedy of impeachment, despite Nixon being out of office by the time Fitzgerald sued him. By the same token, a conviction on Trumps second impeachment for his role on Jan. 6 failed in the Senate on the Republicans ostensible rationale that he was no longer in office. The Fitzgerald court continued: Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a Presidents traditional concern for his historical stature. These guardrails, too, were shattered by Trump and cannot now be trusted, in the words of the Fitzgerald court, as sufficient protection against misconduct on the part of the Chief Executive.

In Clinton v. Jones, the Supreme Court bookended the spectrum of possible immunized acts for presidents at the other end, making clear that actions having no connection to the presidency are not protected, even temporarily. The court held that a president does not have even qualified, or lesser, immunity from civil lawsuits for money damages regarding conduct alleged to have taken place prior to his election. It thus denied President Bill Clintons request to delay Paula Jones sexual harassment lawsuit until his term was over. In Jones, the court rejected Clintons bid for a stay, reasoning that [t]he principal rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct, as immunities are grounded in the nature of the function performed, not the identity of the actor who performed it.

Previously, the Supreme Court shed light on the immunity question in United States v. Nixon, as well, holding that President Nixon had to comply with a subpoena directing him to produce tapes of Oval Office conversations with aides. It reasoned that neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

In the Swalwell case, Trumps lawyers cite Fitzgerald to claim absolute immunity for Trumps remarks on Jan. 6 but argue that [e]ven when a plaintiff alleges a presidents actions exceed his legal authority, the privilege still prohibits litigation. They further claim that the privilege is bounded by purely personal and purely unofficial actions which are not protected. In other words, they appear to argue that the Clinton case defines the only set of circumstances that are not protected by blanket immunity. Anything and everything that happens while a president is president cannot give rise to civil liability, unless it is purely personalsuch as, say, the writing of a private letter to a family member about an issue involving the family. This purely test is not the law, at least to date. Moreover, it flies in the face of the Nixon Supreme Courts rhetoric that there is no absolute immunity for presidents, even when it comes to conversations with aides in the Oval Office.

The Trump defense goes on to argue that rousing and controversial speeches are a key function of the presidency, especially when, as is the case here, the President is advocating for or against congressional action.

This is significant: Trump urges a ruling that it is within the official authority of presidents to advocate for the appointment and certification of electors other than those that the states have identified as granting the presidency to someone other than the incumbent. For his part, Trump implored his supporters on Jan. 6 to fight like hell and walk down Pennsylvania Avenue ... to the Capitol, and Swalwell claims that 40 percent of rally attendees complied.

The rest, of course, is history. Members of Congress and their staffers were trapped behind barricaded doors, the Capitol buildings ransacked and defaced, and five lives lost. Trump reportedly told those around him that he was delighted by the events and confused about why other people on his team werent as excited as he was.

(Separately, the Trump team argues that his speech was also fully protected by the First Amendment, although it is well-settled that speech directed to inciting imminent lawlessness and likely to achieve that result is not protected. Moreover, there is no First Amendment protection when public employees make statements pursuant to their official duties, a line of authority that would come into play if Trump were to convince the court that his Jan. 6 speech was an official act.)

The lower courts ruling on this issue could easily go one of two ways. Either the judge decides that inciting an insurrectionwhich is expressly mentioned in the 14th Amendment as a bar to holding federal or state officeis not within the protected official conduct of presidents. Or, he buys the claim that presidents can use their bully pulpit however they want, and absent an impeachment conviction, do so with complete impunity.

If this question were ever to reach the U.S. Supreme Court, its safe to predict that the outcome will not be unanimous because the law is vague, and the court is ideologically dividedby design, with the three newest justices appointed after McConnell killed the filibuster for Supreme Court nominees. Judicial conservatives tend to read presidential power expansively, and the threat of indefinite civil litigation over acts in office is likely to persuade a majority to draw the line in favor of executive discretion. But its also safe to predict that, if the court were to rule for Trump on the question of whether his Stop the Steal rally fell within the absolute protected power of presidents, Jan. 6-type insurrections will become common in America.

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The Confusing Law That Could Shape Trumps Legal Fate - POLITICO

But almost all of those up-and-comers have one common trait: they have embraced Trump. And for others in the party, that fealty is a sign of a party contracting, not expanding. The fear is that, as Trump lingers on the scene, aggressively intervening in internal party disputes and openly flirting with running again in 2024, it will only get more pronounced.

There is a lost generation of conservatives and I think its because theyre forced to tie themselves to Trump, one Republican operative said. There was an anti-Romney backlash, anti-Bush backlash When you lose the presidency whether an incumbent or challenger the party distances themselves and that is absolutely not the case here."

Political parties have gone through concerns about talent drains before. At the end of Barack Obamas presidency, Democrats warned that the bench of up-and-coming lawmakers he left behind was painfully thin as the party suffered tremendous setbacks in Congress and the statehouses. Trump, too, oversaw the loss of seats down-ballot. But unlike Obama, he has not receded from public view after leaving office. And his continued presence has sparked fears mainly, but not exclusively, from the GOP diaspora about the narrowing of the party.

"If the conservative cause depends on the populist appeal of one personality, or on second-rate imitations, then we're not going anywhere, former House Speaker Paul Ryan, who left Washington for Wisconsin two years ago, said last week on the first night of the Ronald Reagan Presidential Library & Museums "Time for Choosing" series. Voters looking for Republican leaders want to see independence and mettle. They will not be impressed by the sight of yes-men and flatterers flocking to Mar-a-Lago."

In a clear sign Trump was listening, the ex-president responded with a four-paragraph critique the next day. Paul Ryan has been a curse to the Republican Party, Trump said. Ryan didnt respond back.

Ryans fear about Trumps grip on the party is shared by top operatives who believe that few aspiring presidential candidates will choose to run if Trump ultimately does make a bid. So far, former New Jersey Gov. Chris Christie is the only potential 2024 contender who said he wouldnt wait around for the ex-president to make a decision first. Former U.N. Ambassador Nikki Haley has flatly said shed defer to her former boss before deciding on making a run.

As one close adviser coolly remarked: Theyre all so afraid [of] going first maybe? Or saying something that sounds like theyre moving on from the Trump years.

On the congressional level, Trumps impact on the composition of the party has been visible in obvious and subtle ways. He helped orchestrate the ouster of Wyoming Rep. Liz Cheney from leadership ranks, and either directly or indirectly drove numerous lawmakers to retirement. As FiveThiryEight noted, of the 293 Republicans who were serving in the Senate or House on Jan. 20, 2017 the day of Trumps inauguration a full 132 (45 percent) are no longer in Congress or have announced their retirement or resignation.

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Republicans fear Trump will lead to a lost generation of talent - POLITICO

Elected officials dont have the right to break the laws the rest of us have to follow. And they also shouldnt be able to obstruct justice when theyre under investigation. If anything, the bar should be higher for our elected officials. Congress, after all, writes the laws that form the architecture of our criminal justice system and should be responsible for obeying them.

Elected officials dont have the right to break the laws the rest of us have to follow.

When news that the Justice Department was investigating Rep. Matt Gaetz, R-Fla., for obstruction of justice in connection with alleged sexual misconduct broke on Wednesday, his office issued this statement: Congressman Gaetz pursues justice, he doesnt obstruct it."

Gaetz may live to regret those comments. If he is ultimately indicted, a federal prosecutor may read that statement to a jury in closing argument and remind them that obstruction of justice is not, as some of the former presidents allies suggested, an insignificant process crime (whatever that means).

Juries understand, and so do we, that obstruction of justice is significant. Its about whether our system can deliver justice.

The crime of obstruction of justice is committed when one person intimidates, threatens or corruptly persuades a witness, intending to influence, delay, or prevent their testimony in connection with an official proceeding. The statute sweeps broadly to include a wide variety of conduct intended to prevent investigators from getting to the truth about the commission of a crime. At its core are concerns about criminals who try to tamper with witnesses to conceal the facts. This is the heartland of the conduct Congress intended to prohibit.

Prosecutors, following Congresss lead, take obstruction seriously because it threatens the integrity of our criminal justice system and cuts at the heart of justice. Obstruction cannot be tolerated or ignored. And, as a practical matter, people tend to obstruct when they have something to hide. An obstruction charge can underscore a defendants knowledge that he violated the law and provide additional proof of the underlying charges.

The truth about Gaetz will come out in the course of the federal investigation that is reportedly ongoing. We dont know the details of the conversation he allegedly had when an ex-girlfriend conferenced him in on a phone call with a key witness in the investigation, but the ex-girlfriend is reportedly seeking an immunity deal in exchange for her cooperation because she herself fears obstruction charges. The DOJ has also not charged Gaetz with any crimes at this point (and Gaetz has denied all wrongdoing). However, if prosecutors develop sufficient evidence to sustain charges against him, including a charge of obstruction of justice, he should anticipate that he will be indicted.

Beyond Gaetzs individual alleged crimes, which include the trafficking of a minor and possibly extend to public corruption, we are waiting to see whether the allegations of obstruction prove true and whether they signal a broader trend among former President Donald Trumps self-styled political successors.

Trump unabashedly criticized judges he disagreed with and publicly encouraged his attorneys general to prosecute his enemies and protect his friends. In this, his conduct was unique among our political leaders. His envisioned a criminal justice system he could manipulate for his personal benefit.

Unlike President Richard Nixon, who turned over his tapes when a court told him to and President Bill Clinton, who submitted to prosecutors questioning, Trump consistently held himself above the law. He declined to submit to an in-person interview in connection with the Mueller investigation and withheld witnesses and evidence. Mueller, in his report submitted to the attorney general, laid out ten potential allegations of obstruction against the former president. He stopped short of accusing him of committing a crime but also refused to exonerate him. So far, Trump has escaped legal consequences for his contempt but we should be concerned if his allies (Gaetz, for instance) try to adopt his approach.

Our system of justice is fragile at the moment, stretched thin because it only works if people believe in it. Trumps White House tenure diminished Americans confidence in our institutions. If his utter disregard for the law becomes the new norm for political figures, we are at great risk.

It doesnt take a career at the Justice Department to understand why obstruction of justice is a serious crime. In authoritarian systems and banana republics, powerful people who set themselves above the law obstruct justice to avoid its consequences. If select people can prevent investigations into their misconduct, our entire criminal justice system would crumble. Thats why a person can be prosecuted for obstruction of justice, even if their attempt fails or if prosecutors are unable to prove the underlying crime a defendant is accused of trying to conceal.

We care about accountability for people who try to thwart justice, whether they are the least or the most successful at it. Congress, too, has made it clear that obstruction of justice is a serious crime, imposing penalties of up to 20 years in cases of witness interference. As former special counsel Bob Mueller once said, obstruction "strikes at the core of the governments effort to find the truth and hold wrongdoers accountable. And thats why its an extraordinarily serious charge, particularly against a sitting member of Congress.

Gaetz is an avowed disciple of Donald Trump. He told a crowd at the Villages, a Florida retirement community, last month, that the Republican party is Donald Trump's party, and I'm a Donald Trump Republican." While others in public life might have resigned over allegations of sexual misconduct even conduct that doesnt rise to the level of a crime, like Al Franken who resigned from the Senate over misconduct allegations or Katie Hill who resigned from the House after acknowledging that her affair with a staffer was inappropriate Gaetz has doubled down, saying he did nothing wrong.

We care about accountability for people who try to thwart justice, whether they are the least or the most successful at it.

In the statement his spokesman released, he criticized, presumably DOJ prosecutors, for not making a single on-record accusation of misconduct. (Of course, those prosecutors wouldnt make public accusations before an indictment is returned.) Its legitimate to defend oneself against criminal charges, but entirely out of bounds to, as the statute says, corruptly persuade a witness to withhold the truth from investigators, hoping to derail an investigation.

If investigators do prove that Gaetz tried to prevent a witness from testifying against him or alter their testimony, he should be pursued with the full force of the law. This must happen so that justice is done in this specific case. But on a much broader level, this case is a test of a criminal justice system dramatically undermined by our last president. Interfering with justice cannot become the new norm. And we cannot tolerate any more efforts by our politicians to hold themselves above the law.

Joyce White Vance is an MSNBC columnist andNBC News and MSNBC legal analyst. She is a law professor at the University of Alabama School of Law and a former U.S. attorney in the Northern District of Alabama.

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Matt Gaetz, Donald Trump and why obstruction of justice matters - MSNBC

Donald Trump Jr.Don TrumpDonald Trump Jr. joins Cameo Book claims Trump family members were 'inappropriately' close with Secret Service agents Trump Jr. shares edited video showing father knocking Biden down with golf ball MORE made his debut on Cameo this week, where he will be selling personalized video messages to fans, starting at just over $500.

Trump's account is set up to deliver video messages for $525 if fans want to receive them in two to seven days. For quicker messages, fans can opt to get a video delivered in less than 24 hours, which will cost them $787, according to the Independent.

Fans of former President TrumpDonald TrumpTrump touts record, blasts Dems in return to stage Trump demands China pay 'reparations' for role in coronavirus pandemic Trump endorses Rep. Ted Budd for Senate MORE's oldest son can also message him directly for $19.99.

Dont worry about it if your wifes mad at you for saying that election night 2016 was the happiest night of your life ... theres millions of people just like you, you can tell her I said that, Trump Jr.said in a videoto an Australian supporter. Thanks for helping us out and support us in going after the liberals and the crazies on CNN.

Trump Jr. says in his account bio that a portion of the proceeds he receives will go to charity.

"Father, Patriot, Outdoorsman, Businessman, Political Commentator and #1 NYT Bestselling author. A portion of proceeds will be donated to Shadow Warriors Project," his bio reads.

Trump Jr.'s latest venture comes after he recently complained about the "millions" he has sustained in legal bills due to the multiple ongoing criminal probes into the Trump Organization.

In a recent appearance on "Tucker Carlson Tonight," Trump Jr. slammedNew York Attorney General Letitia James forher investigation, which recently announced it is working in coordination with a separate probe from the Manhattan District Attorney's Office.

I think its political persecution, and I know that because she literally campaigned on it. She was going to investigate the crimes. The problem is it wasnt as though she was a part of this office. She had no idea but, in New York, its OK to try to persecute your political enemies, to try to target them, to try to hurt them and theyve been doing that for over five years, Trump said on Fox News.

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Donald Trump Jr. joins Cameo | TheHill - The Hill

Which is to say that Trump is such a skinflint that hed rather risk McGahn telling Congress that, yes, the president personally directed him to commit obstruction of justiceto fire Robert Mueller and then to create a fake paper trail to suggest that Trump never asked him to do thatthan have to shell out his own money to try to stop it!

So thats one legal wall Trump has run into. And yes, it matters. If the facts stated in the Mueller Report are correct, and McGahn fesses up to them, it may not make any difference to the January 6 crowd, but we will have a presidents legal counsel on the record saying that the president obstructed justice. Thats a big deal.

The second and more prominent wall, of course, was the Supreme Court, which needed about three seconds to decide that Trumps accountants did indeed have to turn over his tax returns to Manhattan District Attorney Cyrus Vance.

The courts original ruling was delivered last July, at which time even Trump appointees Neil Gorsuch and Brett Kavanaugh joined a seven-justice majority concurring with Chief Justice John Robertss ruling that no citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding (Clarence Thomas and Samuel Alito dissented). In February, the court denied Trumps emergency request to block a subpoena for the returns, ending the matter. This time, no dissents were publicly noted.

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Don McGahn's Testimony Could Finally Break Donald Trump's Ability to Evade the Law - The New Republic