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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