Why Trump's claims of presidential immunity in Capitol riot lawsuits cannot be allowed to stand

Why Trump’s claims of presidential immunity in Capitol riot lawsuits cannot be allowed to stand


Former President Donald Trump’s lawyers are fond of claiming in court that the presidency afforded him complete immunity in judicial proceedings: They first claimed that immunity in state courts a mere six months into his term of office, in response to a defamation lawsuit filed by former “Apprentice” contestant Summer Zervos (the courts sided with her); they claimed it in challenging the Manhattan district attorney’s subpoena involving the Trump Organization’s taxes (in which the Supreme Court ruled against Trump); and they claimed that Trump should be dismissed as a defendant in a New York federal defamation lawsuit filed by E. Jean Carroll (which a judge denied).

Now one of his lawyers is claiming it in two lawsuits by members of the House of Representatives that seek to hold Trump civilly liable for the Jan. 6 riot at the Capitol.

On Jan. 6, the then-president gave a speech at a rally near the White House coinciding with Congress’ certification of the Electoral College votes. In it, Trump repeated the “big lie” that the election was stolen — it was not — telling those assembled to march to the Capitol to protest the certification (and falsely saying he would be with them on the march). “We fight like hell,” he said. “And if you don’t fight like hell, you’re not going to have a country anymore.”

Trump’s legal team claims Trump’s exhortations, which led to an unprecedented physical attack on one of the co-equal branches of government and our democracy, was part of his official presidential duties.

Many of those listening — and many who had already descended on the Capitol — did fight, attacking Capitol Police, overrunning the Capitol and threatening the vice president and members of Congress.

Five people died in connection with the attack. To date, more than 450 people have been charged with federal crimes for their roles in the Capitol riot. Trump himself was impeached (for a second time) on a charge of fomenting the riot but was (once again) acquitted by Republican senators.

And now, in response to civil lawsuits, Trump’s legal team claims Trump’s exhortations, which led to an unprecedented physical attack on one of the co-equal branches of government and our democracy, was part of his official presidential duties.

Really.

In filings this week to dismiss lawsuits filed in Washington, D.C., federal court by Rep. Eric Swalwell, D-Calif., and Rep. Bennie Thompson, D-Miss., Trump’s lawyer cited the 1982 Supreme Court opinion Nixon v. Fitzgerald as precedent that the former president cannot be held liable in the suits.

Trump’s claim is that anything he did as president is protected by the ban against civil lawsuits announced in Fitzgerald.

Both Swalwell’s and Thompson’s complaints allege — among other theories — that Trump (and others) are liable for damages caused by Capitol rioters under a 1871 federal civil rights law outlawing the use of force, intimidation or threat to prevent Congress from doing its duty to count the electoral votes.

Trump’s lawyer said there are no circumstances under which “a president has been found subject to suit for an action taken during his presidency” and therefore Trump cannot be either. This sweeping claim relies on the ruling in Fitzgerald.

That case involved a federal employee who allegedly was fired from his departmental job at the Air Force with Nixon’s direct approval in retaliation for accurately testifying before Congress about cost overruns on a project.

Former President Donald Trump’s lawyers are fond of claiming in court that the presidency afforded him complete immunity in judicial proceedings.

After a lower court denied Nixon’s claim of absolute immunity from a civil suit, the Supreme Court accepted the case and ruled 5-4 that a president has absolute immunity from civil lawsuits for actions taken within the “outer perimeter” of his duties as president.

In responding to the dissenting justices who accused the Fitzgerald majority of undermining the core principle that no one is above the law, Chief Justice Warren Burger specifically rejected their claim. In his concurring opinion, he wrote “a President, like Members of Congress, judges, prosecutors, or congressional aides — all having absolute immunity — are not immune for acts outside official duties.”

Trump’s lawyer, meanwhile, now contends that Trump was advocating official action well within the outer perimeter of his duties by simply urging Congress and Vice President Mike Pence to reject electors’ votes to certify that Joe Biden had won the presidential election when he said to the crowd on Jan. 6, “We will not let them silence your voices. We’re not going to let it happen, I’m not going to let it happen.”

The problem, of course, is that neither Supreme Court opinion ever imagined a president like Donald Trump.

In essence, Trump’s claim is that anything he did as president is protected by the ban against civil lawsuits announced in Fitzgerald.

But Fitzgerald did not create such a blanket rule.

The Supreme Court actually addressed the scope of presidential absolute immunity after 1982 — in a civil lawsuit brought by Paula Jones against President William Clinton 15 years later. Clinton, too, relied on Fitzgerald to argue that he was immune from a civil suit while in office, even though most of the claims related to alleged sexual misconduct occurring before he was president.

The court held that Fitzgerald granted no immunity for claims based upon “unofficial conduct” of the president. Specifically citing Burger’s concurrence in Fitzgerald, the majority wrote, “We have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.”

If the plaintiffs can prove that Trump’s speech on Jan. 6 did not fall within the “outer perimeter” of the duties of a president, then the judgment of history will be satisfied.

The problem, of course, is that neither Supreme Court opinion ever imagined a president like Donald Trump.

In excusing a president from civil liability for even illegal actions, the court said in Fitzgerald that other deterrents — in addition to impeachment — would guard against presidential misconduct. Those, they believed, included congressional oversight, press scrutiny, a desire for re-election and “a President’s traditional concern for his historical stature.”

Trump’s Jan. 6 diatribe proves that none of those served as a guardrail.

Civil cases like Swalwell’s and Thompson’s, then, serve a critical purpose. If the plaintiffs can prove by a simple preponderance of the evidence that Trump was complicit in the Capitol riot — that his speech on Jan. 6 did not fall within the “outer perimeter” of the duties of a president — then the judgment of history will be satisfied even if Trump never pays any money damages.

On the other hand, if the Fitzgerald precedent does serve to immunize Trump from these cases, then the dissenting justices in Fitzgerald were prescient — and Trump’s lawyers, who argued once in the Second Circuit Court of Appeals that he would be immune from investigation if he shot a man on Fifth Avenue, would have been as well. Unlike every other American, the president will be ever above the law.



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