Shortly after he voted to acquit Donald Trump at his second impeachment trial, Senate Minority Leader Mitch McConnell gave a speech that made clear his belief that the former president had not escaped ultimate responsibility for fomenting the riot at the Capitol on Jan. 6.
“Donald Trump is still liable for everything he did while he was in office, as an ordinary citizen,” McConnell told his Senate colleagues. “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.”
McConnell’s confident assertion might be true in theory, but that level of post-White House accountability has never occurred in fact.
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 Trump’s former attorney, Rudy Giuliani. The lawsuit, which alleges negligence and intentional infliction of emotional distress; aiding and abetting common-law assault; disorderly conduct and 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, Trump’s 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, Trump’s lawyers argue.
But Swalwell argues that Trump’s behavior that day—urging the crowd to “fight like hell” to stop the certification of the Electoral College vote by Congress—was 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 world’s 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 president’s] 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 immunity’s justifying purposes” and that, for presidents, it extends to acts within the “outer perimeter” of his official responsibilities.
It’s 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 Fitzgerald’s 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 President’s constitutional and statutory authority . . . to prescribe reorganizations and reductions in force.”
But is it within a president’s “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 Nixon’s 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 Trump’s second impeachment for his role in 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 President’s traditional concern for his historical stature.” These guardrails, too, were shattered by former President 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 Clinton’s request to delay Paula Jones’ sexual harassment lawsuit until his term was over. In Jones, the court rejected President Clinton’s 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, Trump’s lawyers cite Fitzgerald to claim absolute immunity for Trump’s remarks on Jan. 6 but argue that “[e]ven when a plaintiff alleges a president’s 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” personal—such as, say, the writing of a private letter to a family member about an issue involving the family. (Emphasis in original.) This “purely” test is not the law, at least to date. Moreover, it flies in the face of the
Nixon Supreme Court’s 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 weren’t 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 persuade the court that his Jan. 6 speech was an official act.)
The lower court’s ruling on this issue could easily go one of two ways. Either the judge decides that inciting an insurrection—which is expressly mentioned in the Fourteenth Amendment as a bar to holding federal or state office—is 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, it’s safe to predict that the outcome will not be unanimous because the law is vague, and the court is ideologically divided—by 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 it’s also safe to predict that, if the court were to rule for Donald 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.