The Donald’s Non-Immunity

As multiple outlets have reported recently, the so called President now claims immunity to a suit by persons who suffered assault at one of his rallies and allege that the Donald himself is partially liable because he incited the people who assaulted them with his statements from the podium.

He does a good job at finding lawyers who will make outlandish legal claims on his behalf. As we have seen, Justice Department lawyers claimed that his Muslim ban was immune to judicial review, an assertion that both trial and appeals court judges have now rejected. But the Justice Department operates at the intersection of policy and law, and has no choice but to follow the President’s policy choices about how to pursue legal arguments and what legal arguments to present. One assumes someone else fed this ridiculous idea to the Donald, since he exhibits zero understanding of law and legal issues, asserting that a judge with Mexican parents had a conflict of interest in presiding over another trial involving the Donald even though the claim was preposterous.

One suspects that the reason acting Attorney General Sally Yates refused to defend the Muslim ban was because she knew the so called President expected lawyers under her supervision to make the ridiculous unreviewability claim in open court and did not want to subject them to that embarrassment. Not appreciating how ridiculous the claim was, the Donald fired her for acting on principle, a concept he does not understand.

In the case regarding the assaults at his rally, his private lawyers are defending him. Even the Donald, who has gone out of his way to use the presidency to enrich himself, cannot use the Department of Justice to defend himself against a law suit that makes claims about his conduct before he was in office.

It is true that lawyers tend to throw anything they can think of at a case to see what sticks. Still, claiming that the President is immune to suit for his conduct before he took office is a tough sell. At a minimum, it flies in the face of the Supreme Court’s decision in Clinton v. Jones, 530 U.S. 681 (1997), the case that Paula Jones filed against Bill Clinton while he was President, alleging sexual harassment and retaliation against her while she was a state employee in Arkansas and he was governor of that state. Clinton asked the trial court to postpone the case until after he left office. The Supreme Court found, unanimously, that nothing in the Constitution required a federal judge to postpone a suit against the President for actions he took before assuming the office, and allowed the suit to proceed.

Despite the obvious factual differences between the two cases, in terms of the legal question of whether the President is susceptible to suit while he is in office, the two are essentially identical.

No, the so called President is not immune to suits involving his conduct before he took office.

Cross posted on The Constitution Doctor.

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