Do lawsuits against Trump clear higher standard required to make it to trial?
In 1982, the U.S. Supreme Court said a government whistleblower couldn’t sue President Richard Nixon for allegedly getting him fired, because Nixon’s acts were official and within the “outer perimeter” of his authority.
That is the standard — broad, but not limitless — that courts will use in deciding whether a congressman, or anyone else, can sue former President Donald Trump for his role in the deadly mob attack on the U.S. Capitol.
In a lawsuit filed Feb. 16 in a Washington, D.C., federal court, the NAACP, on behalf of Rep. Bennie Thompson, DMiss., accused Trump of conspiring with the farright groups Proud Boys and Oath Keepers, and attorney Rudy Giuliani, to “incite an assembled crowd to march upon the Capitol” on Jan. 6 and try to prevent Congress from recording the electoral votes that ended Trump’s presidency.
By disrupting the vote count and promoting violence, Trump “acted beyond the outer perimeter of his official duties and therefore is susceptible to suit in his personal capacity,” the suit declared.
Thompson, 72, chairman of the House Homeland Security Committee, said in the suit that he feared for his life while hiding from the rioters. He seeks damages for emotional distress, as well as punitive damages.
But the question the courts must first address is whether Trump was exercising his authority as president, which would make him immune from civil suits, or was acting as an individual and a disgruntled candidate.
“We don’t want government officials to worry unduly that choices they make in their jobs would lead them to be sued for damages,” said David Levine, a law professor at UC Hastings in San Francisco. “We don’t know how involved Trump was in planning, in encouragement to get people to come. (Thompson) will have to tie him into an actual conspiracy, a meeting of the minds” to avoid dismissal of the suit.
“We expect his lawyers to argue that the president’s duties to enforce the law include a duty to protect the integrity of elections,” said David Sklansky, a Stanford law professor. “But egging on a mob to march to the Capitol doesn’t sound like the exercise of presidential duty.”
So far, Trump’s response to
the suit has been to deny any responsibility for the riot.
“President Trump did not plan, produce or organize the Jan. 6 rally on the Ellipse” and “did not incite or conspire to incite any violence at the Capitol,” his spokesman Jason Miller said.
Such factual disputes are usually matters for a jury to resolve once a case goes to trial. But in this case, legal commentators said, Thompson may need evidence of Trump’s
involvement with the organizers or participants in the riot to take his case to trial.
One veteran attorney with that view is Roberta Kaplan, whose past cases included the 2013 Supreme Court ruling making samesex married couples eligible for federal benefits. Kaplan is currently suing Trump for defamation on behalf of E. Jean Carroll, an advice columnist whom Trump called a selfserving liar in 2019 after she accused
him of raping her in the mid1990s.
Asked about Thompson’s suit, Kaplan said he appeared to have a potentially legitimate case but his lawyers faced a “real challenge” to find evidence of a preriot conspiracy “since Trump will claim that all his administration’s communications that day are subject to executive privilege.”
Sklansky said the president’s contacts with other government officials may be privileged, but documents involving the Proud Boys and other rioters may not be. Along the same lines, said UC Hastings’ Levine, there is some evidence that Trump himself, before his speech, had authorized rallygoers to march from the White House Ellipse to the Capitol, beyond the bounds of their original permit.
Levine also noted that a judge in Carroll’s case had found Trump’s alleged defamation of his accuser to be beyond the “outer perimeter” of his official authority, the standard set in the 1982 Nixon case.
That case involved a suit by Ernest Fitzgerald, an Air Force employee who was removed from his job, allegedly by Nixon, after testifying to Congress in 1969 about aircraft cost overruns. In a 54 ruling dismissing Fitzgerald’s suit against the former president, Justice Lewis Powell said that, because of the “special nature” of the chief executive’s office and duties, the court must grant “absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”
Fifteen years later, however, the court unanimously allowed former Arkansas state employee Paula Jones to sue President Bill Clinton for allegedly harassing and defaming her while he was governor, a suit that courts later found without merit. Stephen Vladeck, a University of Texas law professor, said the court allowed the suit to proceed not only because Clinton was not yet president, but also because it was based on conduct beyond the scope of his official duties.
Levine said the Supreme Court’s standard “gives presidents lots of wiggle room, but it’s not absolute authority.”
A related question is whether Trump’s words — including a December tweet promising the events “will be wild,” and his calls to the crowd to march to the Capitol and “fight like hell” — were protected by the First Amendment guarantee of free speech.
The Supreme Court ruled in 1969 that speech advocating violence can be punished only if it was aimed at inciting “imminent lawless action” that it was likely to produce. That is also the test courts would use if a future prosecutor filed criminal charges against Trump or Giuliani, who while standing next to the president called for “trial by combat.”
Under that standard, a court may find that Trump “skirted the very edge of incitement without crossing the constitutional line,” Noah Feldman, a Harvard law professor, said in a Bloomberg Opinion column.
The first decision on whether the case can continue will be by U.S. District Judge Amit Mehta, assigned by random draw. In an earlier case, Mehta ruled in 2019 that Congress was entitled to see financial records held by Trump’s accounting firm, Mazars, that the president wanted to withhold.
A federal appeals court agreed, but the Supreme Court set those rulings aside in July and said Congress must first explain the documents’ connection to proper legislative goals, like passing laws or investigating wrongdoing, and lower courts must weigh those goals against “the unique position of the president.” The high court will most likely get another look at the scope of presidential authority if Mehta allows Thompson’s suit to proceed.