Jonathan Turley How Louisville could decide Trump immunity
The Trump administration has presented a series of difficult ethical and constitutional questions, from nepotism to emoluments. The most significant legal issue could be determined in Louisville, where President Trump is being sued over his alleged role in an assault on protesters.
Three protesters allege they were assaulted at a March 2016 campaign rally, where Trump told his supporters, “Get ’ em out of here!” They are seeking damages from not just the two Trump supporters who allegedly manhandled them but also Trump himself as instigating the assault.
Trump’s lawyers are arguing that even though the alleged injury occurred before he was president, no citizen may sue the president in state court.
Only four presidents have faced civil lawsuits as individuals:
Teddy Roosevelt was sued as head of the New York City Police Department by officer John Hurley, who challenged his dismissal. This action was later dismissed without an opinion.
Harry Truman, while still a senator from Missouri, was sued by attorney Roy DeVault, a resident in an insane asylum. Again, it was dismissed.
John Kennedy was sued over a car accident during his 1960 presidential campaign. While his lawyers tried to rely on his presidential office to dismiss the case, the court rejected those claims. The case was then settled.
Bill Clinton was sued by Paula Jones over his conduct while he was Arkansas governor, claiming sexual harassment at a conference at a hotel. Clinton sought to delay the lawsuit until after his term. In a unanimous decision, the Supreme Court ruled that a president has no immunity from civil litigation over conduct before taking office.
Trump’s defense says: “Mr. Trump is immune from proceedings pursuant to Clinton v. Jones.” While Clinton v. Jones involved a federal rather than a state court, citing it for presidential immunity is like citing Brown v. Board of
Education for school segregation. What is most troubling in this case is that the primary defense is factual, not constitutional. While admitting that Trump yelled, “Get them out of here,” the court has been told that “the Trump defendants deny Mr. Trump’s statement was directed at the crowd.”
Though Trump may claim he was speaking to the security staff, counsel for defendant Alvin Bamberger, a Trump supporter, insists that he acted “in response to — and inspired by — Trump and/ or the Trump campaign’s urging to remove the protesters.”
With dozens of such cases following Trump, the concern is that tactical rather than constitutional calculations will determine new tests for presidential privileges and immunities. This is not how presidential precedent should be made.
If a case threatens presidential powers or privileges, the White House counsel or the Justice Department can intervene to protect the office. Otherwise, Trump and counsel should keep the presidency out of it.