Donald Trump

Civil Suits Against the President

By Paul Rosenzweig
Sunday, April 2, 2017, 12:45 PM

In the normal course of Lawfare, a civil lawsuit in Kentucky would not seem to implicate national security. But when one of the defendants is the President of the United States, well .... I suppose everything related to him is of potential national security interest. Hence, the need to at least consider the implications of this stunning decision from a Federal district court in Kentucky, refusing to dismiss a lawsuit against President Trump. The suit alleges that protesters at a Trump rally were assaulted and that then-Candidate Trump's repeated exhortation to "get 'em out of here" was a direct and proximate cause of the violence. In other words, the President is accused of inciting violence against his political opponents. Some thoughts:

First, we should not read too much factual conclusion into this decision. It was the denial of a motion to dismiss on the pleadings and in that posture the judge was bound to assume all the alleged facts were true and to draw every reasonable inference in favor of the plaintiffs. It remains to be determined at a later date whether, for example, "get 'em out of here" was actually an exhortation to violence, or perhaps simply a direction to staff to remove disrupting individuals. If I were Trump's attorney I would certainly be making the latter argument. Which interpretation is better founded remains to be seen as facts are further developed.

Second, speaking of factual development, I can see no way in which President Trump avoids a deposition in this matter. We know from Clinton v. Jones that Presidents are not immune from civil discovery during their presidency. And I have to think that Trump's state of mind and intention are fair game for inquiry. And we know, from past experience, that it is often enticing for a President to "gild the lily" in his testimony -- which carries with it, its own risk of accusations of perjury.

Third, context is everything. Though President Trump will argue that his words were not an incitement to violence, that argument may be rebutted by evidence relating to prior bad acts (known as 404(b) evidence). I would expect plaintiffs to contend that prior rallies, and the violence that attended them, were relevant to show that a reasonable person in Trump's position could expect his words to generate a violent response among his supporters at this particular rally. In other words, if Trump started violent acts at an earlier rally in, say, North Carolina, he should expect that his words would incite violence at this rally in Kentucky. Of course, there will be counter arguments -- but the basic fact is that the discovery in this suit will open up an inquiry into all of the various violent acts at the several Trump rallies the preceded the one in question.

Fourth, since Trump will contend that his words were a direction to professional security to remove disrupting protestors, not an incitement to violence, another key witness group will be those professional security actors. We know from press reports that some of these were hired private security. But we also know that some of the security (and thus some of the witnesses) were from the Secret Service. Again, the Clinton investigation from 20 years ago is instructive -- there is no such thing as a "protective function privilege" and that the Secret Service witnesses may be obliged to give testimony.

Fifth, it is remarkable how far we have come. Twenty years ago, the specter of a President subject to a civil suit was a once-in-a-lifetime occurrence worthy of Supreme Court consideration. Today, it seems to be a commonplace. The shift in expectations is remarkable.

Given the potential downside, if I were the President I would try to settle this suit. He won't -- but he should.