THE CONTINGENCY PRESIDENCY: PRESIDENTIAL IMMUNITY INVOKED IN KENTUCKY CASE BY TRUMP’S LOCAL COUNSEL

Below is my column in USA Today on the concern over arguments being advanced in the dozens of personal cases pending against President Donald Trump across the country.  As someone who acquired his wealth in the New York real estate market, Trump has been a frequent litigant and is someone who is not deterred by threats of litigation.  Indeed, in that market, litigation is treated as an extension of the business and often used in leverage or delay tactics.  As President, Trump cannot maintain the same approach to the courts if he has any concern over the position of his office.  Much of the privileges surrounding the presidency are not expressly stated in the Constitution. They are, therefore, vulnerable to the curtailment of negative rulings.  For that reason, most presidents have avoided court tests and invoke privileges and immunities cautiously.  Yet, no president has ever had this massive number of private lawsuits pending upon taking office.  With various private lawyers asserting defenses, it raises the danger of unintended and uncoordinated presidential claims being made by largely unknown lawyers.  It is like creating constitutional law on contingency or hourly contacts. Private counsel seeks to win these civil cases and are likely less concerned (and certainly less equipped) in dealing with the long-term implications of privilege or immunity arguments.  Trump needs to carefully define the scope of advocacy for his local counsel to avoid the first contingency presidency.

Here is the column.

Since taking office, the Trump administration has presented a series of difficult ethical and constitutional questions, from nepotism to emoluments to product endorsements. The most significant legal issue may be determined in a small courtroom in Louisville, where President Trump is being sued over his alleged role in an assault on protesters. Trump is arguing that his office gives him immunity from such tort actions during his presidency. He is wrong, but (regardless of the outcome) the case could create new law for future presidents.

The case was brought by three protesters who allege they were assaulted at a March 2016 campaign rally in Louisville. After they were roughly tossed from the rally, 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 have raised a series of defenses from free speech to presidential immunity. The person bringing these potentially precedent-setting arguments is neither White House counsel Don McGahn nor Attorney General Jeff Sessions. Rather, it is Louisville lawyer R. Kent Westberry representing “Donald J. Trump for President, Inc., and Donald J. Trump, Individually.” He is a partner at Landrum & Shouse, LLP, which bills itself as “the fourth largest law firm in Kentucky.” As good as the firm may be, should the outer limits of executive authority really be established by local counsel in a Kentucky tort case?

Adding to this concern is the fact that Trump is wrong on the constitutional claim. His lawyers are arguing that, despite the fact the alleged injury occurred before he was president and has nothing to do with the exercise of executive power, no citizen may sue the president in state court while he holds his office. It would be a sweeping and dangerous precedent if it were accepted. Fortunately, it is likely to fail.

There have only been four sitting presidents who have faced civil lawsuits against them as individuals in history. Trump has already shattered that record by dragging a long chain of lawsuits (as many as 75) behind him to the Oval Office.

Teddy Roosevelt was sued over his actions as head of the New York City Police Department by officer John Hurley, who challenged his dismissal. This action was based in Roosevelt’s official actions in a prior office and was later dismissed without an opinion.

A closer, analogous case involved John Kennedy, who was sued over a car accident during his 1960 presidential campaign and sued while he was still a candidate. While Kennedy’s lawyers tried to rely on his presidential office to dismiss the case, the court rejected those claims. The case was then settled.

Of course, the final example is the most relevant: Bill Clinton. Paula Jones sued Clinton for his conduct while he was Arkansas governor, claiming sexual harassment at a conference being held at a Little Rock hotel. Notably, Clinton sought to delay the lawsuit until after his term as president, but that claim was rejected. In a unanimous decision, the Supreme Court ruled in 1997 that a sitting president has no immunity from civil litigation for alleged conduct before taking office. Clinton also relied on a private law firm, and his loss caused lasting damage for his successors.

Despite the obvious conflict with Trump’s position, he raised the following affirmative defense in his answer: “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.

The choice for any presidential litigant is between maximizing defenses on personal liability vs. minimizing threats to his official office. A president can instruct counsel not to claim presidential immunities while expressly reserving such questions for the future.

What is most troubling is that such a position would not materially harm Trump in this case. The primary defense is factual, not constitutional. While admitting that he 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 legitimately claim that he was speaking to the security staff rather than his supporters, 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 news tests for presidential privileges and immunities. Whether it is an assault case or some slip-and-fall, this is not how presidential precedent should be made.

If a case threatens presidential powers or privileges, the White House counsel or Justice Department can intervene in the case to protect the office.

Otherwise, Trump and counsel should keep the presidency out of it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter @JonathanTurley.

38 thoughts on “THE CONTINGENCY PRESIDENCY: PRESIDENTIAL IMMUNITY INVOKED IN KENTUCKY CASE BY TRUMP’S LOCAL COUNSEL

  1. At times, firmly believe politicians avoid crisis only to create later crisis. In Trump’s case, he is not a professional, politician. Thus, as a practical man, why would he deliberately create a crisis for himself?

  2. Paul,

    Check this out: “April 26th is shaping up to be a busy day.

    As we reported on Friday, that’s when Operation Gotham Shield, an exercise involving FEMA, Homeland Security and a myriad of law enforcement and military agencies and which simulates a nuclear bomb blast over Manhattan, is set to conclude.

    Then, as we learned earlier, April 26 is also when the entire Senate will be briefed by Donald Trump and his four top defense and military officials on the situation in North Korea at the White House, an event which Reuters dubbed as “unusual.”

    April 26 is also when the USS Carl Vinson is expected to finally arrive off the coast of the Korean Penninsula.

    Now, in a statement from the Metropolitan Washington Council of Governments, the regional association reports that “law enforcement officials and other first responders will participate in a full-scale exercise on April 26 designed to prepare for the possibility of a complex coordinated terror attack in the National Capital Region.”

    The statement adds that emergency managers who work together at the Metropolitan Washington Council of Governments (COG) planned the exercise to help protect residents by preparing for an attack involving multiple target locations and teams of perpetrators.

    The exercise will be conducted across a widespread geographical area. According to the release, the regional exercise will be staged at six sites in the District of Columbia, suburban Maryland and Northern Virginia, and will involve hundreds of police, fire, and emergency medical service personnel and volunteer actors.”

    http://www.zerohedge.com/news/2017-04-24/washington-dc-area-hold-massive-drill-preparation-complex-coordinated-terror-attack-

    This does not bode well for anyone.

  3. Great article. I agree that Trump should keep the presidency out of it and defend the case on its merits.

    What I struggle with is that I agree that the President should not be immune from civil lawsuits regarding his actions prior to taking office. However, how would a sitting President be able to participate in the litigation and trial with the demands of the office? These cases can drag on for years and each one can take considerable time. I am unsure of how to deal with the logistics. My other concern is that I want to avoid frivolous litigation being an option for these protestors who want to disrupt the President. They were successful hounding Sara Palin out of office in Alaska with one lawsuit after another, with such trivial accusations as wearing a parka with the maker’s logo at the Iditarod.

    • Pretty sure that anyone who takes as much time during the day to watch Fox News as Trump does has plenty of time to take part in the multitude of lawsuits against him. Hey, it might even slow down his tweeting and/or executive orders!

  4. Well written. What is so sad is that Trump, along with past presidents have not put our nation first. They have all been men without honor.

    I’m not looking for a perfect person to be president but just once, I wish I could see a person of honor put our nation before themselves.

  5. “Despite the obvious conflict with Trump’s position, he raised the following affirmative defense in his answer: ‘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.”

    That’s a hoot. You put a smile on every face in Tennessee.

  6. I sure hope judges put the law over party on this one. Trump doesn’t have immunity! He’s not the king.

  7. Idiot-in-Chief: “So if you see somebody getting ready to throw a tomato, knock the crap out of ’em, would you? Seriously. Okay? Just knock the hell — I promise you, I will pay for the legal fees. I promise. I promise.”

    The Pizza Hut spokesman offered to pay any legal fees for whom, those in the crowd or security? His “seriously” was a nice touch.

  8. The cases in which Trump is involved are primarily mundane tort and contract claims. I do not see the applicability of any immunity theories in such instances.

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