I have long-criticized President Donald Trump for his tweets suggestions that MSNBC Joe Scarborough murdered a former aide when he was a Republican congressman two decades ago and suggested on Twitter that the two had an “affair.” The tweets are cruel for the family of Lori Klausutis but make scurrilous unproven allegations against Scarborough. Scarborough is saying that he may now sue Trump for defamation. The problem remains that Scarborough is a public figure and, as such, is subject to a high burden for defamation. What is most striking however is what Scarborough said his lawyers told him about suing earlier. The “best lawyer in New York” and the “best lawyer in New York” told him that he could not sue a sitting president. That is clearly untrue.
Despite many of us roundly condemning his use of this tragedy, the president returned repeatedly to the subject. He called again for an investigation in “Psycho Joe Scarborough.” He asked “So a young marathon runner just happened to faint in his office, hit her head on his desk, & die? I would think there is a lot more to this story than that? An affair? What about the so-called investigator?” He also questioned the findings of the autopsy and suggested that Scarborough left Congress mysteriously after the death: “A blow to her head? Body found under his desk? Left Congress suddenly? Big topic of discussion in Florida…and, he’s a Nut Job (with bad ratings). Keep digging, use forensic geniuses!”
The problem is that this can be defended as an opinion and thus protected under constitutional and tort cases. Moreover, as a public figure, Scarborough is subject to the standard under New York Times v. Sullivan, requiring a showing of actual malice — defined as knowing falsity or a reckless disregard that the story was untrue. It is a standard that was designed to be difficult to satisfy. However, that obvious problem does not appear to be the problem raised by Scarborough’s lawyers.
Scarborough said:
“I called lawyers after about the tenth time he accused me of murder … I get the best lawyer in New York, the best lawyer in DC who was supposed to be the best for handling these sort of defamation cases and they said, well you can’t sue the president because he’s the president and he’s got immunity, which I disagree with.”
There was a good reason to disagree. It is not true that “you can’t sue the president because he’s the president and he’s got immunity.” There is no such immunity from civil lawsuits. Moreover, this poor advice could have a serious consequence for the client. Defamation has a short statute of limitations of one or two years. You can lose the right to sue. If you sue, you toll the statute of limitations even if a court puts the case on a delayed schedule.
If this is untrue, Scarborough is either defaming his lawyers or he needs somene other than “the best.”
There is an ongoing debate over whether a sitting president can be criminally indicted in office. I have long argued that a sitting president can be indicted, but some (including the Justice Department) disagree. Nevertheless, a president can clearly be sued civilly. Just ask Bill Clinton. In Clinton v. Jones, a unanimous court rejected such a claim of immunity. Justice John Paul Stevens rejected such arguments and held that
“[t]his reasoning provides no support for an immunity for unofficial conduct. As we explained in Fitzgerald, “the sphere of protected action must be related closely to the immunity’s justifying purposes.” Id., at 755. Because of the President’s broad responsibilities, we recognized in that case an immunity from damages claims arising out of official acts extending to the “outer perimeter of his authority.” Id., at 757. But we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.”
Moreover, Trump was sued in dozens of cases. Strangely, Scarborough covered those lawsuits on his show. Didn’t he think it was odd that he could not sue but a lot of people seemed to be able to do so? There was no immunity in these cases so why would Scarborough believe any lawyer — even the “best” lawyer — in saying that he does?
Of course, the “best” lawyers in New York and Washington may be like the world’s best coffee:
