Presidential Immunity Under Attack

A civil liability case over January 6 poses a threat not only to President Trump’s bank account, but to the constitutional theory of the executive.

AP/Jacquelyn Martin.
President Trump on January 6, 2021. AP/Jacquelyn Martin.

It looks like the question of whether President Trump has immunity from civil suits arising from the J6 riot is one to which it would pay the Democrats to take heed. It could seem folly to grant immunity to Mr. Trump, who sent the protesters to the Capitol, but he was acquitted by the Senate of incitement to insurrection. Even the riders of the District of Columbia Circuit, where only one or two horses have a right leg, found it a difficult question. 

Immunity is on the courtroom agenda because of a trio of civil lawsuits brought by Democratic lawmakers and Capitol police officers seeking to hold Mr. Trump to account for damages inflicted on January 6. At the forefront of the legal push are liberal solons like Barbara Lee, Pramila Jayapal, and Veronica Escobar.  The case poses a threat not only to Mr. Trump’s bank account, but to the constitutional theory of the executive.     

This goes back to the fact that the executive branch is different. In the other two branches, power is shared by many people — nine when it comes to the SCOTUS, and 535 when it comes to Congress. In the executive branch, 100 percent of the power goes to the president. From the minute he wakes up to when he wakes up the next morning, he needs to “take care that the laws be faithfully executed.” Without the president, the Republic has no executive.

The Supreme Court grasped this truth in 1982, in Nixon v. Fitzgerald. Rejecting the pleas of a sacked and disgruntled federal employee, the justices noted that the president is different not just in degree, but in kind. The court, noting the president’s “unique position in the constitutional scheme,” hammers home the point, affirming “absolute immunity from damages liability” for actions that fall “within the ‘outer perimeter’ of his official responsibility.”

Did January 6 fall inside this border? A federal district court judge, Amit Mehta, accepts much of the court’s analysis in Fitzgerald, only to veer to a different conclusion because of what he calls facts “without precedent.” For him, presidential immunity is “capacious, though not categorical.” He allows that the “court well understands the gravity of its decision,” but avers that Mr. Trump’s actions were the “essence of civil conspiracy,” and thus naked to litigation.  

It is not only Judge Mehta who would have Mr. Trump shorn of the immunity of his office. In a separate suit brought by the NAACP and Michigan Welfare Rights Organization accusing Mr. Trump of disenfranchisement, Judge Emmet Sulivan contended that the former president’s efforts to press his version of the Electoral Count Act “not constitute executive action,” and thus were not immune from the extraction of “monetary damages.”

 Judge Sullivan, who took senior status in June, was last seen refusing the Department of Justice’s request to drop the case against the former national security adviser, Lieutenant General Michael Flynn, who was convicted of lying to the FBI with regard to a conversation with the Russian ambassador. The trial and tribulations of General Flynn ended only when he was pardoned by Mr. Trump, forcing Judge Sullivan to finally toss the case. 

The question of whether the privileges and immunities of the office — the presidency —will survive intact strikes us as a constitutional canary in the coal mine of the law. That decision now rests with the riders of the District of Columbia circuit, one of whom, Gregory Katsas, fretted during oral arguments that the case was  “tough” and “difficult.” For him, maybe. For the Framers, not so much. For them, a beleaguered president was worse than an immune one. 


The New York Sun

© 2024 The New York Sun Company, LLC. All rights reserved.

Use of this site constitutes acceptance of our Terms of Use and Privacy Policy. The material on this site is protected by copyright law and may not be reproduced, distributed, transmitted, cached or otherwise used.

The New York Sun

Sign in or  Create a free account

or
By continuing you agree to our Privacy Policy and Terms of Use