It’s been a nice ride, but now it’s time we put unqualified presidential tort immunity to bed. Shielding presidents from liability was a great idea back when presidents conducted themselves as dignified public servants; now that our commander-in-chief is an infantile blowhard who’s hell-bent on ridiculing people just for fun, we need to make some adjustments.
I’m specifically referencing Donald Trump’s comments at Tuesday’s MAGA-fest in Pennsylvania. During the rally, Trump detailed his version of former FBI attorney Lisa Page’s relationship with former FBI Special Agent Peter Strzok. Here’s what Trump said:
This poor guy. Did I hear he needed a restraining order after this whole thing to keep him away from Lisa? That’s what I heard. I don’t know if it’s true. The fake news will never report it. But it could be true. No, that’s what I heard. I don’t know. I mean, who could believe a thing like that. No, I heard that Peter Strzok needed a restraining order to keep him away from his once lover. Ahh, Lisa I hope you miss him. Lisa, he’ll never be the same.
And here’s how Lisa Page responded:
This is a lie. Nothing like this ever happened.
I wish we had a president who knew how to act like one. SAD!https://t.co/7YQaQRxWzu
— Lisa Page (@NatSecLisa) December 11, 2019
Strzok and Page have been favorite targets of Trump’s since controversial messages between them came to light after the 2016 presidential election. Now, though, at least some people are suggesting that Trump has gone too far in his public comments about them:
It’s pretty clear that @petestrzok has an extremely strong slander case against @realDonaldTrump for the latter’s false claim last night that @NatSecLisa obtained a restraining order against Strzok.
— George Conway (@gtconway3d) December 11, 2019
Discussions of Trump and defamation tend to go together like red hats and cheap beer – even when there’s no sound legal basis for imagined lawsuits. This time, though, we may not only have a slam-dunk defamation claim – but also a rather compelling vehicle by which to upend outdated and over-broad immunity law.
First, let’s talk slander. Trump’s repeated comments that he “heard” Page had sought a restraining order against Strzok would almost certainly be deemed a “statement of fact.” While Trump may have softened his language to avoid making a bolder accusation, the context is clear, and the statements were presented as fact. Those allegations are provably false. Not only has Lisa Page (who’d be the most direct source of truth or falsity) stated, “This is a lie. Nothing like this ever happened,” but as George Conway helpfully pointed out, requests for restraining orders leave paper trails.
First of all, Trump’s statement was false. You can take @NatSecLisa’s word for it (below), but obviously if it were true we would have seen the public record of it long ago. https://t.co/SJXSk70cIX
— George Conway (@gtconway3d) December 11, 2019
Further, defaming someone by falsely stating they’ve committed a crime (such as the kind of behavior that would warrant a restraining order) is deemed “defamation per se.” With those cases, the usual burden of proving damages is lifted. Even if we throw in an “actual malice” requirement (assuming Strzok would be deemed a public figure), the president’s remarks would easily clear that hurdle. Given the ease of checking the veracity of his claims, Trump’s decision to make false statements before a large crowd would certainly constitute actual malice. In fact, Trump himself even admitted, “I don’t know if it’s true,” so I think we’re good on any malice requirement.
The above analysis might be irrelevant if immunity under Nixon v. Fitzgerald were applied. That case, decided in 1982, held that sitting presidents are absolutely immune from civil lawsuits stemming from their official acts. Since then, the precedent hasn’t really been tested. The issue of presidential immunity was raised during Clinton v. Jones — but that stemmed from actions before Bill Clinton took office. Since Nixon, we’ve operated under the blanket rule that presidents cannot be civilly sued for any official actions they take as president.
Here’s the thing, though: Nixon v. Fitzgerald‘s rule should not apply. Yapping about Page and Strzok during a campaign rally is not an official act. As Conway pointed out in his Twitter primer on the subject, exactly zero about the circumstances adds up to “official government business.”
Fourth, under Clinton v. Jones, presidential immunity can’t apply because Trump’s statement did not come within his presidential duties: (a) this was a *campaign* rally; and (b) his assault on Strzok and Page’s *personal* relationship does not involve governmental business.
— George Conway (@gtconway3d) December 11, 2019
Accordingly, this is a fact pattern practically tailor-made for a court to cut back a bit on absolute immunity for presidents.
.@steve_vladeck and I have been talking and writing for a while now about the limits of Nixon v. Fitzgerald. This would be a great test case for the question. https://t.co/yGj9y5HAXh
— Benjamin Wittes (@benjaminwittes) December 11, 2019
Nixon v. Fitzgerald was a 5-4 decision, in which the court specifically mentioned that the president is not immune from criminal charges stemming from his acts while in office. In other words, SCOTUS was firm on the idea that there were some limits to presidential immunity. In the Nixon case, A. Ernest Fitzgerald sued government officials, alleging that he was fired as a contractor with the Air Force as retaliation for damaging testimony he’d given before Congress. President Richard Nixon was one of several defendants, and he claimed that he was immune from Fitzgerald’s civil lawsuit. The lower courts ruled against Nixon, but the Supreme Court reversed, keeping absolute civil immunity intact for presidents.
The underlying facts of Nixon v. Fitzgerald were dramatically different from a hypothetical Strzok v. Trump lawsuit for defamation. Moreover, back 1982, SCOTUS based its decision to uphold immunity in part on its confidence that Congress and the press would exert such imposing scrutiny on a sitting president that he would have a strong incentive to avoid misconduct. The immunity rule was created to rid the executive branch of the hassle of fending off lawsuits every time someone was unhappy with government action; it was not meant to shield a chief executive who consistently uses his platform to victimize individual Americans. Many a patriot has declared, “no one is above the law — not even a president,” but so long as Nixon v. Fitzgerald continues to deliver unchecked immunity, every president will have the power to operate outside the bounds of American law.
[image via CSPAN2 screengrab]
This is an opinion piece. The views expressed in this article are those of just the author.
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