There’s no such thing as ‘absolute immunity’ for former presidents

Last Monday, Donald J. Trump’s lawyers asked a federal court to dismiss three civil lawsuits against the former president brought by California Democrat Rep. Eric Swalwell, a group of other House Democrats and Capitol police officers

Each suit seeks monetary damages for Trump’s role in fomenting the armed invasion of the Capitol on Jan. 6, 2021, including the barrage of falsehoods that Trump churned out about a “stolen election.” The complaints also point to Trump’s call to “fight like hell” at the Save America rally that day.    

If the plaintiffs win these lawsuits, Trump is at risk of being ordered to pay millions of dollars to the individual victims of the Jan. 6 rampage. Large punitive damage awards can achieve at least partial justice, as they did last November when the organizers of the 2017 Unite the Right rally in Charlottesville, Va., were ordered to pay $26 million to their victims.    

During a five-hour oral argument, U.S. District Court Judge Amit Mehta asked whether there was “anything the president could say” that would render him or her accountable in a civil suit. Trump’s attorneys could not think of a single hypothetical exception.  

Mehta should rule against Trump on each of the core legal claims.  

The “absolute immunity” argument advances Trump’s long-held position that presidents are above the law. His attorneys made similar (and equally unsupported) claims in both of his post-impeachment Senate trials. In the second trial following what we now understand to be an attempted coup, Trump’s lawyers asserted without any legal precedent that presidents have what they termed “enhanced free speech rights.”  

In 2020, Alan Dershowitz of Harvard Law School, representing Trump at the first Senate trial, stunned most constitutional law experts when he said, “If a president does something which he believes will get him elected — in the public interest — that cannot be the kind of quid pro quo that results in impeachment.”   

Trump’s lawyers got it wrong then, and their arguments last Monday were wrong too. Here’s why.  

First, having little to work with, Trump’s lawyers resorted to yet another incantation of “executive privilege.” But executive privilege exists so that presidents can freely exchange ideas and policy considerations with close advisors. It does not apply to what a president says in public. All evidentiary privileges evaporate after the statements are shared outside the confidential relationship.  

The second argument may turn on whether Trump’s exhortations to the crowd  — including “fight like hell” — were within the scope of the president’s official duties and entitled to immunity or something else altogether. That something else might be characterized as campaign speech (as Trump’s attorneys argued) or speech that the First Amendment doesn’t protect, like incitement or expression that furthers a crime (e.g. conspiracy, sedition, or insurrection). Presidents who are on duty 24/7 may speak as individuals rather than as chief executive officers. The line is far from clear.   

Third, the proposition that the First Amendment contemplates a president claiming “enhanced” free speech rights is preposterous on its face. The speech clause limits the government’s ability to censor or punish expression — it does not generally distinguish based on status. Even if such a distinction were contemplated, the former president’s baseless claim is topsy-turvy. The speech clause exists in large part to protect dissidents, the disempowered and those who speak truth to power. The powerful need no special protection.   

Even when Trump’s legal position is barely tenable, his goal, as we see again and again, is to block information from emerging through documents and depositions, and to stall any day of reckoning for as long as possible.   

The fatal flaws in Trump’s legal arguments in these three civil cases should convince Mehta to render a decision that would allow the lawsuits to proceed. We can hope that he rules quickly.  

Catherine J. Ross is Lyle T. Alverson professor of Law at George Washington University Law School and the author of the recently released “A Right to Lie? Presidents, Other Liars, and the First Amendment.” Twitter: @catherinejross_