Trump’s lawyers contended that Trump was speaking to security and not the crowd, but the federal judge in the case has already ruled that it’s plausible Trump had incited a riot, allowing the lawsuit to move forward.
In Friday’s filing, Trump’s lawyers make several claims in response to the lawsuit, including that Trump had a right to remove protesters from his event, that getting tickets to the rally waived their claims, and that their “claims are barred by their unclean hands,” in addition to claiming immunity.
Experts say that the immunity argument, though, will be tough for the Trump administration to justify — and the reference to the Clinton v. Jones case is particularly puzzling.
Two major Supreme Court cases, one under President Andrew Johnson and one with President Richard Nixon, held that presidents have broad immunity when it comes to their actions in office.
But the court decided unanimously in former President Bill Clinton’s case that he could face a lawsuit for actions he allegedly took prior to becoming President, leading to his famous impeachment. In that case, former Arkansas state employee Paula Jones alleged Clinton sexually harassed her when he was governor of Arkansas.
“Generally speaking, things done before the President is president, in the President’s ordinary capacity, there’s no special immunity from suit,” said University of Chicago Law School professor William Baude, who works on immunity. “(The concept is) about preserving your ability to do your job; it doesn’t apply before you had your job”
Alden Abbott, a legal scholar at the conservative Heritage Foundation, similarly said he couldn’t think of a strong legal argument for immunity in this case, though both men noted that in a long opinion like Clinton v. Jones, it’s possible a “footnote or caveat,” as Baude put it, could offer a new legal argument that contradicts the overall decision.
Abbott noted that it’s not uncommon for lawyers to offer several defenses, in case any of them might stick.
“I think it’s safe to say it’s an uphill climb, but as lawyers normally do, belt and suspenders approach, when in a suit against a public official or any lawsuit for tort, which is basically what this seems to be, you’re going to put down any defense that you think might be successful,” Abbott said.
“Immunity is only one out of many, and I suspect they’re going to put a lot more on the First Amendment and the lack of being able to prove incitement. … So if (immunity) were the only defense it would be an uphill defense, but it’s only one of many responses.”
Bamberger, for his part, has claimed as a defense that he would not have responded to the protesters the way he did “without Trump and/or the Trump campaign’s specific urging and inspiration.”
Trump has the potential to face more litigation while in office, including lawsuits stemming from his long business career. Since winning the election, he has settled some lawsuits against him out of court.