The Department of Justice issued one on Thursday short with a reassuring point for those who crave accountability for Donald Trump. The department concluded that Ex-Pres compensation can be claimed insofar as his public speech was an incitement to imminent private violence – in this case, the storming of the US Capitol on January 6, 2021.
This is the same test that the courts have developed to distinguish First Amendment-protected speech from criminal or criminal provocations. If accepted by the Court of Appeals, which has sought the opinion of the department, it would mean the plaintiffs — including Capitol Police officers and members of Congress, including California representatives. Eric Swalwell and Barbara Lee – They may seek damages from Trump in a civil suit.
That’s the encouraging news. Under the headline, however, the department offered a standoff and preliminary analysis with the potential to complicate other cases against Trump.
The department’s conclusion follows a series of warnings to hold a president accountable for his actions in office. The ministry consistently emphasizes the unique “complexity of the president’s role in our constitutional system”. It reminds the court that his liability can only be examined “with the utmost sensitivity to the complex and inexorable nature of the office and role of the president.” She emphasizes the need to protect the president from “unnecessarily cautious” performance of his official duties.
For these reasons, the department wrote, proper analysis does not revolve around the question of a president’s motives; the judge only has to look at the objective effect of his actions. Likewise, the court should not attempt to separate the president as campaigner from the president as incumbent, which the plaintiffs argue is an important distinction.
All of these caveats are important because the de facto awards the department rejects could play a crucial role in the numerous civil and criminal cases involving the ex-pres.
The DOJ file includes a footnote disclaiming any view of the president’s criminal liability. Nevertheless, analysis of the civil liability issue may have implications for efforts to bring criminal liability to the former president unless the Department specifically puts forward differing views on criminal liability.
The DOJ is a heavily enclosed space, and the command shows undeniable signs of a delicate compromise between the gang, which champions a broad view of the president’s powers, and prosecutors like Special Counsel Jack Smith, who want to hold Trump accountable for criminal acts . The open question is whether the department will recommend a different analysis if criminal behavior is suspected.
Suppose a court accepts the DOJ line that it should not consider a president’s motives when determining immunity. How might this affect impeachment trials that use evidence of the president’s mental state? An actual charge against Trump for heavily arming, say, Georgia’s secretary of state would necessarily be based on evidence that he had an improper motive — that is, refusing legitimate votes — rather than any legitimate presidential interest in enforcing of voting rights.
And what about the DOJ’s advice that the courts should be very careful to distinguish between conduct in the course of a president’s official duties and conduct as a candidate for re-election? Clearly, the Trump team’s bogus voter schemes and pressure campaign against Vice President Mike Pence were fueled by his ruthless campaign to “win” an election he lost. None of that seems deserving of protection under his presidential duties, but the Justice Department warns that line is too difficult to draw, at least in a civilian context.
Trump’s motives in all of the Jan. 6 plans and his status as a candidate struggling to improperly stay in office are at the heart of what puts his actions far beyond his official duties and makes matters worthy of impeachment.
Perhaps the DOJ can argue that charges of criminal conduct are different because crimes are more clearly outside the responsibility of the president. But Trump is certainly preparing to refute any charges on the grounds that he is immune from prosecution. This week’s letter avoids taking a position on the criminal issue, but the day will come when that question is inevitable.
Let’s hope, once pushed off the fence, the department takes the only position that agrees with Atty. General Merrick Garland’s claim that “no one is above the law”: Trump’s actions are the opposite of his official responsibility and do not deserve immunity by any plausible standard.
Harry Litman is the host of the Talking FBI Podcast. @harrylitmann
Source: LA Times