DOJ Says Inciting a Riot Is Not Part of the President’s Job Description

When Trump appealed Amit Mehta’s ruling that he could be sued for his role in setting off an attack on January 6, Trump said he had absolute immunity from being held accountable for his role in the attack.

The DC Circuit asked DOJ what they thought about that claim.

DOJ has now responded in an amicus filing. They argued that Mehta’s opinion — which held that it is plausible that Trump incited violence at the Capitol — would not cover stuff that is part of the President’s job description.

Here, the district court concluded that plaintiffs’ complaints plausibly allege that President Trump’s speech at the rally on January 6, 2021, precipitated the ensuing attack on the Capitol—and, in particular, that the complaints plausibly allege that the former President’s speech encouraged imminent private violent action and was likely to produce such action. The United States expresses no view on that conclusion, or on the truth of the allegations in plaintiffs’ complaints. But in the United States’ view, such incitement of imminent private violence would not be within the outer perimeter of the Office of the President of the United States.

In this Court, President Trump has not challenged the district court’s conclusion—reiterated by plaintiffs on appeal—that the complaints plausibly allege that his speech instigated the attack on the Capitol. Instead, his briefs advance only a single, categorical argument: A President is always immune from any civil suits based on his “speech on matters of public concern,” Trump Br. 7—even if that speech also constitutes incitement to imminent private violence. The United States respectfully submits that the Court should reject that categorical argument.

The government specifically and repeatedly stated that they are not endorsing Mehta’s opinion. They also make it clear that they’re not stating a view about the criminal liability of anyone for January 6.

[T]he United States does not express any view regarding the potential criminal liability of any person for the events of January 6, 2021, or acts connected with those events.

But they are saying that if Mehta’s opinion holds, then what his opinion covers (and he excluded Trump’s inaction as areas in which he might be immune) would not be covered by the President’s job description.

The United States here expresses no view on the district court’s conclusion that plaintiffs have plausibly alleged that President Trump’s January 6 speech incited the subsequent attack on the Capitol. But because actual incitement would be unprotected by absolute immunity even if it came in the context of a speech on matters of public concern, this Court should reject the categorical argument President Trump pressed below and renews on appeal. Resolving the appeal on that narrow basis would allow the Court to avoid comprehensively defining the scope of the President’s immunity for speech to the public—including when and how to draw a line between a President’s speech in his presidential capacity and speech in his capacity as a candidate for office.

Of note for Scott Perry: In the midst of a passage that explains that a President’s natural incumbency position must render some reelection speech Presidential, it also notes that that’s not true for Members of Congress, because House ethics rules exclude campaign activity from a Member of Congress’ job description.

For those reasons, and because of differences in the applicable legal standards, the outer perimeter of the President’s Office differs from the scope of a Member of Congress’s employment for purposes of the Westfall Act, 28 U.S.C. § 2679. Cf. U.S. Resp. to Mo Brooks’s Westfall Act Pet. at 8-19, Swalwell v. Trump, No. 21-cv-586 (July 27, 2021), Dkt. No. 33 (explaining that Representative Brooks’s speech at the January 6 rally was outside the scope of his employment because House ethics rules and agency-law principles establish that campaign activity is not within a Representative’s employment).

So Members of Congress can’t campaign as part of their jobs. Presidents can. But they cannot — whether to stay in office or for some other reason — incite private actors to engage in violence.

Update: As I laid out here, DOJ may be laying the groundwork for proving aid and abet liability for both Trump and Rudy Giuliani in the near-murder of Michael Fanone. Those exhibits are being presented in the bench trial, before Amy Berman Jackson, of Ed Badalian.

69 replies
    • emptywheel says:

      Nobody knows and it should be said that former Trump WH Counsel Greg Katsas is on this panel and he seems to be really struggling with it. The request for DOJ to weigh in almost seemed like a plea for help. And I think DOJ really strove to give them a way out, which is to rely on Brandenberg.

      If that’s how they ruled, and then Trump possibly appealed something else below, then by that time Jack Smith will have charged or not charged, which might clarify things.

      • Peterr says:

        If the ruling here goes against Trump, I have no doubt he would appeal to SCOTUS. Would they choose to take the case? IDK, but my guess is that they would, if only to weigh in on a question that has little direct precedent. (The Nixon cases are the closest.) How they would rule is anybody’s guess, with this court.

        But I can easily see DOJ writing their brief in this case with one eye toward these lawsuits at issue, and another eye to potential criminal cases they might be bringing later via Jack Smith. Putting these arguments out there now and seeing how they are received may be part of the DOJ decisionmaking on if/how to go forward on other cases re Trump.

        • Rugger_9 says:

          I would concur that SCOTUS grants certiori, but that choice would place them in a bind. Biden is President now, and if SCOTUS rules as Individual-1 wants here then it looks to me like the ruling opens Biden up to employ the same tactics if he wanted (though I doubt he does, but such a ruling would be leveraged for other issues), simultaneously closing off the GOP ability to challenge Biden on anything he does.

          If they rule the other way in support of the DoJ, doesn’t the appeal process preclude piecemeal appeals for issues already available for appeal but not pursued (i.e. can the Trump team go down a list one at a time)? How many of these potential issues were raised before Judge Mehta in the first place?

          OT, except it concerns the riot, I see Speaker McCarthy is trying to claim he’s vetted the 40k+ hours of video with the Capitol police and was caught in another lie that the J6SC didn’t.

        • Glen Dudek says:

          Good post, Rugger_9, but I take issue with a small part, where you say: “simultaneously closing off the GOP ability to challenge Biden on anything he does.” I think there are two venues that might matter here for the GOP challenging Biden – one is the court of public opinion, and another is the House and Senate during a possible impeachment proceeding. Neither of these venues would be affected by such a ruling on the GOP’s ability to claim anything they find convenient.

        • Ginevra diBenci says:

          Peterr, your comment hadn’t popped when I wrote mine in response to the post and EW’s comment. But I see you are thinking along similar Jack Smith-y lines.

      • Ginevra diBenci says:

        DOJ seems to be trying to circumscribe their argument as much as possible, limiting their reasoning to First Amendment + Brandenburg, and repeating the phrase “incitement of private violence” ad nauseum. For several paragraphs I had to remind myself whose side they were supposed to be amicus.

        The ancillary note about not using this “unusual” case to base precedent on going forward gave me queasy Bush v. Gore echoes.

        This brief read like part of a larger strategy; I’m very much wondering what else the department has up its sleeve.

      • rip no longer says:

        In Ind-1’s case, it depends.
        For “the Nation’s Mayor”‘s case, it’s re-adjusting the corsets.

    • Lawnboy says:

      Woody Allens driver said it best.
      ” Woody told everyone he was a Gynaecologist…
      But I never heard him speak no German”.

      One of his 70’s movies when I thought he was ok.

  1. Bobby Gladd says:

    …I’m not on board with going after any person, including Donald Trump, because, “well, somebody’s got to get him for something.” It’s not what prosecutors are supposed to do, and it’s ultimately self-defeating.

    But I do embrace the notion that we cannot simply glide past monumental, democracy-threatening, criminal abuse of power and hope for the best, simply because it would be too difficult and too risky to prosecute.”

    Elie Honig, “Untouchable.”

    He’s real unhappy with Garland.

    • earlofhuntingdon says:

      From your quote, Elie Honig should be paying Joni Mitchell royalties. He might have been better off calling his book, “Clouds,” rather than “Untouchable”, a double entendre that attempts to describe TFG’s Teflon skin, but more strongly infers he has a connection with the crime-stopping mythology of Eliot Ness.

      • Bobby Gladd says:

        “Infers he has a connection with the crime-stopping mythology of Eliot Ness.”

        Yeah. Ok.

        The book’s subtitle is “How Powerful People Get Away With It.” Which is broadly the content addressed. Debating the merits of the argument is fine. Reflexively snarky Ouija Board-based summary dismissal is, well…whatever.

        “I reject two common lines of argument against Trump.

        First, I reject the call for criminal prosecution as a sledgehammer to address all manner of perceived wrongs. Not every abuse or misuse of power is criminal, or appropriately remedied through indictment. But we’ve seen ridiculous “hot takes” from well-known commentators calling for criminal prosecution of Trump for everything from manslaughter charges over his mishandling of Covid-19 to criminal election obstruction for his public comments opposing certain funding to the US Postal Service.” [pg 273]

        • earlofhuntingdon says:

          “I reject two [opposing] common lines of argument….”

          Hence, my suggestion that Elie pay Joni Mitchell royalties for having “looked at clouds from both sides now.”

  2. bmaz says:

    Elie Honig is a TV lawyer idiot. Nobody gives a shit if he is “unhappy”. Please try to play in the real world.

  3. Savage Librarian says:

    Well, at least we could pop open a Shasta Cola while we’re waiting for what happens next with Dominion.

      • James Wimberley says:

        A sobering thought from Wikipedia: “The concerti were never played in his [the dedicatee Margrave Christian Ludwig’s] lifetime, as they were considered too difficult for the court musicians to play. They were sold upon his death and placed in an attic, until discovered by a servant in 1849, who was cleaning it out.” If Bach was angling for a job at the Margrave’s little court in Berlin, he didn’t get it.

  4. Shadowalker says:

    Think they missed an important point.

    “ immune from any civil suits based on his “speech on matters of public concern,”

    The public concern was satisfied with the election and the 60+ court cases that were decided in the ensuing months.

  5. Randy Baker says:

    I assume “T.V. lawyer” means a lawyer who has expresses opinions on television, and that such lawyers, e.g. Andrew Weissman, are pretend lawyers or otherwise less qualified than lawyers who do not opine on television. Could you be so generous as to share your citation for that proposition.

    • earlofhuntingdon says:

      A constipated definition. It’s not about their qualifications or experience, which are sometimes stellar. The label refers to their willingness to put their egos above good lawyering and to exaggerate for ratings effect. It’s about their willingness to oversimplify and to lose sight of a detail or a nuance necessary to understand a issue or a case.

      It concerns their willingness to stick to an editorial perspective their host and producer want to sell, which might dictate whether they appear once or often. That’s for starters, but it would surprise me if you didn’t already know that.

      • PJB2point0 says:

        That is well put. Honig appears to me to like the camera a bit too much and that probably informs his negative schtick about Garland. Gets the libs riled up. And of course, there is a fundamental problem with trying to get sensible and dispassionate analysis on cable tv given the overriding need to give the audience dopamine hits to encourage continued engagement. But, putting all that aside, it seems to me that unless we fully discount as too pliable the views of all legal analysts who appear on tv, we need some means of differentiating whose views should be more or less listened to. What metrics would you say should be used? Or maybe you say better to just turn off the boob tube entirely?

        • timbozone says:

          >What metrics would you say should be used?

          Common sense mixed with a healthy does of cynicism is one way to approach TV lawyers… It helps if you are interested in familiarizing yourself with the area of the law they’re pontificating on as well. So, yeah, checking what they’re saying with what actual law blogs and, always, actual judicial rulings that set precedent, read from the source directly, not as ‘splained on TV.

        • Bobby Gladd says:

          For the record (not that it matters here), I don’t get CNN or MSNBC. My reference to Honig was about his book “Untouchable,“ which I read carefully (it was not a book-length anti-Garland screed). I was not citing his “TV lawyering.” While concerns about any “editorial perspective their host and producer want to sell” are legit, it’s dubious that such would extend to his book publisher.

        • earlofhuntingdon says:

          I’m dubious about your notion of what book publishers are unwilling to do to sell more books.

        • Doctor My Eyes says:

          I can’t remark on the specifics of Weissmann, but I’m familiar with the pitfalls of superficial knowledge. Studying history, I learned that even well-intentioned textbooks mislead as much as they inform, not least by context and implication. Reading the NYT or listening to NPR gives one the impression that they are well-informed, which in many ways is worse than knowing nothing. Crucial context is omitted, editorial angles are slipped in slyly. Sadly, the only way to actually be well informed is to crawl through the weeds, as is done here. And this is to ignore the more blatant and conscious skewing of information to keep viewers enthralled. Let’s face it, unraveling complexity is often frustrating and boring. Friends, the world does not yield to ideological simplicity.

        • PJB2point0 says:

          I rarely watch these guys since i rarely watch cable news. But, Honig and to a lesser extent Weissman tend to opine critically on the supposed slowness of the DOJ investigations as if, because they have worked in prosecutors’ offices, have actual knowledge of what is going on behind the scenes when they do not. To me, having the humility to note what they do not know, is absent and it is my speculation that it is because they generate greater ratings (and thus more appearances) if they say something that will inflame the partisan viewership. The whole model of cable tv makes me (and I suspect alot of long-timers on this site) very skeptical of the views of these “experts.”

        • Alan Charbonneau says:

          “To me, having the humility to note what they do not know, is absent and it is my speculation that it is because they generate greater ratings (and thus more appearances) if they say something that will inflame the partisan viewership”

          Yes. Glenn Kirschner would constantly gripe about how Congress should use its inherent power of contempt and how Merritt Garland was moving too slow. Part of this may be arrogance, but I suspect it’s also part of a strategy to retain viewership. By complaining about DOJ and how they should do things differently, he is telling his audience what they want to hear, that there is a simple solution to a complex problem.

          “For every complex problem there is an answer that is clear, simple, and wrong.”
          — H. L. Mencken

  6. Rugger_9 says:

    Semi-OTs continued: Digby also posted an article from CNN about who the fall person will be for the Fox News debacle. She’s pretty solid about vetting her information, and the ‘winner’ according to CNN is Suzanne Scott, CEO of Fox News. The background explanation is worth the read, but I would note that nothing happens at NewsCorp without Rupert and Lachlan Murdoch’s approval. Note how often in the Dominion filings that the key decisions were run through at least one of them before Fox actions.

    McCarthy got busted by Bennie Thompson (who doubtless has his receipts) for his lie, and McC claims now that only 14k hours or so had been provided to Carlson’s show, but … Carlson says he has unfettered access to all of the tapes even if interested in only ‘some parts’ of the record. That sounds like selective editing to me is on its way. Who is lying here? Tough call.

    • Doctor My Eyes says:

      The next best thing to not getting caught is to blame it on a woman. Off the top of my head I think of Colonel Karpinski at abu ghraib, where the torture methods being deployed were the result of decades of research to create uniquely American torture methods. They also tried to pin torture at Guantanamo on a female trainer whose name I don’t remember. I still can’t believe Martha Stewart actually served time for something these tycoons do every day. There are many examples I’ve casually noticed over the years. Of course, a woman is to blame for Fox News.

      • Rugger_9 says:

        Two points:

        Abu Ghraib’s leadership from the platoon sergeant on up should have been brought up on charges, since in the military officers are supposed to be aware of their subordinates’ activities and therefore they own them. However, the ones who went to the stockade were low-level NCOs at best. The Army did not cover itself in glory even if they managed to deflect attention away from Dick Cheney (the most likely alleged mastermind). IMHO the accountability we were expected to have as officers has been steadily worn away with each event that could be blamed on rogue enlisted personnel (i.e. USS Iowa, etc.).

        As for Rupert, Amanda Marcotte over at Salon has a piece about why Murdoch decided to fight Dominion instead of settling out of court. Her conclusion is mostly right IMHO, in that the rise of MAGA intervened between earlier settlements and the present case. It’s fear of losing market share as noted by Murdoch in his deposition, and she is correct that the MAGA cult doesn’t care about truth, only Lib-Owning.

        Where she whiffs (IMHO) is whether Faux has any concerns about being seen as a news organization. If they were even remotely concerned, they would have fought harder against Canada’s refusal to let them use the term ‘News’ for their network broadcasts there.

  7. earthworm says:

    apologies to the mcgarrigles:

    I could say coup over and over and over
    I could say maybe maybe maybe ’til my tongue spirals out of my head
    When there’s no one looking over my shoulder
    I like to write lawyers, guns and money but it doesn’t always hang together
    So what do I know
    Or anyone know about coup

    You ask me how I feel
    I said my heart was like a wheel
    Why don’t you listen to it sometime
    I’ve walked upon the moors
    On many misguided tours
    Where lauren marge and kevin
    Poured their hearts out
    And what did they know
    What could they know about coup
    Or anyone know about coup
    I could say coup over and over and over
    I could say maybe maybe maybe and make you think I mean it maybe
    I’m goin’ up a (capitol) hill rollin’ a boulder
    Tryin to write lawyers guns and money
    But it doesn’t keep body and soul together
    So what do I know
    Or anyone know about coup
    You ask me how I feel
    I said my heart was like a wheel
    Why don’t you listen to it sometime
    I’ve walked upon the moors
    On many misguided tours
    Where rupert sean and tucker
    Poured their hearts out
    And what did they know
    What could they know about coup
    Or anyone know about coup
    Coup over and over and over
    Maybe maybe maybe ’til my tongue spirals out of my head
    Over and over and over
    Maybe maybe maybe and make you think I mean it, maybe
    Coup over and over and over
    Maybe maybe maybe ’til my tongue spirals out of my head
    Over and over and over
    Maybe maybe maybe and make you think I mean it, maybe

    • Ginevra diBenci says:

      earthworm, you reminded me how much I miss Anna and Kate. Very much a part of my emotional landscape when I was young, despite my voice having dropped from soprano to alto and thus making it hard for me to sing along to their delicate, gorgeous vocals. I listened so closely though I could hear the Canadian landscape woven into the music.

  8. Konny_2022 says:

    When reading the brief I thought DOJ makes many concessions as to the scope of immunity. However, it looks (at least to me) that they want to narrow the case in order to accelaterate it. Cf. quotes on p.21 (pdf p.29): “Such a narrow decision would leave for further proceedings in the district court (and, if necessary, a future appeal) any renewed assertion of absolute immunity more narrowly focused on whether the former President’s speech actually constituted incitement.” And, immediately thereafter: “3. Such a narrow decision would allow the Court to avoid deciding other questions about the scope of presidential immunity, including when and how courts should attempt to separate the President’s official and campaign roles.”

    What I don’t understand though is the necessity to include footnote 4 on p.15 (pdf p. 23): “The district court correctly dismissed the claim alleging that President Trump improperly failed to exercise his official powers to stop the January 6 attack. JA 241-42. Nixon forecloses such a claim because it is premised on an allegation that the President had an improper motive for declining to take official action. See 457 U.S at 750, 756.” I don’t think the allegation of inaction always goes straight to the motive. If there was an obligation to take action, wouldn’t inaction then be a dereliction of duty, whatever the motives?

    • GV-San-Ya says:

      As I understand it, dereliction of duty is only prosecuted in military courts. The president —even though he serves as Commander in Chief— is not subject to courts martial.

      • Rugger_9 says:

        Maybe DoJ was going for the failure to follow through on his oath of office which requires protecting the USA and upholding the laws. ‘Dereliction of his duties’ would be an accurate description in that case and unless DoJ is silly enough to prosecute under UCMJ (Garland isn’t that silly) I don’t think it would be a big deal. It’s more important what statutes they do file under, when they do.

        However, let’s see if the RWNM seizes on the footnotes as ‘proof’ of a witch hunt.

    • montysep says:

      Footnote 4 and also footnote 2 was surprising. I’m far from an expert on civil vs criminal law and thought there was some nuance there that led to the District Court rulings (suppose it’d help to read that time permitting).

      The following article considers questions of “inaction” more fully. It also links to additional articles on the subject and even to a counter argument.

      • Amicus says:

        Thank you for the link to the justsecurity article, it is consistent with my thoughts about inaction. I understand DOJ’s and J. Mehta’s desire to foreclose this avenue of civil liability. And DOJ historically, with the odd turn here and there, has consistently argued in favor of Presidential authority. As regards potential criminal liability I recognize that DOJ will certainly want to have overt actions as a predicate to any indictment of Trump related to January 6. Nevertheless, in this specific context, the inaction speaks volumes. It ought to be criminal. I believe the law has sufficient plasticity that it could be found to be criminal.

        When you look at the Court’s decisions addressing Presidential authority so much seems to turn on context. Look at Youngstown and United States v. Nixon. When Cox was presented with the problem of issuing a subpoena to Nixon he didn’t have much more to work with in terms of precedent than Youngstown and United States v. Burr. But when the issue finally got to the Supreme Court, Jaworski had good facts.

        Now the present Court is its own animal entirely. Nevertheless, in the words of John Adams, facts are hard things. If a President can with impunity sit back and watch the storming of the Capitol, what about the Court itself?

        • bmaz says:

          Alschuler, and his Just Security article from August of 2022, is naive and full of it. Best as I can tell, Alschuler has never tried a real criminal case, much less a complex conspiracy. But he sure does have diarrhea of the pen over the years. He is the type of idiot that would go off half cocked without all the evidence and elements of the crimes he argues for buttoned down.

          People that actually know what they are doing know that having everything in place is essential before charging. That is still not the case yet by everything publicly known. Also, Alschuler bases most of his article on things adduced by the quite flawed J6 Committee “hearings” and other yappers in the media. Those were not legitimate hearings, they were slickly edited for TV infomercials. Extremely little, to the extent there is any tag all, of the Committee’s “evidence” will. be admissible in a real criminal court, even the documentary evidence, without live witnesses to testify and lay the foundation for it. Alschuler, of course neither understands this nor relates it. At one point he actually seems confounded that the extremely few Committee live witnesses may have to restate their Committee testimony in “other courts”. What a buffoon.

          If you are going to go after the king, you damn well be ready and able to kill the king. And Alschuler’s determination is to focus heavily on the most imaginably difficult charges possible to argue and get a conviction on. That is straight up stupid.

          I have news for Alschuler and the rest of you baying for swift charging and accountability for Trump and his closest allies, it is a LOT more difficult in a real live court with real adversarial counsel and actual Rules of Evidence. Constantly baying on the internet is easy, doing it in real court, especially against a former President, is very much not. Take a seat and let Garland, Monaco and Smith get this. Let’s get it right.

        • Richard Turnbull says:

          Exactly. The entirely justified wish to nail the vile and odious Trump and his enablers can cloud the reason. The Special Counsel must offer relevant, probative evidence that can survive close scrutiny and witness testimony that can withstand cross-examination, in any cases filed.

        • Rwood0808 says:

          Wanting justice to be served is one thing, but limiting a criminal’s continued impact on important matters while we all wait patiently for said justice is another. People what him charged because they feel it will stop the bleeding. Misguided as that may be, its what they believe.

          Right now we have a trump clone in the form of DeSantis running for the top office. Few doubt it will come down to him and trump fighting for the GOP ticket. If trump is spending all of his time in court or awaiting sentencing from now until the election, the DOJ does DeSantis a favor.

          But we can’t forget the “trump or nobody” voters. Those hard-core magats aren’t going to vote for anyone but dear leader. And trump will never tell them to vote for somebody else. They’ll stay home if he’s not on the ballot.

          So are we now past the date that charging trump was a net-positive and have now delayed our way into a time when its better to hold off and let him spit the GOP ticket?

          Before you tell me that it doesn’t matter as one doesn’t care about the other, spare me. We all know it does even if it shouldn’t.

          Either way, my money is on Willis to bring the first indictment, which I think will make the DOJ, Garland, and Smith, look like doddering fools to the public.

        • bmaz says:

          The DOJ and criminal justice system does not work on the polling and feelings of “what people in the public” want or desire. Willis is an ethically challenged, PR seeking, tool. And she does not have squat to do with DOJ, Garland and Smith. Willis is not competent enough to make them “look like doddering fools”. Your insinuation that charging of Trump should be a political concern as to the 2024 election is simply gross.

        • Amicus says:

          This wasn’t a call for action. It’s an observation that Trump plainly joined in the storming of the Capitol by inaction. It’s been normalized along with much of the Republican party’s descent into naked authoritarianism as this site as pointed out. And maybe Alschuler has it wrong and my focus on this is misplaced. Regardless, I remain convinced, in theory, his deliberate inaction purposefully and criminally abetted the attackers. It’s a point to show the true nature of things.

          There are many potential indictments, such as the Daniels hush money, the electoral obstruction, the stolen documents, the false electors, and the events of January 6 (which appear to encompass much of the rest of these). It may be that the most promising to secure a conviction is the fund raising fraud which seems to be a bit under the radar. It’s the kind of case DOJ and the FBI seem to excel at. You could likely get a favorable venue. And it would seem to lack the First Amendment issues that could cloud some of the other potential charges. I don’t particularly care which charge sticks. Just as long as it one that is punishable by serious jail time.

        • bmaz says:

          The statute of limitations has run on any 2016 campaign violations including Stormy Daniels. The only venue DOJ wants to be in is DC, so venue hunting is irrelevant. And, no, 1A is in the background of anything and everything with a former sitting President.

    • emptywheel says:

      DOJ is taking a somewhat significant step away from precedent–away from the stance that Garland upheld in the E Jean Carroll case.

      They want to write this to minimize the possibility anyone in the future will hamstring a President by suing them constantly. An obvious threat given how many ways the GOP is already trying to hamstring Biden.

      • Shadowalker says:

        “ They want to write this to minimize the possibility anyone in the future will hamstring a President by suing them constantly.”

        They didn’t need that when they went after Bill Clinton, nor Obama while they were in office. This looks to me more of the idea that Trump is an aberration more than the norm and should be treated as such.

  9. montysep says:

    Quite a succinct intuitive artfully written & narrow amicus filed here by the Government. It feels like a polite hopeful naive quaint cute package tied to the tracks in front of an unrelenting dark barrelling authoritarian train. May these last gasps breathe enduring light upon the principled.

  10. The Old Redneck says:

    It must be tough representing Trump. Because his conduct is so far out there, his lawyers can only protect him by arguing the most absolute/draconian immunity standards. Courts generally don’t like absolute rules. They always end up creating embarrassing results down the road, then the inevitable egg-on-your-face jurisprudential retreat.
    Trump’s blanket immunity claim is a nonstarter. I agree with others that the court is looking to DOJ for a lifeline – i.e., please, please give us some sort of sane framework from which to start!

    • Ginevra diBenci says:

      Trump’s blanket immunity claim may or may not prove to be “a non-starter.” We can hope it does. What’s more interesting is that it’s the only argument he (meaning his lawyers) is making, as opposed to, say, actual innocence.

      • timbozone says:

        Yes. It’s an apparent attempt to cement raw power at the expense of everything else.

        The Judicial branch is right to ask the Executive what it is they really want in this area before making a decision of course. Let’s hope that there’s some good to great nuance in what is finally decided. Our Republic is not strengthened by this ongoing turmoil, encouraged by authoritarians and circumstance, over where the President’s power becomes absolute. Ideally, the President’s power would never be absolute. The fact that the courts keep entertaining the possibility is not a good sign at all.

        • Ginevra diBenci says:

          timbozone, DOJ has limited their answering brief in such a way as to almost render what you’re asking for an impossibility. They explicitly suggest *not* using the instant case to establish precedent; they repeat (and repeat!) the limitations of their argument to precedent set under Brandenberg; and they distance themselves, also repeatedly, from legal arguments made by the plaintiffs seeking damages.

          It would be hard for any judge to use this amicus brief to achieve what you appear to be looking for. But as a number of us have noted above, DOJ seems to have a larger strategy that is going “cautiously” unstated here. Now *that* might hold more promise in terms of what you’re looking for.

Comments are closed.