Wednesday, June 12, 2019
President Trump today formally asserted executive privilege over documents related to the Commerce Department's addition of a citizenship question on the 2020 Census. The assertion, communicated by the Commerce Department, comes after the Justice Department informed House Oversight Committee Chair Elijah Cummings late yesterday that it would ask the President to assert executive privilege if the Committee proceeded with a contempt vote against AG William Bar and Commerce Secretary Wilbur Ross.
In yesterday's letter, Assistant AG Stephen Boyd wrote,
a limited subset of the documents is protected from disclosure by the deliberative process, attorney-client communications, or attorney work product components of executive privilege. These are the kind of materials that the Executive Branch regularly and appropriately withholds in connection with oversight matters, because the disclosure of such information would have a significant chilling effect on future deliberations among senior executive branch officials, and would compromise the confidentiality on which the Executive Branch's attorney-client relationships depend. . . .
The Committee has failed to abide by the constitutionally mandated accommodation process by declining to negotiate over the scope of the subpoenaed materials or to recognize legitimate executive branch interests, as well as by its premature decision to schedule a contempt vote. In the face of this threatened contempt vote, the Attorney General is now compelled to request that the President invoke executive privilege with respect to the materials . . . .
Accordingly, I hereby advise you that the President has asserted executive privilege over the specific subset of the documents identified by the Committee in its June 3, 2019 letter--documents that are clearly protected from disclosure by the deliberative process, attorney-client communications, or attorney work product components of executive privilege. In addition, I advise you that the President has asserted executive privilege over the balance of the Department's documents responsive to the Committee's April 2, 2019 subpoena. As the Attorney General indicated in his letter to you yesterday, this protective assertion of executive privilege ensures the President's ability to make a final decision whether to assert privilege following a full review of these materials.
Tuesday, June 4, 2019
White House Counsel Pat Cipollone wrote to House Judiciary Committee Chair Jerrold Nadler today that the White House had instructed former staffers Hope Hicks and Annie Donaldson not to comply with Committee subpoenas for documents related to their time in the White House. The instruction is categorical.
The reasons are all too familiar, even if ill defined. Cipollone wrote,
Th[e subpoenaed documents] include White House records that remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege.
It's not at all clear which documents Cipollone is referring to (all? some? which?), and it's not clear how "confidentiality interests" and executive privilege apply. Cipollone writes that this spaghetti-on-the-wall approach has DOJ's concurrence. He also writes that the White House and the Committee might be able to work something out.
Absent from this latest White House effort at frustrating congressional oversight is another familiar claim: that the Committee has no "legitimate legislative purpose" in the material. Perhaps that'll come out if and when this goes to litigation.
Wednesday, May 8, 2019
The House Judiciary Committee just voted to hold AG Barr in contempt of Congress for failing to comply with a Committee subpoena and turn over the full (unredacted) Mueller report and related documents.
The move comes shortly after the White House asserted a protective executive privilege over the subpoenaed material.
The resolution now goes to the full House for a vote.
President Trump today asserted protective executive privilege to prevent the release of the full (unredacted) Mueller report to the House Judiciary Committee.
The assertion is only provisional and temporary, however, in order to give the White House time to make a final determination whether to assert the privilege. The move thus buys time for the White House against the Committee's subpoena and potentially against the Committee's markup on a resolution holding Barr in contempt of Congress.
AG Barr requested the move in this letter to the White House. As Barr explained, "In cases like this where a committee has declined to grant sufficient time to conduct full review, the President may make a protective assertion of the privilege to protect the interests of the Executive Branch pending a final determination about whether to assert the privilege." (Citing this 1996 OLC opinion.)
The Department made this request because, although the subpoenaed materials assuredly include categories of information within the scope of executive privilege, the Committee's abrupt resort to a contempt vote--notwithstanding ongoing negotiations about appropriate accommodations--has not allowed sufficient time for you to consider fully whether to make a conclusive assertion of executive privilege. The Chairman, however, has indicated that he intends to proceed with the markup session scheduled at 10 a.m. today on a resolution recommending a finding of contempt against me for failing to produce the requested materials.
In these circumstances, you may properly assert executive privilege with respect to the entirety of the Department of Justice materials that the Committee has demanded, pending a final decision on the matter.
Thursday, May 2, 2019
Trump Administration officials continue to thwart efforts at congressional oversight, citing separation-of-powers and congressional authority, among others, as the basis for refusing to comply with requests for testimony and documents. The particular reasons for declining to comply vary depending on the request, however, with one consistent theme: The Administration repeatedly claims that congressional requests exceed Congress's oversight authority. (It also claims that members of Congress previously adopted different positions with regard to congressional oversight of a different president, that the administration has already provided plenty of material, and that requests are politically motivated. These, of course, are not constitutional reasons not to comply.)
We posted here on the White House's arguments in support of its decision to decline to make Steve Miller available for testimony. We posted here on President Trump's lawsuit against his accountant to halt compliance with a congressional subpoena for his financial records.
Here are four new cases this week:
White House Security Clearance Process
Pat Cipollone, counsel to president, wrote to House Oversight Committee Chairman Elijah Cummings that it would not comply with Committee requests for files related to the White House security clearance process. Cipollone argued that "the Committee's inquiry is also legally unsupportable for several reasons." First, the Committee's efforts to "investigat" "specific individuals" is outside the Committee's oversight authority. Next, the Committee's request for individual files "has no legitimate legislative purpose." Third, the Committee seeks documents that are "at the heart of executive privilege," that reflect internal executive branch deliberations, that, if disclosed, "would undermine the investigative process, expose sensitive information that could jeopardize the FBI's ability to conduct future investigations, and raise serious separation of powers concerns," and that "implicate sensitive information." Finally, "the Committee appears to be putting public servants at risk in order to advance a partisan political agenda."
The Full Mueller Report and Materials
Assistant AG Stephen Boyd wrote to House Judiciary Chairman Nadler that DOJ would not turn over the unredacted Mueller report and supporting materials. Boyd cited past Department practice, and concluded that
Against this backdrop of the Department's compelling need to protect the autonomy and effectiveness of its investigations, as well as the extraordinary steps the Attorney General has already taken to accommodate the Committee's needs, the Committee has not articulated any legitimate legislative purpose for its request for all of the Special Counsel's investigative files. The Committee has no legitimate role in demanding law enforcement materials with the aim of simply duplicating a criminal inquiry--which is, of course, a function that the Constitution entrusts exclusively to the Executive Branch.
Moreover, "disclosing grand-jury information in response to congressional oversight requests is prohibited by [Rule 6e of the Federal Rules of Criminal Procedure]."
Barr's Testimony Before the House
AG Barr refused to show up at his House Judiciary Committee hearing today, apparently because he didn't like Nadler's rule that Committee attorneys would also question him. Best we can tell, he apparently thinks this is a separation-of-powers problem, because only members should be able to question him.
Trump's Suit Against Deutsche Bank and Capital One
President Trump filed suit against Deutsche Bank and Capital One to stop them from complying with congressional subpoenas for his financial records. The suit is similar to the one he filed against his accountants. It argues that the subpoenas exceed Congress's oversight authority, because they lack a "legitimate legislative purpose," and violate the Right to Financial Privacy Act.
Monday, April 15, 2019
As many wait for the Mueller Report now promised for Thursday, questions regarding the redactions mount. Two articles are worth a read.
Jenessa Calvo-Friedman, writing from the ACLU perspective, argues that The American Public Deserves to See the Mueller Report With as Few Redactions as Possible and outlines the types of possible redactions and arguing that there should be as few redactions as possible. She concludes that in any event, Congress must see the report without any redaction.
Professor Rick Hasen provides a list for looking at the redacted report, The Seven Things to Look for When Reading the Redacted Mueller Report, with number seven being the ultimate and most difficult:
To what extent does it look like Barr is trying to protect Trump and Trump’s family, such as Donald Trump Jr.? Despite his expected redactions, has Barr made it possible to evaluate Mueller’s reasoning or the evidence collected?
Monday, March 18, 2019
Attorney General Barr invoked the state secrets privilege to protect material in Twitter's suit against the Justice Department for forbidding it from publishing information on National Security Letters and surveillance orders that it received from the government.
The case, Twitter v. Barr, arose when Twitter sought to publish a Transparency Report describing the amount of national security legal process that the firm received in the second half of 2013. Twitter sought to publish this information because it said that the government wasn't completely forthcoming in its public comments about the extent of national security legal process served on it. DOJ declined Twitter's request to publish the information, citing national security concerns, and Twitter sued under the First Amendment. Here's Twitter's Second Amended Complaint.
DOJ now asserts the state secrets privilege in order to protect certain information in the pending case. But there are two things that make the assertion a little unusual. First, DOJ asserts the privilege not against the Transparency Report itself or the information contained in it, but instead against a confidential submission (the "Steinbach Declaration") that explains why Twitter's request to publish this information could harm national security. In other words, DOJ says that the explanation why the underlying information could harm national security itself could harm national security.
Next, Twitter's attorney now has a security clearance to view the material, yet DOJ argues that the privilege should still protect the material--even from Twitter's security-cleared attorney. (DOJ's position has been that the court could review material in camera and ex parte and make a determination as to whether it could come in.) In fact, much of the government's submission is dedicated to arguing why privileged material can't be released to a security-cleared plaintiff's attorney. (In short: It would increase the risk of disclosure.)
The government argues that the privileged material is such an important part of Twitter's suit that, without it, the court must dismiss the case.
DOJ cites four categories of privilege-protected classified national security information that appear in the Steinbach Declaration: (1) information regarding national security legal process that has been served on Twitter; (2) information regarding how adversaries may seek to exploit information reflecting the government's use of national security legal process; (3) information regarding the government's investigative and intelligence collection capabilities; and (4) information concerning the FBI's investigation of adversaries and awareness of their activities.
The government's submission is supported by declarations of AG Barr and Acting Executive Assistant Director of the National Security Branch of the FBI Michael McGarrity. The government separately submitted a confidential version of McGarrity's declaration.
Importantly, AG Barr's declaration draws on the Attorney General's Policies and Procedures Governing Invocation of the State Secrets Privilege, adopted in the Obama Administration as a response to the widely regarded overly aggressive assertions of the privilege during the Bush Administration. AG Barr's references to this document suggest that the current DOJ will respect the principles stated in it.
Thursday, March 14, 2019
In its opinion in Zervos v. Trump, the Appellate Division, First Department of the New York State courts held that the lawsuit for defamation could proceed against the President while he is in office.
Recall that in March 2018, the New York state trial judge ruled the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status. The trial judge decided that the holding of the United States Supreme Court in its unanimous 1997 decision of Clinton v. Jones that then-President Clinton was subject to suit in federal court extended to state court. Recall also that soon thereafter, the appellate division in New York denied President Trump's motion for a stay, in a summary decision, and likewise soon thereafter, the New York Court of Appeals (NY's highest court) dismissed the appeal by Trump on the ground that the order appealed from does not finally determine the action.
In today's divided decision, the appellate division reached the merits of the trial judge's opinion with the majority affirming the decision regarding the President's amenability to suit, and all five judges agreeing that there was a claim for defamation.
Writing for the majority of three judges, Judge Dianne Renwick concluded that the Supremacy Clause, Article VI, does not bar a state court from exercising jurisdiction. She rejected Trump's argument that because he is the "ultimate repository of the Executive Branch's powers and is required by the Constitution to always be in function" as being without support in the constitutional text or case law and conflicting with the fundamental principle that the United States is a "government of laws and not of men." After a detailed discussion of Clinton v. Jones, she stated that in short, the decision "clearly and unequivocably demonstrates that the Presidency and the President are indeed separable." She continued that "aside from the forum, plaintiff's case is materially indistinguishable from Clinton v. Jones," and noted that Congress had not acted to afford the President more protection, interestingly citing and quoting an article by the most recent Supreme Court Justice, Brett Kavanaugh.
The difference between the majority and the dissent is centered on footnote 13 of Clinton v. Jones:
Because the Supremacy Clause makes federal law "the supreme Law of the Land," Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are "faithfully executed," Art. II, § 3, may implicate concerns that are quite different from the interbranch separation-of-powers questions addressed here. Cf., e.g., Hancock v. Train, 426 U.S. 167, 178—179 (1976); Mayo v. United States, 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed.1988) ("[A]bsent explicit congressional consent no state may command federal officials ... to take action in derogation of their ... federal responsibilities")."
But as the majority opinion explains,
the cases cited in the footnote above suggest only that the Supreme Court was concerned with a state's exercise of control over the President in a way that would interfere with his execution of federal law (Hancock, 426 US at 167 [holding that the State of Kentucky could not force federal facilities in the State to obtain state permits to operate]; Mayo, 319 US at 441 [holding that a Florida state official could not order the cessation of a federal fertilizer distribution program]; but see Alabama v King & Boozer, 314 US 1  [holding that the State of Alabama could charge a tax on lumber that a federal government contractor purchased within the state for construction of an army base, where the federal government would ultimately pay the tax]).
The difference between the majority and dissent centers on the possibility that a state court could hold the President in contempt. For the majority, this is a "hypothetical concern" that is not presently before the court, noting also that contempt is unusual in all circumstances and state courts would be aware of the issue. For the dissent, on the other hand, although there is no reason to believe the President Defendant "would not cooperate in the litigation, there is no way to be absolutely certain that the court would not at some point have to take steps to protect its own legitimacy;" the contempt power would be a "sword of Damocles hanging over the President's head."
All judges agreed that Zervos stated a claim for defamation, rejecting Trump's claim that the statements were mere hyperbole and not pertaining to the plaintiff. Instead, he was clearly including Zervos in statements and his "flat-out denial of a provable, specific allegation against him concerning his own conduct, accompanied by a claim that the accuser was lying" is not rhetorical or a statement of opinion.
Presumably, the case will be heard on appeal by New York's highest court.
[image: Richard Westall, Sword of Damocles, 1812 via]
Monday, February 25, 2019
In a complaint filed in United States District Court for the Middle District of Florida against Donald Trump and the Donald Trump Campaign, former campaign staffer Alva Jones seeks relief on three counts: battery as against Trump in his individual capacity for a forcible kiss; unequal pay based on gender under the Unequal Pay Act against the Campaign organization; and unequal pay based on race under 42 USC §1981 against the Campaign organization.
The 39 page complaint in Jones v. Trump is filled with factual allegations, embedded tweets and photographs, and numerous footnotes. The allegations substantiating the battery claim include recitations regarding previous allegations and statements regarding similar actions.
Like the ongoing suit in New York state courts, Zervos v. Trump, for defamation linked to sexual harassment, one issue that defendant Trump could raise would be presidential immunity. But the argument for any immunity is exceedingly weak given the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to suit in federal court. And any immunity does not extend to the campaign organization.
And as Ronan Farrow writes in the New Yorker:
The most legally significant aspect of Johnson’s suit may ultimately be something the complaint does not explicitly address: the pervasive use of nondisclosure agreements by Trump during his campaign and in his Administration. Johnson’s suit is at least the sixth legal case in which Trump campaign or Administration employees have defied their nondisclosure agreements.
This will definitely be a case to watch, even if the constitutional issues are not the primary ones it certainly has constitutional dimensions.
Thursday, June 14, 2018
On its own motion, the New York Court of Appeals (NY's highest court) dismissed the appeal by Donald Trump in Trump v. Zervos.
From its decision list, the court's entire "opinion" reads:
On the Court's own motion, appeal dismissed,without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.
Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.
Motion for a stay dismissed as academic.
Recall that in May, the appellate division in New York denied President Trump's motion for a stay, in a summary decision. Recall that in March, the state trial judge ruled the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status. The trial judge decided that the holding of the United States Supreme Court in its unanimous 1997 decision of Clinton v. Jones that then-President Clinton was subject to suit in federal court extended to state court.
Petitioning the United States Supreme Court for a stay would be the next step if the president wants to halt the defamation lawsuit against him for as long as he is president. Otherwise, the case will proceed including presumably discovery which would mean a deposition of the president.
Sunday, June 3, 2018
The New York Times released a memo penned by Trump lawyers to Special Counsel Robert Mueller earlier this year outlining their theory of executive power and privilege in relationship to Mueller's investigation.
The memo is only the analysis of President Trump''s lawyers. It's not the law. Getting a judicial decision on these issues would require this extraordinary sequence: (1) Mueller to subpoena President Trump to testify, (2) President Trump to decline, and (3) Mueller to attempt to enforce the subpoena in court.
The memo contains a number of eye-popping claims, highlighted by the Times in its analysis. Here are two broad, even breathtaking, constitutional positions in the memo:
1. The President, by definition, cannot commit obstruction (or even any other federal crime). The memo says that the President, as chief executive, cannot constitutionally commit obstruction of a federal investigation:
It remains our position that the President's actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.
The language seems to justify absolute presidential immunity for two different reasons, (1) because prosecution would amount to the president obstructing himself, and (2) because he could terminate the inquiry or issue pardons (presumably even pardon himself). The second reason sweeps beyond obstruction charges and suggests that the President, by definition, cannot violate any federal law, recalling President Nixon's infamous claim that "when the President does it, that means that it is not illegal."
2. The President is protected against an interview with Mueller by executive privilege. Citing In re Sealed Case (the Espy case), the memo concludes that President Trump is protected by executive privilege, because Mueller already has enough information to answer the questions he's investigating:
The records and testimony we have, pursuant to the President's directive, already voluntarily provided to your office allow you to delve into the conversations and actions that occurred in a significant and exhaustive manner, including but not limited to the testimony of the President's interlocutors themselves. In light of these voluntary offerings, your office clearly lacks the requisite need to personally interview the President.
Notably, the memo does not offer a specific reason for the privilege beyond the President's general need for frank and candid advice from advisers. Instead, it takes the tack that Mueller already has the information he needs, and that he hasn't demonstrated a need to interview the President himself. But this conclusion rests on the many and highly questionable assumptions and conclusions in the rest of the memo, in particular, that the President can't obstruct justice, that he didn't intend to, anyway, and that there was no collusion with Russia.
It also assumes, of course, that Mueller actually has all the information he needs about President Trump's involvement.
Wednesday, May 23, 2018
Check out Garrett Epps's piece at The Atlantic on whether the President can be indicted. Epps surveys the legal opinions on this, and asks several scholars, only to conclude that "[w]e just don't know, and we won't know, whether it's allowed until we open the box . . . ."
Thursday, May 17, 2018
In a terse ruling in Zervos v. Trump, the appellate division in New York cleared the stage for the defamation lawsuit against the president to move forward.
Recall that the trial judge, stating that "No one is above the law," ruled the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status.
The entire appellate division opinion reads:
An appeal having been taken from an order of the Supreme Court, New York County, entered on or about March 20, 2018,
And defendant-appellant having moved for a stay of the action pending hearing and determination of the aforesaid appeal,
Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,
It is ordered that the motion is denied.
Wednesday, May 2, 2018
Apropos of the defamation complaint filed by Stephanie Clifford a/k/a Stormy Daniels which we discussed here, an excellent read is the article @POTUS: Rethinking Presidential Immunity in the Time of Twitter by Professor Douglas McKenchnie (United States Air Force Academy; pictured) published in the University of Miami Law Review.
McKenchie's article, published in 2017, considers the President's use of Twitter. McKenchie argues that malicious defamation falls outside the “outer perimeter” of official presidential duties and thus presidential immunity is inapplicable.
This addresses a broader issue than whether a sitting president can be sued, but uses a number of doctrines - - - presidential immunity; immunity for executive branch officials; the constitutional implications of defamation; and the Fifth and Fourteenth Amendments’ prohibition on government action motivated by animus - - - to support its conclusion.
Worth a read.
In her complaint, Stephanie Clifford, a/k/a Stormy Daniels has sued Donald Trump in his individual capacity for defamation, based on his tweet responding to her allegations that she was threatened.
A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)! https://t.co/9Is7mHBFda— Donald J. Trump (@realDonaldTrump) April 18, 2018
The tweet was actually a "quote tweet" retweeting this reply to an earlier Trump tweet:
The one-count complaint avers that Trump is not only attacking the truthfulness of Clifford, but also accusing her of a crime: fabricating a crime and an assailant, both of which are crimes under New York law. The complaint alleges that Trump "made his statement either knowing it was false, had serious doubts about the truth of his statement, or made the statement with reckless disregard for its truth or falsity." The complaint avers that not only has Clifford's reputation been damaged, but that she is receiving threats since Trump's statement and has hired bodyguards to protect her.
Recall that in a separate lawsuit, Clifford has sued Trump's personal attorney Michael Cohen for defamation, raising the somewhat usual issues surrounding the First Amendment doctrine in defamation given that Stormy Daniels is a public figure and the matter is one of public concern.
However, the Clifford lawsuit against Trump while he is President also raises the specter of executive immunity. Recall that in Zervos v. Trump, a similar lawsuit for defamation against Trump filed in New York state court by Summer Zervos, the judge held that the lawsuit could proceed; the judge found that the rule in the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton subject to suit in federal court extended to state court.
One difference in the Clifford suit is that Trump made the allegedly defamatory statement while President; the statement in Zervos was made as a candidate (and the acts in Clinton v. Jones occurred before Bill Clinton became President).
Tuesday, March 20, 2018
In her opinion in Zervos v. Trump, New York County Supreme Court Justice Jennifer Schecter ruled that the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status.
Recall that Summer Zervos filed the law suit a few days before Trump was inaugurated. Recall also that one of the major issues was whether or not a sitting president was amenable to suit in state court: In other words, did the rule in the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to suit in federal court extend to state court?
Justice Schecter's first paragraph answers the question without hesitation, beginning with a citation to Clinton v. Jones and stating that the case left open the question of whether "concerns of federalism and comity compel a different conclusion for suits brought in state court," but adding "they do not." Her analysis is relatively succinct, beginning with a simple statement: "No one is above the law" and concluding that "In the end, there is absolutely no authority for dismissing or staying a civil action related purely to unofficial conduct because defendant is the President of the United States."
Justice Schecter also denied the motion to dismiss for failure to state a claim and thus discussed the defamation claim which obliquely raises First Amendment issues. (The first 8 pages of the 19 page opinion detail the allegations of the complaint.) The motion to dismiss had essentially argued that Mr. Trump's statements were mere hyperbole. Justice Schecter disagreed:
Defendant--the only person other than plaintiff who knows what happened between the two of them--repeatedly accused plaintiff of dishonesty not just in his opinion but as a matter of fact. He not only averred that plaintiff told "phony stories" and issued statements that were "totally false" and "fiction," he insisted that the events "never happened" and that the allegations were "100% false [and] made up.”
A reader or listener, cognizant that defendant knows exactly what transpired, could reasonably believe what defendant's statements convey: that plaintiff is contemptible because she "fabricated" events for personal gain. . . . . Defendant used "specific, easily understood language to communicate" that plaintiff lied to further her interests . . . His statements can be proven true or false, as they pertain to whether plaintiff made up allegations to pursue her own agenda. Most importantly, in their context, defendant's repeated statements--which were not made through op-ed pieces or letters to the editor but rather were delivered in speeches, debates and through Twitter, a preferred means of communication often used by defendant- -cannot be characterized simply as opinion, heated rhetoric, or hyperbole. That defendant's statements about plaintiff's veracity were made while he was campaigning to become President of the United States, does not make them any less actionable. . . .
Thus, it seems that the lawsuit against the President, now joined by a declaratory judgment suit by Stormy Daniels which we discussed here and since removed to federal, will proceed apace. Assuming, of course, that the President's lawyers do not attempt an interlocutory appeal.
image: Hans Makart, Allegory of the Law and Truth of Representation, circa 1881 via
Wednesday, March 7, 2018
Stephanie Clifford, aka Stormy Daniels, aka Peggy Peterson has filed a complaint in California state court seeking a declaratory judgment that a "Hush Agreement" she signed regarding a nondisclosure agreement is invalid. Her attorney posted access to a copy of the complaint and the underlying agreements:
Earlier today, we filed this complaint seeking a ct order voiding the alleged “hush” agreement between our client S. Clifford aka Stormy Daniels and Donald Trump. https://t.co/upa9u10MqR— Michael Avenatti (@MichaelAvenatti) March 7, 2018
The complaint seeking declaratory judgment again implicates the issue of whether Trump, as the current President of the United States, is immune, even temporarily, from suit. In Clinton v. Jones (1997), the United States unanimously held that then-President Clinton was not immune from a federal law suit for sexual harassment arising from events before he became President. Should the outcome be different if the lawsuit is in state rather than federal court? Recall that this same issue arises in Zervos v. Trump, a suit for defamation filed in New York state court. Recall also our discussion of an amicus brief by three law professors who submitted an amicus brief in Clinton v. Jones in support of a plaintiffs' right to sue the sitting President in federal court argue that the rule should apply to state court as well. The President's motion to dismiss or for a stay has not yet been decided. (Trump is also seeking dismissal on the merits of the defamation claim contending that the allegations are not actionable as defamation).
The fact that the President has engaged in numerous other lawsuits while President does tend to dilute any "distraction" claim under Clinton v. Jones.
Thursday, February 15, 2018
Former White House chief strategist Stephen Bannon once again tried to expand the scope of executive privilege in his testimony today before the House Intelligence Committee. This time, Bannon reportedly invoked the privilege in response to any question except 25 that were written for him by the White House. (His answer to each: "No.")
According to The Hill, the White House wrote a letter to the Committee on Wednesday evening explaining its view why executive privilege covers communications during Trump's transition--and not just communications during President Trump's presidency. As we explained, this is not the conventional understanding of the privilege. We'll post on the White House's reasoning if and when it becomes available.
Thursday, January 11, 2018
Recall the lawsuit by Summer Zervos against Donald Trump for defamation. It's filed in New York state court and Trump has argued that Clinton v. Jones, the 1997 case in which the United States Supreme Court held that President Clinton was not immune from being sued, should not apply to state court proceedings.
In an amicus brief filed in Zervos v. Trump, and available on ssrn, three law professors who submitted an amicus brief in Clinton v. Jones in support of a plaintiffs' right to sue the sitting President in federal court,now argue that the rule should apply to state court as well. The professors - - - Stephen Burbank, Richard Parker, and Lucas Powe, Jr. - - - argue that a President should be amenable to suit in state as well as federal court, with appropriate docket-management accommodations made in light of the demands on a President's time and attention.
At issue is footnote 13 of Clinton v. Jones which might be read to distinguish state court proceedings from the federal one involved in Clinton:
Because the Supremacy Clause makes federal law “the supreme Law of the Land,” Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are “faithfully executed,” Art. II, §3, may implicate concerns that are quite different from the interbranch separation of powers questions addressed here. Cf ., e.g. , Hancock v. Train , 426 U.S. 167, 178 -179 (1976); Mayo v. United States , 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed. 1988) (“[A]bsent explicit congressional consent no state may command federal officials . . . to take action in derogation of their . . . federal responsibilities”).
The amicus brief contends that the footnote is best read as limited to the problem of direct control of presidential activities by a state court. That, they argue, is not the Zervos suit, since Zervos' lawsuit has nothing to do with the president's duties. They conclude that the best reading of the Constitution, the requirements of federalism and the rule of law, and the Supreme Court's decision in Clinton v. Jones direct that state courts be permitted to entertain suits against sitting Presidents for conduct arising from their pre-Presidential conduct, just as federal courts can.
Judge Jennifer Schecter has yet to issue a ruling.
Sunday, April 2, 2017
In a Memorandum Opinion and Order, Judge David Hale ruled on a motion to dismiss the complaint in Nwanguma v. Trump which includes a count of incitement to riot by then-candidate Trump during a campaign event in Louisville, Kentucky on March 1, 2016. The complaint alleges that the candidate told the crowd “Get ’em out of here,” when the plaintiffs were "peacefully protesting" at a campaign rally. Allegedly as a result of the candidate's encouragement, three individual defendants pushed, shoved, and struck the three plaintiffs. The complaint contended that candidate Trump should be held vicariously liable for the tortious actions of the individual defendants; Judge Hale dismissed this count as not having sufficient allegations that the candidate (or his campaign) "had the right to control the other defendants’ actions." The complaint also contained a count regarding the candidate's negligence and failure to protect, which Judge Hale did not dismiss.
Most important from a constitutional standpoint, Judge Hale denied Trump's motion to dismiss the incitement to riot claim despite the defendant's argument that Trump's statement "Get ’em out of here” was protected by the First Amendment. As Judge Hale relates, under the landmark case of Brandenberg v. Ohio (1969), as well as the Sixth Circuit's en banc decision in Bible Believers v. Wayne County (2015), speech may not be “sanctioned as incitement to riot unless
(1) the speech explicitly or implicitly encouraged the use of violence or lawless action,
(2) the speaker intends that his speech will result in the use of violence or lawless action, and
(3) the imminent use of violence or lawless action is the likely result of his speech.”
Judge Hale analyzes each of these prongs in turn.
First, Judge Hale concludes that Trump's statement, “Get ’em out of here,” is phrased in the "imperative; it was an order, an instruction, a command." It is therefore unlike the protected speech in NAACP v. Claiborne Hardware Co. (1982) (“If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”); Hess v. Indiana (1973) (“We’ll take the fucking street again.”); or Watts v. United States (1969) (“If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”).
Second, Judge Hale concludes that the complaint states sufficient allegations of Trump's intent, although whether "he actually intended for violence to occur is beyond the scope of the Court’s inquiry at the motion-to-dismiss stage."
Third, Judge Hale rules that "the complaint adequately alleges that Trump’s statement was likely to result in violence—most obviously, by alleging that violence actually occurred as a result of the statement." Additionally, the complaint describes "a prior Trump rally at which a protestor was attacked."
The case is now on course to proceed.