Why Trump wants Kentucky lawyers to define executive privilege: Jonathan Turley

Since taking office, the Trump administration has presented a series of difficult ethical and constitutional questions, from nepotism to emoluments to product endorsements. The most significant legal issue may be determined in a small courtroom in Louisville, where President Trump is being sued over his alleged role in an assault on protesters. Trump is arguing that his office gives him immunity from such tort actions during his presidency. He is wrong, but (regardless of the outcome) the case could create new law for future presidents.

The case was brought by three protesters who allege they were assaulted at a March 2016 campaign rally in Louisville. After they were roughly tossed from the rally, Trump told his supporters, “Get 'em out of here!” They are seeking damages from not just the two Trump supporters who allegedly manhandled them but also Trump himself as instigating the assault.

Trump’s lawyers have raised a series of defenses from free speech to presidential immunity. The person bringing these potentially precedent-setting arguments is neither White House counsel Don McGahn nor Attorney General Jeff Sessions. Rather, it is Louisville lawyer R. Kent Westberry representing “Donald J. Trump for President, Inc., and Donald J. Trump, Individually.” He is a partner at Landrum & Shouse, LLP, which bills itself as “the fourth largest law firm in Kentucky.” As good as the firm may be, should the outer limits of executive authority really be established by local counsel in a Kentucky tort case?

Adding to this concern is the fact that Trump is wrong on the constitutional claim. His lawyers are arguing that, despite the fact the alleged injury occurred before he was president and has nothing to do with the exercise of executive power, no citizen may sue the president in state court while he holds his office. It would be a sweeping and dangerous precedent if it were accepted. Fortunately, it is likely to fail.

There have only been four sitting presidents who have faced civil lawsuits against them as individuals in history. Trump has already shattered that record by dragging a long chain of lawsuits (as many as 75) behind him to the Oval Office.

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Teddy Roosevelt was sued over his actions as head of the New York City Police Department by officer John Hurley, who challenged his dismissal. This action was based in Roosevelt's official actions in a prior office and was later dismissed without an opinion.

Harry Truman, while still a senator from Missouri, was sued by an attorney, Roy DeVault, who was a resident in an insane asylum. Again, it was frivolous and dismissed.

A closer, analogous case involved John Kennedy, who was sued over a car accident during his 1960 presidential campaign and sued while he was still a candidate. While Kennedy’s lawyers tried to rely on his presidential office to dismiss the case, the court rejected those claims. The case was then settled.

Of course, the final example is the most relevant: Bill Clinton. Paula Jones sued Clinton for his conduct while he was Arkansas governor, claiming sexual harassment at a conference being held at a Little Rock hotel. Notably, Clinton sought to delay the lawsuit until after his term as president, but that claim was rejected. In a unanimous decision, the Supreme Court ruled in 1997 that a sitting president has no immunity from civil litigation for alleged conduct before taking office. Clinton also relied on a private law firm, and his loss caused lasting damage for his successors.

Despite the obvious conflict with Trump's position, he raised the following affirmative defense in his answer: “Mr. Trump is immune from proceedings pursuant to Clinton v. Jones.”

While Clinton v. Jones involved a federal rather than a state court, citing it for presidential immunity is like citing Brown v. Board of Education for school segregation.

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The choice for any presidential litigant is between maximizing defenses on personal liability vs. minimizing threats to his official office. A president can instruct counsel not to claim presidential immunities while expressly reserving such questions for the future.

What is most troubling is that such a position would not materially harm Trump in this case. The primary defense is factual, not constitutional. While admitting that he yelled, “Get them out of here,” the court has been told that “the Trump defendants deny Mr. Trump’s statement was directed at the crowd.” Though Trump may legitimately claim that he was speaking to the security staff rather than his supporters, counsel for defendant Alvin Bamberger, a Trump supporter, insists that he acted "in response to — and inspired by — Trump and/or the Trump campaign’s urging to remove the protesters.”

With dozens of such cases following Trump, the concern is that tactical rather than constitutional calculations will determine news tests for presidential privileges and immunities. Whether it is an assault case or some slip-and-fall, this is not how presidential precedent should be made.

If a case threatens presidential powers or privileges, the White House counsel or Justice Department can intervene in the case to protect the office.

Otherwise, Trump and counsel should keep the presidency out of it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY's Board of Contributors. Follow him on Twitter @JonathanTurley.

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