Sunday, February 20, 2022

Civil Liability and Insurrection

Gerard N. Magliocca

On Friday a Federal District Court rejected Donald Trump's motion to dismiss a civil lawsuit seeking to hold him liable for injuries resulting from the January 6th violence. A central issue in the case is whether Trump is entitled to official immunity from civil liability under Nixon v. Fitzgerald. The Court held that Trump's speech and acts, viewed in their totality, were unofficial and thus fell outside the shield of Nixon.

I am unsure if this rationale will stand up on appeal, as Nixon was pretty emphatic in stating that official presidential immunity should be construed broadly. In a footnote, though, the District Court pointed out a narrower justification for holding that Nixon should not apply. Citing Joseph Story's Commentaries, the Court quoted Justice Story's comment that a federal judge who would "countenance, or aid insurgents in a meditated conspiracy or insurrection against the government" was not acting in an official capacity. (Story was discussing impeachment rather than civil liability, but his point was that a judge could be impeached and removed for unofficial wrongs like aiding an insurrection.)

The suggestion, then, is that engaging in insurrection cannot be an official act. And you could draw on Section Three of the Fourteenth Amendment to support that point, as that provision bars insurrectionist officials or former officials from ever exercising official power again. Of course, you can understand why the District Court did not adopt this line of reasoning. Holding that Trump engaged in insurrection would raise grave doubts about his eligibility to run again and was not directly at issue in the civil lawsuit.

If the Supreme Court takes this case, however, they can use the civil suit as a vehicle to address whether Trump engaged in insurrection. The Court needs to resolve that question as soon as possible to ensure an orderly 2024 presidential election, and reviewing this case on appeal may well be the quickest route.


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