Taking Down Trump 2.0 - Rule 8
One of Trump's biggest perils comes when he's forced to testify under oath. Could that happen again even though he's back in the White House? Why yes, in fact.
The eighth rule from the New York AG’s playbook in Taking Down Trump urges litigants and prosecutors to do whatever they can to get Donald Trump under oath, where he is inherently incapable of engaging in the tightrope-walking necessary to escape unscathed. He brags, he doubles down on previous problematic statements to avoid appearing wrong, he gets his ex-wives confused with his sexual assault victims — all in all, it’s not the best forum for him, shall we say.
Okay, you might say, but how is he going to be under oath anytime soon when he’s in the White House again, and the Supreme Court says he’s basically a king?
Simple. Even SCOTUS’s deeply unconstitutional immunity ruling — and the deeply misguided DOJ memoranda on which they based the ruling in part — all pertain to criminal prosecutions only.
Even a sitting president can be sued in a civil case, according to a unanimous decision from the Supreme Court in 1997, Clinton v. Jones. There, the question was whether Paula Jones could maintain her civil suit against Bill Clinton for sexual harassment, when Clinton tried to get the matter stayed until after his presidency. The Court ruled 9-0 that presidents can be sued for “unofficial” acts and that Jones’s case could thus go forward — ultimately resulting in the revelations of his relationship with Monica Lewinsky and his impeachment in the House.1
What does this mean for Trump? Jones’s case was not even filed until 1994, after Clinton took office in 1993. So new civil suits can be filed against Trump, based on unofficial acts outside the scope of his office, and he would not be immune from them or able to delay them until after his presidency.
But there is a different legal question that is, for now, unanswered. Jones’s suit was filed during Clinton’s presidency — but the matters raised by the suit occurred before his presidency (back in 1991). Clinton v. Jones did not reach the question of whether a civil suit against a sitting president can address matters that occur during his presidency.
Trump could thus definitely be sued for unofficial acts that occurred during the years he was not in the White House — and he could potentially be sued for unofficial acts that occurred during the years he was in the White House.
There is also, of course, the possibility that the present-day Supreme Court could be faced with this question again and overturn Clinton v. Jones — even though that 9-0 unanimous decision included a vote from none other than Clarence Thomas. No one should underestimate Thomas’s ability to be a craven opportunist, so he could easily do a 180 and decide that, at least when it comes to presidents whose names rhyme with Ronald Rump, there is total immunity from all civil suits (and other justices could follow suit). But for now, the law is that Trump is not invincible here.
Hence if someone were to sue Trump for defamation, sexual misconduct, fraud or other misrepresentations, breach of contract — or any number of other claims that would make any Greatest Hits playlist of Trump lawsuits — then there is a strong possibility that Trump might find himself compelled to testify. And just as in the E. Jean Carroll case or the New York AG civil fraud case, Trump would then face a lose-lose dilemma: testify and risk damning admissions, or decline to testify (or plead the Fifth) and have the court assume Trump has something to hide.2
This could also arise in other circumstances that should not be overlooked. A president can be subpoenaed to testify in a case where he is not a defendant. And he can, in effect, be sued for injunctive relief — to stop the administration from doing something — even when it relates to official acts.3
The Supreme Court may have handed Trump his literal get-out-of-jail-free card, with a little help from DOJ and Manhattan DA Alvin Bragg, but he is far from out of the woods of legal jeopardy just because he is once again ensconced in the White House. Those woods may yet come back to shadow Trump, just as Birnam Wood came to Dunsinane, bringing the fall of Macbeth.
Hubris is the real enemy for Trump, after all. Testimony merely illuminates it.
As for “official” acts, the Court had previously ruled that presidents are, in fact, immune from civil liability, in the case of Nixon v. Fitzgerald in 1982.
In a criminal case, the jury or judge may not draw a negative inference if the defendant declines to testify, as it his Fifth Amendment right to do so. In a civil case, the jury or judge may draw such a negative inference.
This is a whole other can of worms, which will likely merit a closer look once more of the court challenges against the administration progress.
And his record of delay, delay, delay will still be playing. But everything needs to be attempted. The more the better.
Wouldn't it be grand if all former presidents sued him for destroying the Office? Or maybe we can get behind Jack Smith to find something. He's a man I respect!