Later On

A blog written for those whose interests more or less match mine.

President Trump should settle the “inciting to violence” lawsuit, explains Lawfare article

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Paul Rosenzweig has an interesting post in Lawfare:

In the normal course of Lawfare, a civil lawsuit in Kentucky would not seem to implicate national security.  But when one of the defendants is the President of the United States, well …. I suppose everything related to him is of potential national security interest.  Hence, the need to at least consider the implications of this stunning decision from a Federal district court in Kentucky, refusing to dismiss a lawsuit against President Trump.  The suit alleges that protesters at a Trump rally were assaulted and that then-Candidate Trump’s repeated exhortation to “get ’em out of here” was a direct and proximate cause of the violence.  In other words, the President is accused of inciting violence against his political opponents.  Some thoughts:

First, we should not read too much factual conclusion into this decision.  It was the denial of a motion to dismiss on the pleadings and in that posture the judge was bound to assume all the alleged facts were true and to draw every reasonable inference in favor of the plaintiffs.  It remains to be determined at a later date whether, for example, “get ’em out of here” was actually an exhortation to violence, or perhaps simply a direction to staff to remove disrupting individuals.  If I were Trump’s attorney I would certainly be making the latter argument.  Which interpretation is better founded remains to be seen as facts are further developed.

Second, speaking of factual development, I can see no way in which President Trump avoids a deposition in this matter.  We know from Clinton v. Jones that Presidents are not immune from civil discovery during their presidency.  And I have to think that Trump’s state of mind and intention are fair game for inquiry.  And we know, from past experience, that it is often enticing for a President to “gild the lily” in his testimony — which carries with it, its own risk of accusations of perjury.

Third, context is everything.  Though President Trump will argue that his words were not an incitement to violence, that argument may be rebutted by evidence relating to prior bad acts (known as 404(b) evidence).  I would expect plaintiffs to contend that . . .

Continue reading.

Written by LeisureGuy

2 April 2017 at 9:12 pm

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