Trump’s Lawyers Can Be Inconsistent. Liberals Can’t.

(Bloomberg Opinion) -- Lawyers are accustomed to dismissing the various arguments that Donald Trump has made in court over the years, or even laughing at them. His claim that he should be immune from lawsuits for his actions on Jan. 6 because he was exercising his official duties is a little different.

It needs to be considered seriously in the context of his impeachment, which depended on the view that his incitement of the mob was a “high crime and misdemeanor” — that is, an abuse of the office of the presidency. While it is not impossible to reconcile the belief that Trump abused his office on Jan. 6 with the proposition that he was acting privately, not in his official capacity, doing so isn’t simple.

The law governing a president’s immunity from suit for his official actions is straightforward on the surface. In a 1982 case, Nixon v. Fitzgerald, the Supreme Court held that a president enjoys “absolute immunity from damages liability predicated on his official acts,” whether he is in office or out of office.

The basic idea is that the president’s office is “unique” in that the president is the embodiment of the executive branch. If the judicial branch were able to control or constrain the way he performs his duties, it would undermine the separation of powers as well as his capacity to act.

The Fitzgerald precedent made it clear that this absolute official immunity wasn’t to be applied narrowly. It extended, the court said, to the “outer perimeter” of the president’s authority. In the 1997 Clinton v. Jones case, the justices unanimously reiterated this point even as they concluded that Bill Clinton could be sued by Paula Jones while he was in office for private conduct that occurred before he was president.

In the light of this precedent, Trump’s argument in the three Jan. 6 lawsuits is simply that the speech he made — and any related acts he took outside the public eye — were within the outer perimeter of his official duties. He was still the president of the United States, and he was speaking about matters of public significance and about the exercise of First Amendment rights by the crowd, he asserts. If he was speaking as president, Trump says, he can’t be sued for what he said.

Notice that there is a difference between this argument and what Trump’s lawyer said in defending him against impeachment. Then, his legal team emphasized that Trump himself had a First Amendment right to speak, just like any other citizen. His impeachment team wanted to de-emphasize the official nature of his actions.

His legal team in the new civil lawsuits wants to treat the official nature of his speech and conduct as determinative. There’s nothing unusual about offering inconsistent defenses. It’s common legal practice, even in a single case, not to mention two proceedings as different as an impeachment and a civil suit.

The challenge is much greater for those of us who thought the impeachment was valid but now would like to see Trump held liable in some way for his conduct. Unlike Trump, we should want to have a consistent view of whether his actions were official or not — since we care about getting the law right and applying it consistently.

The only plausible way I can see to reconcile impeachment with civil liability for Trump is to say that encouraging the crowd was a private act, not an official one — and that at the same time it was a high crime in that it abused the president’s office by exceeding his legitimate authority.

Logically, this formulation holds water. When the president violates his oath of office while in the course of his official duties, that’s an abuse of office that qualifies as impeachable. It is beyond the outer perimeter of his official duties because it breaks the bounds of office. Put more simply, the president isn’t acting in his official capacity when he abuses his office — he is acting outside it.

According to this view, Trump deserved to be impeached for abusing his office by inciting the crowd on Jan. 6. And precisely because his conduct violated his oath of office to take care that the laws be faithfully executed, he is subject to civil suit because he wasn’t acting within the scope of his official capacity.

The tricky aspect of this reconciliation is that anytime a president is sued for an act he took within his official capacity, the plaintiff is going to allege that the president acted wrongfully, and therefore acted outside his official capacity. Consider the situation where a presidential motorcade under the president’s direction negligently runs down a pedestrian. (Someone actually sued John F. Kennedy for a motorcade accident that took place during the 1960 campaign; the suit was settled out of court.) The plaintiff would argue that the president wasn’t acting within his official duties because his official duties didn’t include negligently running down pedestrians.

Or consider the allegation in the Nixon v. Fitzgerald case, namely that the president wrongfully fired a particular federal employee. That allegation could be framed as a claim that the president acted outside of his official responsibility. Yet the Supreme Court rejected the suit.

We don’t want a theory of presidential civil liability that opens the door for ordinary civil lawsuits against the president for allegedly wrongful conduct arising from his exercise of his office. Therefore we should be extremely careful before concluding that Trump was acting only in his personal capacity on Jan. 6.

His actions abused his office and therefore merited impeachment. But if a court concludes that they were official acts for purposes of civil liability, it won’t be the end of the rule of law.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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