Is Trump responsible for violent rallies? Law says probably not

Political rallies in our country are becoming more dangerous, with more assaults, fights, weapons and sometimes, less police. Is the president responsible? And who is safe? Trump affects the ways reporters and demonstrators are treated at rallies. He has made many comments that people properly regard as incendiary, suggesting that people can use their Second Amendment rights to affect what Hillary Clinton could do, that he’d defend his people if they took a swing at his opponents or punched them out at rallies, as well as showing support for crowds chanting “lock her up.” More recently, he equated the violence of white supremacists with counter-demonstrators, whose efforts are to keep neo-Nazis in check. Presidential glorification of violence has profound implications to Americans and their ability to keep the peace in public.

So, legally, what are the consequences? First, the impact on journalists doesn’t change the legal rules significantly. Courts regularly insist that the media should not be singled out for worse treatment than the general public and need not be given any advantages. If a reporter is assaulted, his or her media status will probably not be relevant, except to bolster evidence of what the reporter was doing and why others acted against him or her. Second, the president can be sued in the civil courts on private claims that do not involve official responsibilities. But suits arising from official behavior are treated in special ways and that special treatment creates the major issues.

{mosads}If the perpetrators are members of the public and not part of the chain of command with the president, the major question is whether and how the president might be culpable. Despite Trump’s language, courts don’t ask whether statements are incendiary, or have a bad tendency. That test was replaced by the “clear and present danger” test in 1919.

The modern test for punishable speech was stated in the Supreme Court’s decision in Brandenburg v. Ohio: “Constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action.” Advocacy, in other words, cannot be prohibited unless it meets a four-part test, the so-called Brandenburg quartet of advocacy, incitement, imminence and intent. Only if the speaker’s language satisfies all four parts of the Brandenburg test can the language be punished or forbidden.

At the very least Trump’s advocacy and intentions will always be questionable. Trump habitually speaks in double entendres, as in the references to his remarks at the beginning of this post. But courts are literalists which avoid trapping innocent people in the extensions of their language and avoid allowing authorities to interpret vague language in partisan ways. Trump likes to say things could happen or that he understands a crowd’s reactions or that others are equally guilty, but none of that is literally directing violence, even while seeming to condone it.

The situation would be very different if Trump had some connection to the perpetrators of violence. In that circumstance, he might be liable. So for example, if there were prearranged signals to come from the president or there had been prior discussions about what people should do that were actually carried out, the president could well be found liable, especially in a civil suit.

If a federal official in the chain of command interpreted Trump’s comments as a direction, the issue would become whether he or any person or agency is responsible for the behavior of their subordinates. That’s ordinary in traffic accidents. If someone has an accident while on company or government business, the company or agency is responsible. But with assault or shootings, courts won’t hold supervisors or agencies responsible without explicit government policy.

Responsibility, either of an individual or an agency, for the behavior of subordinates, has to be premised on an order that is unconstitutional or otherwise illegal. The officer will still be immune unless the illegality was previously well established. To the extent that Trump is breaking new ground, the courts have not had the opportunity to establish presidential responsibility.

In a recent high profile case against a member of President Bush’s Cabinet and the head of the FBI, the court added that cases will not be allowed to proceed unless the pleadings are factually detailed and “plausible” in light of “judicial experience and common sense.” If plaintiffs survive those hurdles on motions before trial, public officials may still be able to prove that they neither knew nor should have known that their behavior was illegal.

The courts generally have also rejected positive obligations of public officials to protect people in danger. Thus, it is unlikely that the Charlottesville police can be successfully sued for their failure to have prevented some of the violence. It is even more unlikely that Trump or other federal officials could be sued on that ground because keeping order is generally a state or local responsibility.

It is highly unlikely that President Trump would be held responsible. The joker in this kind of case is in the discovery of facts not yet public. One would have had to deny any possibility of liability or impeachment of President Clinton based on the public facts at the beginning of the investigation. But his understandable unwillingness to admit the sexual episode with Monica Lewinsky resulted in his impeachment for lying under oath.

One often confronts unpredictable results in high-profile litigation as the result of discovery or efforts to block investigations. In an era when litigation is used as an engine of politics and cases are brought that predictably have to be dismissed purely for the opportunity to force the parties to give testimony under oath, it is impossible to predict what may happen either to Trump or the judiciary if they should both steer on a collision course.

Stephen Gottlieb is the Jay and Ruth Caplan distinguished professor at Albany Law School and an expert in constitutional law. He has served on the board of the New York Civil Liberties Union and the New York advisory committee to the U.S. Civil Rights Commission. His latest book is “Unfit for Democracy: The Roberts Court and The Breakdown of American Politics.”

The views expressed by contributors are their own and are not the views of The Hill.