How long will Trump remain immune?

The mobster John Gotti was known as the “Teflon Don” because he was acquitted so many times of racketeering charges. No one could touch him, until they did. He spent the rest of his life in jail.

President Trump may be the “Teflon Celebrity.” He went bankrupt six times in Atlantic City and emerged unscathed, while his creditors were left twisting. Analyzing the evidence of obstruction of justice in the Russia investigation, Attorney General William Barr ruled Trump immune from prosecution. The Supreme Court ultimately ruled Trump not immune from a state grand jury subpoena, issued by New York District Attorney Cyrus Vance, but delayed its ruling until Trump had all but left office. So far, Trump has been immune, but he may not remain so for long.   

Rep. Eric Swalwell (D-Calif.) brought a multi-million-dollar civil action against Trump, under the Ku Klux Klan Act, arising out of the havoc the mobs of Trump supporters wreaked at the Capitol on Jan. 6.

Trump, now out of office, wants to dismiss the suit on grounds of “absolute” presidential immunity. He argued in a D.C. federal court the other day that he was conducting official presidential business on Jan. 6. 

“It is well recognized that rousing and controversial speeches are a key function of the presidency,” a lawyer representing Trump said. He also contended that Trump’s “Big Lie” claims about the election are protected by the First Amendment. But the First Amendment shouldn’t protect Trump since it was designed to protect the people from the government, not the other way round. 

Trump maintained that he was entitled to lobby for the appointment and certification of electors, despite the woeful absence of any evidence of fraud that would have turned around the result. His arguments omitted mention that he could have had no conceivable good faith belief in the truth of his repeated assertion that he had won the election. 

Trump’s lawyers even went so far as to argue that “The Senate acquitted former President Trump.” Some Republicans, including Senate Minority Leader Mitch McConnell (R-Ky.), argued that the courts were a more appropriate arena to hold Trump accountable for his conduct. So where may he be held accountable? So far no one knows for sure, as the ping-pong match continues.

It is trite law that a president is immune from civil liability arising out of his “official acts” as president. And this immunity extends to the time after he has left office. In Nixon v. Fitzgerald, decided in 1982, a government whistleblower in the Air Force sued President Nixon after he left office for having him fired for testifying before Congress. The court acknowledged that if this were a personal act, Nixon would not have been immune. But in a 5-4 decision, it ruled that Nixon acted within his official duties when he fired Fitzgerald as part of a program to clean up Fitzgerald’s agency. Hence, he had an absolute immunity from civil damage liability, which extended to all acts within the “outer perimeter of his duties of office.”

Trump’s trying to stay in office when there is no good faith basis for staying in office is, one would think, a personal act, beyond the “outer perimeter of his duties in office.”

In rejecting Trump’s claims of blanket immunity, when Vance subpoenaed his pre-presidential tax returns, Trump also claimed he was immune. Chief Justice Roberts wrote for the Court: “No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.” 

In short, is the president immune from civil liability for stoking the flames of insurrection? The judges are out on this one.

James D. Zirin, a former federal prosecutor, is the author of the 2019 book, “Plaintiff in Chief-A Portrait of Donald Trump in 3500 Lawsuits.”