Given Trump’s propensity for filing frivolous lawsuits, this could be anything; but what it is is an appeal of the decision handed down in February of this year where he was told he could face civil liability for his actions on January 6. The Orange Lord believes his actions should be above the law; and thus, here we are.
The filing is 48 pages in .pdf format, with the first 14 being all the information on who the parties are, along with the table of contents. So we don’t get down to the meat and potatoes of this until page 15 out of 48. Thankfully, that cuts my reading amount down considerably! You know what that means? More time for snark!
And, my, is there much to snark about…
Beginning on Page 1 (that’s page 15 of the .pdf) under the heading “Preliminary Statement,” we find this gem in the opening paragraph:
This appeal requires the adjudication of a simple but important constitutional issue regarding the separation of powers: whether the scope of presidential absolute immunity continues to reach the outer perimeters of presidential responsibilities or whether the immunity can be undercut if the presidential act in question is unpopular among the judiciary.James Blassingame and Sidney Hemby v Donald J. Trump, July 27, 2022, page 15
So to begin his arguments, he’s alleging that his political speech at the Ellipse that day is “unpopular among the judiciary” and that’s why he’s in this current mess. Talk about an unwillingness to accept personal responsibility for his own actions–but that’s our Trumpy! Don’t worry, though; he’s just warming up!
This question has already been answered by the Supreme Court, which held that the immunity is rooted in constitutional separation of powers, and it is especially important to the President because he deals with matters that are controversial and arouse intense feelings.James Blassingame and Sidney Hemby v Donald J. Trump, July 27, 2022, pages 15-16
So a president should enjoy the right to make controversial statements which “arouse intense feelings” which then leads to an insurrection? Seriously?
I dunno, guys. This doesn’t sound like a really well-thought out legal argument…
The underlying factual dispute regarding the January 6, 2021, violence at the Capitol arouses the passions of many Americans, including members of the bench and bar.James Blassingame and Sildney Hemby v Donald J. Trump, July 27, 2022, page 16
According to my Trump Legal Team-to-English Dictionary, this means: since Trump and the RW media had stirred up his base with the lie of massive election fraud that even some RW judges and lawyers (Rudy Giuliani, Sidney Powell, Lin Wood, Jenna Ellis, Mark Levin, and a host of other partisan hacks) believe it (or at least claim to believe), he should get a free pass on that whole inciting an insurrection thing.
Under the heading “Statement of the Case” we find this gem:
Indeed, agree or disagree with him, President Trump is known for passionate and patriotic discourse that resonated with tens of millions of Americans who felt forgotten by the Washington D.C. political establishment. His discourse, however, is seen as highly controversial among his political rivals.James Blassingame and Sildney Hemby v Donald J. Trump, July 27, 2022, page 17
His speech was so “passionate and patriotic” that it ended with thousands of people–some of whom were armed–descending on the Capitol to attack it and prevent or delay Congress’s certification of the 2020 election. Perhaps we should ask Jan 6, 2020 Josh Hawley how “patriotic” their actions were. But it would’ve been difficult to do while he was running away from the onslaught.
On January 6, 2021, President Trump gave a speech at the Ellipse near the South Lawn of the White House. He sought election integrity and encouraged his supporters to “peacefully and patriotically make their voices heard” to Congress. The actions of rioters do not strip President Trump of immunity. [emphasis mine]Trump Sues for Unlimited Immunity, page 18
Trump is now throwing his loyal supporters under the bus. LMAO.
He might’ve told them to “peacefully and patriotically make their voices heard to Congress,” but he also told them “…if you don’t fight like hell, you’re not going to have a country anymore.” and “…we won this election, and we won it by a landslide…” and “…you’ll never take back our country with weakness.” And finally the call to action, “We’re gonna walk down, and I’ll be there with you. We’re gonna walk down to the Capitol… So let’s walk down Pennsylvania Avenue.” The violent rhetoric far outweighed the instruction for them to be peaceful.
Here’s the entire speech, just so you can see how his rhetoric builds throughout to the call to action at the end, as discussed in the linked video above.
To sum up, then, Trump’s attorneys glossed over all the violent rhetoric of the speech to pull out one teeny-tiny quote urging them to be peaceful, and then allege that any violence is on protesters because Trump totally didn’t send them to do what they did.
With threadbare allegations, the plaintiffs are trying to establish liability because of the manner in which others interpretated President Trump’s tweet about the rally on January 6, alleging that it was “understood by many of his supporters as a literal call to arms.”Trump’s Latest LOLsuit, pages 18-19
Interpretated? Clearly, this latest group of Trump attorneys weren’t English majors before they headed for law school…
And, yeah, there’s precious little evidence to support the allegation that Trump’s fans understood his words “as a literal call to arms.”
On page 21 of the .pdf, we find this:
This decision is contrary to clear Supreme Court precedent. In Nixon v. Fitzgerald, the Court held that a President is wholly immune from civil suit for actions taken within the outer perimeter of his official functions and that probing the motives of a President’s actions is intrusive and forbidden.Trump’s Latest LOLsuit, page 21
So inciting his followers to a riot is “within the outer perimeter of his official functions”? And that makes it all protected? IOW, a president has the powers of a king, and nobody can say “boo!” about it; neither Congress nor the courts have the right to hold him accountable, nor do those he used and betrayed.
Page 23 of the .pdf (9 of the filing):
…Because “[c]ognizance of this personal vulnerability frequently could distract a President from [his public] duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve,”…the President has “absolute  [sic] immunity from damages liability.”Trump’s Latest LOLsuit, page 23
Making a speech intended to rile up his base and prepare them for the “wild” time he called them to D.C. for isn’t part of any president’s public duties and falls well outside the “outer perimeter of his official functions.” Part of a president’s public duties is to ensure a smooth and peaceful transition of power from one administration to the next. Donald Trump was attempting to prevent that transition of power; thus, he was acting well outside the scope of his public duties.
The scope of this absolute immunity is vast.Trump’s Latest LOLsuit, page 23
Not that vast, dude.
Unfortunately, the district court then misconstrued two critical cases on presidential immunity. First, it held that even though President Trump’s communications were on matters of public concern, that “d[id] not answer the question at hand: Were President Trump’s words in this case uttered in performance of official acts, or were his words expressed in some other, unofficial capacity?”… Any test that would allow the judiciary to dissect presidential speech on matters of public concern so as to determine whether the speech is “official”–especially when the matter at issue involves government action, such as the certification of electors by Congress–would necessarily run afoul of this unambiguous rule.Trump’s Latest LOLsuit, pages 25-26
He had already exhausted every legal avenue to overturn the election results; by Jan. 6th it was too late to prevent Biden being named the winner. Yet Trump didn’t allow that trivial point to stop him from sending his mob to do his bidding and prevent the peaceful transfer of power. There is nothing ambiguous about what Trump tried to do that day and that it fell far outside any kind of “official public speech” that might reasonably be protected by immunity.
They spend a lot of time referring to Nixon v. Fitzgerald, but, frankly, there is no precedent which covers the actions of a POTUS who sends his mob to attack the Capitol in order to prevent the peaceful transfer of power. So the district court falling in line with the dissent in that case is understandable and, in my very humble, non-trained legal opinion, correct. What Trump did isn’t at all comparable to what Nixon did; it’s far worse.
On pages 34-36 of the .pdf his attorneys bring President Biden into all this, referring to Biden’s public statements regarding abortion. I’m going to include all of it, just so you see it for yourselves, rather than rely on my synopsis…
President Biden has recently waded into one of the most hotly contested political issues in our country–abortion and the Supreme Court decision in Dobbs. In his remarks after the leak of the draft opinion, President Biden said it looked like a “radical decision and hoped it would not garner the necessary votes, which would require justices to change their positions.2 In the weeks that followed, anti-abortion protesters put some of the justices under de facto siege, pressuring them to do just that. Several had to flee their homes for safe houses. President Biden did not direct anyone in his administration to condemn the protests outside the private homes of these federal judges, even though such protests are prohibited by law… [the ellipses here is to note the removal of the case citation] One zealot even travelled to the home of Justice Kavanaugh and his family, intending to assassinate the justice.
President Biden was not deterred by this lawlessness. Instead, once the opinion was released, President Biden continued his divisive rhetoric about the opinion: “This decision is the culmination of a deliberate effort over decades to upset the balance of our law. It’s realization of an extreme ideology and a tragic error by the Supreme Court.3 Opining about Supreme Court decisions is not a constitutional function of the presidency. Yet, curtailing the President’s ability to freely discuss court decisions by stripping him of his immunity in such instances would be terribly damaging to the Executive Branch.Trump’s Latest LOLsuit, pages 34-36
Okay… it’s funny how President Biden commenting on a Supreme Court decision falls outside the “constitutional function of the presidency” (at least according to Trump’s attorneys), but Trump whipping up his mob into a frenzy was at the “outer perimeter of his official functions.”
I can’t even…
You can find my posts here and here regarding Roe…
I was going to end at this point, even though there’s more of this LOLsuit, but I kept on skimming and found this, on page 40, under the heading “There is a limiting principle that guards against abuse: Impeachment.”:
As the Fitzgerald Court admitted, the immunity of the President is sweeping, The dissent in that case, as well as the court below in this case, might chafe that the President seems unassailable in the civil context, but “[t]here remains the constitutional remedy of impeachment.”4Trump’s Latest LOLsuit, page 40
Yeah, by rights, Trump should’ve been removed after the first impeachment, and certainly barred from holding any future office after the second; but he wasn’t, because the system is broken. It relies on the decency–and, dare I say it?–patriotism of our elected officials. (“Patriotism” in that they demonstrate a willingness to put the good of the country before their own petty concerns of reelection.) The GTP (Grand Theocratic Party) failed miserably in that regard and showed how weak our guardrails are when it comes to removing a dangerous tyrant from office.
Trump’s attorneys have a response to that:
Of course, a Democratic-controlled House of Representatives already brought impeachment charges against President Trump for allegedly inciting an insurrection on January 6, 2021. Their effort failed, and President Trump was acquitted. These further lawsuits are an attempt to thwart that acquittal, and it is just this type of harassment that presidential immunity is meant to foreclose.Trump’s Latest LOLsuit, pages 40-41
Trump wasn’t acquitted; he simply wasn’t removed from office, because republicans in the Senate refused to do their damned jobs, and, instead chose to be partisan.
Just remember, this is how elected republicans in Congress reacted when Trump’s people started illegally entering the Capitol on Jan 6th:
Thus ends this edition of Snark Attack! (I failed to get through the entire filing, so if there’s anything stupid in the final 7 pages, let me know!) This is an open thread, so feel free to discuss whatever you like in the comments below. Stay snarky, my Blender peeps!
And don’t forget I’m going to be doing my own film noir programming for the month of August!