Immunity-No-Immunity, by Tara and Charles Carreon

Immunity-No-Immunity, by Tara and Charles Carreon

Postby admin » Thu Feb 24, 2022 9:21 am

Immunity-No-Immunity
by Tara and Charles Carreon
2/24/22

Apropos of Memorandum Opinion and Order, Bennie Thompson, et al., v. Donald J. Trump, USDC for the District of Columbia, by Judge Amit P. Mehta, February 18, 2022

To deny a President immunity from civil damages is no small step. The court well understands the gravity of its decision. But the alleged facts of this case are without precedent, and the court believes that its decision is consistent with the purposes behind such immunity. Subjecting a president to potential liability for the acts described in the Complaints will not “diver[t] . . . the President’s attention during the decisionmaking process” with “needless worry as to the possibility of damages actions stemming from any particular official decision.” Clinton, 520 U.S. at 694 n.19. After all, the President’s actions here do not relate to his duties of faithfully executing the laws, conducting foreign affairs, commanding the armed forces, or managing the Executive Branch. They entirely concern his efforts to remain in office for a second term. These are unofficial acts, so the separation-of-powers concerns that justify the President’s broad immunity are not present here. “If the Judiciary may severely burden the Executive Branch by reviewing the legality of the President’s official conduct, and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct.” Id. at 705. The court therefore may “determine the legality” of President Trump’s acts that are alleged to have given rise to Plaintiffs’ injuries on January 6th.

iv. Section 1986 claim

The foregoing comes with one important caveat: President Trump is immune as to Swalwell’s failure-to-act claim under § 1986. That provision states:

42 U.S.C. § 1986. The statutory provision is unique. It requires persons with knowledge of a conspiracy proscribed in § 1985 and with the means to prevent the conspiracy to take affirmative actions to do so. A person who refuses or neglects to exercise such power is liable for damages to those persons whose injuries could have been prevented.

Swalwell alone asserts a claim under § 1986 against President Trump. He alleges that President Trump knew about the alleged § 1985 conspiracy, had the power to prevent it, and failed to exercise “reasonable diligence” to avoid harm. Specifically, he asserts that “when it was clear that rioters had stormed the Capitol, and Congress was unable to certify the results of the Electoral College vote, [President Trump] had the power to stop the rioters but refused and, instead, encouraged them.” Swalwell Compl. ¶ 190. That allegation, it would seem, makes out a § 1986 claim against the President.

But the President cannot be held liable for his failure to exercise his presidential powers, at least under § 1986. Just as he is immune for acts that fall within the outer perimeter of his official responsibilities, so too must he be immune for alleged failures to exercise that official responsibility. Were it otherwise, Presidents routinely would be subject to suit for not doing more or for not acting at all. Absolute immunity would be gutted if a plaintiff could avoid it simply by alleging a failure to exercise presidential power. The court therefore dismisses Swalwell’s § 1986 claim.

-- Memorandum Opinion and Order, Bennie Thompson, et al., v. Donald J. Trump, USDC for the District of Columbia, by Judge Amit P. Mehta, February 18, 2022


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No Immunity for This Tort

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Total Immunity for This Tort

In deciding whether Trump's culpable inaction falls within or outside of the scope of Presidential duties, first, answer the question, "What would you have him do in order to NOT be derelict in his duties?"

The answer would be, "Trump would direct the mob to disperse and stop attacking the Capitol."

In directing the mob to disperse, Trump would not be exercising any Presidential power of office. Rather, he would be exercising sway over a mob he incited for the personal purpose of unlawfully perpetuating his stay in office.

An entirely different position would be presented if a gang of rowdy Secret Service agents were rampaging through Georgetown while Trump sat in his limousine and observed them engaging in mayhem. Since he could exercise his official authority to stop the Secret Service rampage, failure to do so would be a dereliction of duty, and under the Judge's analysis therefore immune from liability. Trump can sway a mob in or out of office; accordingly, there is no need to preserve his non-existent Presidential prerogative to put the mob back on the chain by immunizing, and therefore rewarding, his failure to do so.

Immunizing failure to act as distinct from acting wrongfully, is as ridiculous as saying it's not an assault to hit someone with your left hand, only with your right.
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