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Donald Trump is trotting out the big armor in a lawsuit that contends he’s impermissibly benefiting financially from being president of the United States. On Tuesday, Trump claimed absolute immunity in a case brought by the attorneys general in Maryland and the District of Columbia, who allege he’s violating the emoluments clause of the U.S. Constitution.
The complaint contends that he has received millions of dollars in payments from foreign governments and their agents. Although the suit mentions money from foreign versions of The Apprentice, what’s primarily at issue is the benefits he’s been receiving from hotels and other local establishments.
In March, a judge ruled that plaintiffs have standing to challenge the involvement of Trump with respect to the Trump International Hotel in Washington, D.C. and rejected a motion to dismiss.
Now, Trump is coming forward not in his official capacity, but in his personal capacity, and bringing a new motion to dismiss. In doing so, he cites a recent Supreme Court decision — Jesner v. Arab Bank, which held that foreign corporations couldn’t be sued in domestic courts for human rights violations — in support of the proposition that the legislative branch, and not courts, should create new rights to sue. In so doing Trump also foreshadows his response to present and future legal problems including the recent defamation lawsuit brought by Stormy Daniels.
Trump’s attorneys offer several reasons why he should be allowed out of this emoluments case.
First, even though Trump is the leader of the nation, when it comes to claims against him in an individual capacity, it’s argued that a Maryland federal court holds no personal jurisdiction over the president.
“The Amended Complaint contains no allegations that the President has had contacts with Maryland in his personal capacity, much less any that could satisfy Maryland’s long-arm statute,” states the motion to dismiss. “Nowhere in the Amended Complaint do Plaintiffs allege the President personally ‘[t]ransacts any business or performs any character of work or services,’ ‘[c]ontracts to supply goods, food, services, or manufactured products,’ ‘regularly does or solicits business,’ or ‘[c]ontracts to insure or act as a surety’ in Maryland.”
Next, it’s argued that a proper claim hasn’t been brought.
His attorneys point to Bivens v. Six Unknown Named Agents, a 1972 Supreme Court opinion that authorized a lawsuit against federal agents who violated the plaintiff’s Fourth Amendment rights against unlawful searches and seizures. This particular case opened up the possibility of collecting damages against government officials who usurp constitutionally protected rights, but Trump argues that Bivens‘ actions are limited and can’t possibly apply to the type of injunctive relief that Maryland and the District of Columbia seek in their emoluments lawsuit.
And if the judge doesn’t dismiss on those grounds, Trump points to the doctrine of absolute immunity. It’s here where the case could become explosive. (Also, it should be noted that the absolute immunity claim is different from the type of immunity asserted in the Summer Zervos defamation case, which involved statements made before Trump was elected. That was more in line with Clinton v. Jones, and whether a president can be bothered with civil litigation while in office.)
In 1982, in Nixon v. Fitzgerald, the Supreme Court considered a former employee of the Air Force who sued Richard Nixon after being fired because of whistleblower testimony in Congress. The majority opinion held that as former president, Nixon was “entitled to absolute immunity from damages liability predicated on his official acts.”
But what does that mean? What are official duties and what, to quote the Supreme Court, are “outer perimeter” acts? The Stormy Daniels situation may soon address this question too since all presidents are spokespersons for the nation, although not all hurl insults on Twitter.
As for emoluments, Trump argues he should get the Nixon treatment.
“Although this case arises in a different context, it implicates the same concerns that warranted absolute presidential immunity in Nixon,” his motion to dismiss states. “Plaintiffs are attempting to premise individual liability not on generally applicable laws that would apply to President Trump and others regardless of whether he is serving as President, but on a purported legal principle that is triggered only because of his Office.”
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