//  8/8/17  //  Commentary

A few weeks ago, I highlighted a point that Jane Chong had made in her excellent series of posts on the administration’s position in the emoluments litigation.  Because I (still) can’t put the point Jane made better than she did, here is what Jane wrote after comparing the Trump administration’s position on the emoluments clauses to previous administration’s positions:

Presently the American public is engaged in a vociferous debate over what it means to be “presidential”—but this conversation has so far been largely confined to assessing the appropriateness of the President’s startling tweets. I suggest that the public would be well served by a more wide-ranging discussion of what it really means to uphold the dignity of the country’s most powerful office. The president’s insistence on protecting his own personal financial interests using a highly exacting conception of constitutional provisions designed to protect the country may well serve as an example of “unpresidential” behavior of the highest import. What we are witnessing is legal reasoning befitting an ordinary private litigant, whose chief interest is protecting himself and his wealth, not conduct and a litigation strategy befitting the President of the United States.

In my post, I noted how Jane’s characterization of the President’s position in the emoluments litigation could also be said of the position the administration had taken with respect to the scope of the Supreme Court’s injunction against the entry ban. In the emoluments litigation, the government lawyers adopted a legal position that operated to Trump’s personal benefit in a way that appeared to be narrowly designed to do so, which teed up whether the administration’s “self-interested [legal] stance is, by itself, fundamentally at odds with the trust that the office [of the President] confers.” And in the litigation concerning the scope of the Supreme Court’s injunction against the entry ban, the administration had adopted a similarly “unpresidential” position:

The administration’s defense was to make a claim about what the Supreme Court may have “had in mind” (but of course never said), together with some analogies to provisions of immigration law that (a) have not been held invalid by any court (much less several courts), (b) are far removed from the policies, scope, and context of the provisions in the Trump administration’s order, and (c) do not track the government’s proposed definition of “close family relationships” anyways. The administration lawyers have thus been both forced and willing to adopt “legal reasoning befitting an ordinary private litigant.., not … a litigation strategy befitting the President of the United States.”

In this post, I wanted to highlight two related litigation positions that Trump has taken, one in his official capacity and one in his personal capacity. In my view, both positions are not only themselves unpresidential, but also reflect a decidedly unpresidential view of the office of the Presidency.  The positions are: (1) the administration’s claim about whether courts can consider the President’s “campaign statements” when assessing the legality of the entry ban, and (2) the administration’s position on whether “campaign statements” can form the basis of a defamation claim against Trump.

In the entry ban litigation, the government has adopted the position that courts may not consider statements the President made while he was a political candidate. The government has maintained that “statements of what candidates might attempt to achieve … are often simplified and imprecise,” and that it would “chill political debate” if courts were to consider campaign statements. The  the administration and its supporters note that the 2016 campaign was particularly heated, and argue that's all the more reason to take the President’s statements with a grain of salt.

Now consider those arguments alongside the President’s recent defense to Summer Zervos’s defamation lawsuit. Zervos is the former Apprentice contestant who accused Trump of sexually harassing her and assaulting her. Zervos later accused Trump of defaming her after Trump described Zervos's accusations as “100% fabricated,” “made up stories and lies,” “totally made up nonsense”; and accused her of perpetrating a “phony” “hoax” to “regain the spotlight.” Trump's lawyers maintain that Zervos’s defamation claim should be dismissed because the statements she identifies as defamatory occurred “during a national political campaign that involved heated public debate”; and because the statements are “part of the expected fiery rhetoric” and “hyperbole” in campaigns.

The former position on the entry ban litigation was taken by lawyers for the government; the latter position on the defamation suit as adopted by Marc Kasowitz, Trump’s personal lawyer.  (Kasowitz was eventually relieved of representing the President in matters related to the investigation into Russia-related wrongdoing.)  There are, to be sure, differences between the two cases: The entry ban case seeks to invalidate a presidential action, whereas the defamation suit seeks to sue the President for a tort committed before he took office.

But the two positions also have much in common with one another. Both positions write off what the President said during the course of the campaign as stuff that can’t be taken seriously, or at least shouldn’t be. Both positions apologize for the President’s comments by explaining that they occurred in the course of a heated campaign, where fiery rhetoric and falsehoods are to be expected. The administration’s position overlaps considerably with the position that Trump’s personal lawyers have taken.

Both positions are also equally unpresidential in how they characterize the office of the Presidency and the path to that office. Campaigns can be “heated” and “fiery.” The 2016 presidential campaign was certainly that. Trump had more than a couple “heated” words for Hillary Clinton, the person who was actually running against him. He called her a liar, a crook, said that she should be in jail, shamed her for her husband’s sexual indiscretions, and a whole lot of other stuff too.

But why does the fact that the campaign was “heated” mean that Trump could, would, or should train his anger on individuals who were not running against him, like Summer Zervos, or entire groups of people, such as Muslims? All the fire in a campaign doesn’t explain the need to launch into tirades against people who aren’t your opponent, and aren't running for office, much less malign entire groups of people or religions.

The President’s litigation positions have other decidedly unpresidential spins to them. The positions maintain that we should ignore what someone says when he’s running for office, and allow him, free of any consequences, to campaign by lying about certain individuals or groups and (falsely) blaming those individuals or groups for others’ misfortunes. The President’s personal and official litigation positions are a license to victim blame and to scape goat individuals or groups who do not have access to the platform and power that officials do.  That’s exactly what Trump did during the campaign—dog whistle, scape goat, and stoke misogyny, xenophobia, and racism. Unsurprisingly, that's also what he’s continued to do in office.

The litigation positions that the President has taken in both his personal capacity and his official capacity also make little sense as a matter of law, as several commentators (Rick Hasen, Joshua Matz, several times over, Amir Ali, Ian Samuel and I, Amir and Joshua, etc…) have explained.  For example: Can we consider anything Trump says now since he's running for reelection in 2020?  The position that DOJ has taken in the entry ban case is also inconsistent with a DOJ's previous position, as Jim Oleske pointed out. And on top of that, DOJ's new position (and Trump's persona litigating positions) have troubling implications—the President is allowed to scapegoat away; to stoke ill-will and backlash;  to enact policies that reflect blame and scape-goating with impunity; and to cater to constituents’ desire to blame and scape-goat, also with impunity.

One last thought. I’d liken the litigation positions that the administration has taken in the entry ban litigation and Trump’s personal lawyers have taken in the defamation case to the way Trump’s enablers responded to some other words Trump had used. The infamous Access Hollywood tape revealed Trump crudely bragging about nonconsensual sexual advances he made on women. In case anyone has forgotten, Trump said:

“I better use some Tic Tacs just in case I start kissing her. You know, I’m automatically attracted to beautiful — I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything.”

“Grab ’em by the pussy. You can do anything.”

(I’m leaving out the part about him “moving on” a woman “like a bitch.”)

When the tape was revealed, the reaction/explanation from Trump’s enablers was to say that his comments were just “locker room talk”—nothing to be taken seriously, just tolerated and ignored. The explanation was that the comments didn’t mean anything.

Then came the slew of women who accused Trump of the same conduct he was caught bragging about on tape—touching and groping and kissing them without their consent. His comments were not really “just words” after all.

Now back to the entry ban litigation and defamation suits—why should we assume that Trump's words are just falsehoods that don’t mean anything?  Why should we dismiss them, either as “locker room talk” or as “heated campaign rhetoric”? Fool me once, shame on you. Fool me twice….


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