Neil J. Kinkopf // 4/25/17 //
Donald Trump is and long has been a divisive figure. This, I hope, will come as news to no one. While running for president last year, his campaign rallies attracted large crowds of supporters and protesters. In Louisville during the Republican primaries, the scene followed this familiar tableau. When three protesters unfurled a banner protesting his candidacy, Trump screramed to the crowd, "Get 'em outta here." Trump's droogs snapped into action. Alvin Bamberger, Matthew Heimbach -- an active white nationalist according to the Southern Poverty Law Center -- and others attacked the protesters.
The victims of the riot, the three protesters, have sued Bamberger and Heimbach for their assault as well as Donald Trump and his campaign for inciting the violence. In their defense, Bamberger and Heimbach have asserted that they were merely following Trump's order. To prepare his response, Donald Trump hired a Louisville lawyer named R. Kent Westberry. Mr. Westberry filed his answer to the complaint last Friday. As "fourth affirmative defense" Westberry asserted that "Mr. Trump is immune from suit because he is President of the United States." This is, of course, flatly and obviously wrong. The Supreme Court held unanimously in Clinton v. Jones that a sitting president is not even temporarily immune from suit for pre-presidential conduct. Perhaps Mr. Westberry is to be forgiven for missing this point. After all, the constitutional law of presidential power and immunity is a narrow and rare specialty. It is understadable that the question of a president's amenability to suit for pre-presidential conduct is not a staple of litigation practice in Louisville, Kentucky (or anywhere else, really).
But there is a problem with this charitable view of Mr. Westberry's filing. The fourth affirmative defense is followed by a fifth: "Mr. Trump is immune from proceedings pursuant to Clinton v. Jones, 520 U.S. 681 (1997)." At least Mr. Westberry's bluebook form is unassailable. Had he read the case that he so flawlessly cites, he would know what any student who has taken a basic course in constitutional law knows, that Clinton v. Jones refutes the proposition for which he cites it. When President Trump and his professional spinners claim that his inauguration was better attended than President Obama's, even though all evidence actually demonstrates that this claim is spectacularly untrue, there is no recourse other than the hope that "we the people" will exercise our civic duty to resist.
When a lawyer makes such demonstrably false assertions to a court, there is a more concrete recourse available. Federal Rule of Civil Procedure 11 authorizes a court to impose sanctions on any attorney who signs a pleading if "the claims, defenses, and other legal contentions therein are [not] warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." Mr. Westberry signed a pleading that does not seek the reversal of the Supreme Court's unanimous ruling in Clinton v. Jones, instead it actually cites the case and asserts a defense that existing law plainly repudiates. The District Court should sanction Mr. Westberry and refer his egregious misconduct for disciplinary action.