ATTORNEY PAUL A. KSICINSKI 414-530-5214
ATTORNEY PAUL A. KSICINSKI
TOP 100 WISCONSIN CRIMINAL DEFENSE LAWYER
​414-530-5214
  • Home
  • References
  • PEER ENDORSEMENTS
  • PAST CASES
  • Blog
  • Contact
  • KNOW YOUR RIGHTS
  • How to deal with police
  • Practice Areas
  • About
  • Criminal Law Links
  • News

Discussion of current legal issues

Henry Nellum case selected by USA Network as a compelling homicide trial to keep an eye on in 2018

Button Text

Thompson v. Trump: THE RULE OF LAW, NOT THE RULE OF PASSION, MUST GOVERN AMERICA

2/23/2022

0 Comments

 
Picture

George Washington possessed enormous power and popularity as the head of the American army during the Revolutionary War. However, he understood that the rule of law needed to be respected and demonstrated immense responsibility while president.  “Passion influences those who are in power…Law is reason without desire.”

This principle is known as the rule of law, and America’s Founders knew it was essential to our republic.
John Adams, quoting James Harrington, believed in “a government of laws, not of men.” “Empire of laws, not of men,” Harrington wrote, is “according to ancient prudence.” In contrast, “modern prudence” counsels that “some man, or some few men, subject a city or a nation, and rule it according to his or their private interest: which, because the laws in such cases are made according to the interest of a man, or of some few families, may be said to be the empire of men, and not of laws.” The empire of laws is concerned with right; the empire of men, with power.

The Supreme Court has made this a national principle when it declared, “No man in this country is so high that he is above the law. . . . [The law] is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy.” United States v. Lee, 106 U.S. 196, 220 (1882); accord Butz v. Economou, 438 U.S. 478, 506 (1978).

The rule of law even applies to presidents. 

A president enjoys absolute immunity “from damages liability for acts within the ‘outer perimeter’ of his official responsibility,” Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982), the Court has made clear that absolute immunity does not extend to any “unofficial conduct” that falls beyond that outer perimeter, Clinton v. Jones, 520 U.S. 681, 693 (1997); see also id. at 694 (explaining that the Court’s reasoning in Fitzgerald “provides no support for an immunity for unofficial conduct”). In allegedly inciting a riot at the U.S. Capitol to forcibly interfere with Congress’s certification of the 2020 presidential election results, former President Trump acted well beyond the scope of his official responsibilities as president. In fact, the Constitution and federal law expressly require Congress to certify the Electoral College’s votes, see U.S. Const. art. II, § 1, cl. 3, and this constitutionally mandated process was ongoing when Trump allegedly prompted his supporters to “engage in tumultuous and violent conduct,” to interfere with it.

Consistent with this maxim, the Supreme Court has acknowledged that a president is absolutely immune from private suits for damages challenging his “official acts,” Fitzgerald, 457 U.S. at 754 (emphasis added)—or “acts within the ‘outer perimeter’ of his official responsibility,” id. at 756—but it has “never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity,” Jones, 520 U.S. at 694. In fact, the Court has flatly rejected claims for absolute presidential immunity for conduct beyond the “outer perimeter” of the president’s official responsibility, holding that a president remains “subject to the laws for his purely private acts.” Id. at 696.

In Thompson v. Trump, the U.S. District Court for the District of Columbia considered whether former President Donald Trump is entitled to absolute presidential immunity from damages liability for allegedly inciting a riot at the U.S. Capitol.  On February 18, 2022, the District Court for the District of Columbia issued its decision.  Judge Amit Mehta rejected former President Donald Trump’s bid to dismiss three consolidated lawsuits brought by 11 congressional representatives and two Capitol police officers to hold Trump to account for his role in the Jan. 6, 2021, insurrection.
 
Trump’s nonimmunity, the district court reasoned, were actions leading up to and on Jan. 6 did not relate to his official duties but rather to “his efforts to remain in office.”  Thus, “[o]rganizing the January 6 Rally,” the opinion states, “involved no presidential function.”  Moreover, the court found that one could plausibly read his words on Jan. 6 as “directed to inciting or producing imminent lawless action and [were] likely to produce such action.” The quotation states the Supreme Court’s test in Brandenburg v. Ohio, for words unprotected by the First Amendment.  Even more far reaching was the court’s determination that Trump’s role in an alleged conspiracy intended to interfere with congressional duty was so unprecedented that ordinarily close legal questions bend in favor of an answer that allows a suit against him to proceed.
​
Washington and Adams are resting peacefully since the rule of law, not the rule of passion, has been upheld.
0 Comments



Leave a Reply.

    Author

    These are reflections I have had about our criminal justice system.  Some of it may make sense, some of it might not.

    Archives

    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    February 2021
    January 2021
    November 2020
    October 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    January 2019
    December 2018
    October 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014

    Categories

    All

    RSS Feed

Powered by Create your own unique website with customizable templates.