What prompts us to bring this up now is the latest filing in a so-called lawsuit Conrad Smith vs. Trump. The case is brought by Capitol police officers who want to hold Mr. Trump and others personally liable for civil claims arising from the Jan. 6 violence. It has prompted Mr. Trump to assert executive privilege over about 4,000 of the 7,000 documents related to the battle. We see the personal liability lawsuit as a threat to all presidents.
Our purpose here is not to judge Mr. Trump’s conduct on January 6. Our intention is to point out the dangers posed in this case to the prerogatives of the presidency. Subjecting Mr. Trump to the kind of judicial attack suggested in the Capitol officers’ lawsuit amounts, we warned, to an “attempt to undermine the separate powers doctrine” that could well come back to haunt future White House occupants of either political party.
That didn’t stop Capitol officials, along with Democratic members of Congress, from denouncing Trump on Jan. 6, animated by what the Times called “frustration that he has not received punishment for the riot.” In total, there are eight pending cases against the president, Politico announced reported. The case filed by the agents, including Mr. Smith, prompts Mr. Trump to promise that he will “defend the office of the presidency.”
To that end, he rejects the officers’ demand to turn over records of efforts to persuade Mr. Trump on Jan. 6 “to make statements regarding violence,” per subpoena, as well as material related to “any strategy to overturn the results of the November 2020 presidential election.” Mr. Trump says the data is shielded by executive privilege, which allows the president to receive “candid and confidential advice in decision-making.”
It is difficult to avoid the logic of a sitting president’s need to protect his or her deliberations from outside scrutiny—especially when they relate to official duties. When Mr. Trump, then a private citizen, made a similar argument against the commission’s Jan. 6 demand for his data, the Supreme Court decided in 2022 rejected his plea. Yet in 2024, the Nine continued to defend Trump’s immunity, in most cases, from criminal prosecution.
In Trump vs. United StatesChief Justice Roberts stated that “as to the unofficial acts of a President, there is no immunity,” adding that “the principles we Clinton vs. Jones confirm that too.” When it comes to civil lawsuits like those brought by Capitol officers, the Supreme Court ruled in 1982 Nixon vs. Fitzgerald that a president has “absolute” immunity for acts that fall within the “outer perimeter” of his or her “official responsibility.”
This explains why, following a 2023 appeals court ruling, the Capitol officers’ case was sent back to the district court to determine whether, and possibly which, of Mr. Trump’s actions on Jan. 6 amounted to official acts. That evaluation is still in progress. Chief Justice Roberts acknowledged in Trump’s immunity case that sifting through a president’s official and unofficial conduct “can be difficult.”
That’s an understatement. It suggests that the judiciary is giving presidents the benefit of the doubt. It reflects an understanding on Mr. Trump’s part about what is at stake constitutionally. He himself claims that his concerns on January 6 were related to his official duties. He said ensuring an accurate vote count reflects his obligation to “ensure that the laws are faithfully executed.” Presidential duties don’t get much more official than that.
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