President Trump is Above the Law (of Incitement)

Last night, at a rally in Harrisburg, Pennsylvania, convened to celebrate the hundredth day of his presidency, Trump was interrupted by protesters. In response, he declared, “Get him out of here”—and the protester in question was ejected.

This incident is notable for exactly one reason: President Donald Trump is currently being sued in federal court for incitement over events at a campaign rally in March 2016 in which he did literally the same thing—that is, spoke almost verbatim the same words.

Trump is being sued for incitement in a case before the U.S. District Court for the Western District of Kentucky. Three plaintiffs have filed suit against Trump for his conduct during campaign event in Louisville, Kentucky. The plaintiffs, who were protesting the event, allege that they were shoved and hit by rally attendees after Trump encouraged his supporters to “Get ‘em out of here.” The district court court recently denied a motion by Trump to dismiss the case, allowing the case to proceed, at least for now. The court has not decided that Trump’s conduct constituted incitement, but it has refused to dismiss the matter on grounds that it couldn’t be incitement.

Here’s what happened last night in Harrisburg:

In this case, Trump’s encouragement of the protesters’ removal seems to have taken place once law enforcement was already involved in ousting them from the venue. But his supporters once again involved themselves directly in handling the protestors as well. In other words, Trump once again triggered physical coercion by private citizens against protesters at a rally by using the words “Get ‘em out of here”—precisely the conduct he’s currently defending himself against in federal court.

Trump’s lawyers have argued in the Kentucky case that he is immune from suit under Nixon v. Fitzgerald and Clinton v. Jones. These arguments seem likely to fail in the context of the March rally: Fitzgerald protects the President from suit when acting “within the ‘outer perimeter’ of his official responsibility,” which certainly is not the case for a statement made at a campaign rally before Trump took office. Furthermore, Jones explicitly denies presidential immunity for pre-presidential conduct.

If Trump were to be sued for incitement over his behavior at last night’s rally, by contrast, he would have an overpowering case to make for immunity under Fitzgerald. This was a public appearance in his capacity as President of the United States, after all.

But it is nevertheless noteworthy that Trump continues to engage in behavior indistinguishable from conduct that has already exposed him to civil suit. It’s particularly interesting in light of the fact that the district judge has already held that the “Plaintiffs have alleged a plausible claim of incitement to riot.”

In civil litigation, being President really does mean being above the law—at least, apparently, the law of incitement.