Constitutional Law

Trump lawyer cites Nixon case in asserting 'absolute immunity' in emoluments suit

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Scott Maxwell LuMaxArt/

A lawyer for President Donald Trump claims an emoluments lawsuit should be dismissed because presidents have “absolute immunity” for actions taken upon the assumption of office.

William Consovoy made the argument in a motion to dismiss filed on Tuesday in Maryland federal court, report Law360, the Hollywood Reporter and Reuters.

The motion cited a 1982 decision, Nixon v. Fitzgerald, that held former President Richard Nixon had absolute immunity in a suit alleging retaliation against a federal employee.

The court ruled in Fitzgerald that there was absolute immunity to damages for official acts that extended to the “outer perimeter” of the president’s responsibilities. (See this analysis by LawFare.)

The Trump motion says the Supreme Court “has concluded that the costs to the nation of allowing such suits to distract the president from his official duties outweigh any countervailing interests.”

The suit against Trump, brought by Maryland and Washington, D.C., claims that the president is violating the Constitution’s foreign and domestic emoluments clauses by accepting payments from foreign governments and states through his business empire. The suit seeks an injunction requiring divestment of Trump’s business interests.

U.S. District Judge Peter Messitte ruled in March that D.C. and Maryland have standing, but he narrowed the suit to a claim that the clauses were violated when the Trump International Hotel in Washington, D.C., accepted business from foreign and state governments.

Consovoy’s motion argues several alternate grounds for dismissal. The motion says Trump is being sued in his individual capacity, and there is no personal jurisdiction because Trump lacks personal contacts with Maryland. Even if Maryland were a proper forum, there cannot be a claim for equitable relief, as opposed to a claim for damages, against a government official in his individual capacity, the motion argues.

“Nor has Congress provided a statutory cause of action for constitutional violations against federal officers,” the motion says.

If the court reaches the immunity argument, it could provide a vehicle to define the limits of absolute immunity, according to lawyer Aaron Lang of Foley Hoag, who spoke with Law360.

“The ‘outer perimeter’ sounds all-encompassing, but the emoluments case could test its limits,” Lang told Law360.

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