That’s a question being asked as Trump continues to bash penned-in media personnel in front of his rabid rubes at red-meat rallies where he calls reporters “bad people” and “totally dishonest” and “sick.”
In a just world, the answer would be yes. In the world as it actually exists, the answer is probably no — for three reasons.
For the quick (narrated by yours truly) skinny, check out this video:
Here are the legal problems with holding Trump accountable.
1. He’s President.
Yes, in case you just awakened from a decade-long coma, you have indeed come to in the middle of a real life simulation of that recent (to you) movie called Idiocracy. Donald Trump is president of the United States. (Yes, that Donald Trump.)
That being so, Trump benefits from a 1973 Department of Justice opinion, written in the Nixon era, in which the DOJ concluded that a sitting president may not be charged with a crime while he or she is still president.
Here is the crux of the reasoning behind that opinion (from page 28):
The author of the opinion left open the possibility that a former president could be charged with a crime after leaving office even if that crime was committed while he or she was in office; that’s consistent with the language of the Constitution, which explicitly says that impeachment and removal from office do not foreclose criminal proceedings after removal.
(As an aside, Ken Starr, the independent counsel who tried to bring down Bill Clinton, is of the opinion that a sitting president can be indicted for a crime. Ken Starr, however, is a hack and a fraud, so we shouldn’t care too much what he thinks.)
2. Incitement requires explicit advocacy.
If Trump were to be accused of a crime, it would likely be for violating a local ordinance criminalizing incitement in whatever jurisdiction an injury might occur. But courts are protective of speech and narrowly define any exceptions to the general rule that the government may not punish a person for what he or she thinks or says.
Nonetheless, courts recognize the compelling interest governments have in preventing unlawful, and especially violent, outbursts. Because courts recognize that interest but also mean to give the First Amendment teeth, they have developed a rigid test for incitement: a government may punish speech as incitement if (and only if) that speech meets the following elements (all of them):
- advocacy — meaning that the speaker specifically asked listeners to do something;
- imminence — meaning that the speaker asked his or her audience to do something immediately;
- illegality — meaning that whatever it is that the speaker advocated would violate some statute or ordinance (usually about violence or disturbing the peace); and
- circumstances under which the illegal activity was reasonably likely to occur — meaning that an audience of lemmings was patently unsophisticated, jacked up, and ready to follow its leader off the proverbial cliff.
Those last three elements might seem like they are tailor-made for what it is that Trump does during his rallies (especially that fourth one). The problem is that we never get past the first element (advocacy) because, as much as Trump lambasts reporters as “bad” and “dishonest” and “sick” people, he never explicitly asks anyone to do anything about it.
In incitement cases, the advocacy element is defeated if all the speaker does is express an opinion. And in the eyes of the law, “I think that these are dishonest, sick, bad people” is quite a long way from “I want you to storm the media pen right now and slaughter all the reporters.”
3. Presidents have absolute immunity from civil liability.
The first two points involve the question whether a president can be charged with a crime (and specifically incitement). What about civil liability — can a reporter who gets hurt because of Trump’s belligerent rants sue him for damages?
Probably not. In a case called Nixon v Fitzgerald, the US Supreme Court ruled that a president is absolutely immune from liability for anything he or she does that is even tangentially related to his or her role as president — including all matters involving politics or policy. This rule makes some sense; were a president personally liable (meaning he or she could be made to pay his or her own money in damages) for decisions or statements made as part of the job, no sane person would run for president. (I realize that the White House is not presently occupied by a sane person, but a few sane people did run.)
Trump’s rants about the media, however unhinged they might be, are related to his role as president; they are rants about politics — the role of the media in reporting about his executive malpractice. So Trump is likely immune from liability related to those statements.
In Clinton v Jones, the Supreme Court ruled that a president could be sued while in office for conduct (in that case, sexual harassment) that was entirely unrelated to politics or policy and that happened before the president was president. In any case involving injury to a reporter during a Trump rally, though, the allegations would involve political conduct occurring while Trump was on office.
As much as we might like to see Trump punished if his rhetoric results in violence against reporters, that’s unlikely unless the Supreme Court changes the rules.