Find a suit against President Donald Trump, and you’re sure to find the government arguing that the court has no business interjecting itself into the decisions and actions of the executive. The tactic is far from novel: The government argued the same kinds of privileges for presidents in the U.S. Supreme Court’s landmark Marbury v. Madison as well as its 1982 decision in Nixon v. Fitzgerald, both of which are cited in the parties’ briefs.
The suit over the blocking of people from Trump’s Twitter account is no different. Yet the case provides some important distinctions that make the immunity argument a discreet one in a case already novel in its focus on what a president can do over social media.
Attorneys for the Knight First Amendment Institute at Columbia University argue that the district court has jurisdiction in its suit over Trump’s blocking of users from his personal account.
The government, in a previous brief filed in Knight First Amendment Institute at Columbia University et al v. Trump, led their motion for summary judgment by arguing that the court was constrained from having jurisdiction in the case.
The plaintiffs—the Knight institute and a number of individuals blocked by the president on Twitter—brought suit against the president in July, alleging First Amendment viewpoint restriction violations in a government-sanctioned public forum after being blocked from Trump’s account.
In their briefs, the defendants argue on the one hand that the the plaintiffs cannot have their request for the court to step in and make Trump unblock them because “it would flout the separation of powers for the court to issue an order limiting the president’s discretion in managing his Twitter account.”
On the other hand, even if the court did find they did, the claim would still fail, the government argued.
“A First Amendment claim may be directed only at state action, not the president’s personal use of social media,” the government stated.
In its reply brief, the Knight institute cited the foundational separation of powers suit to argue that it is, in fact, the court’s constitutional place to “say what the law is,” specifically, as the U.S. Supreme Court has expounded, in particular cases and controversies.
According to University of Texas School of Law professor Stephen Vladeck, who co-authored the amici brief on behalf of eight federal court scholars, what’s unusual in this case is that it’s the actions of the president himself that are being litigated.
“There are lots of suits against the president all the time, but you tend not to have lots of cases where the question is whether the president was acting within or without his official capacity,” Vladeck said. “Is Donald Trump the defendant because the suit is against the federal government, or is Donald Trump the defendant because of something Donald Trump personally did?”
The suit allows for a unique focus on the president himself, as well as his actions as the chief executive, in the new context of social media, according to Vladeck.
“For better or for worse, this president provokes a large number of lawsuits that fall into that latter category,” he said.
Pointing to another core decision, the government argued that the U.S. Supreme Court’s 1867 decision in Mississippi v. Johnson prohibit courts from “enjoining the discretionary conduct of the president.” The court in that case declined to enjoin President Andrew Johnson from executing the Reconstruction Acts, which the recently re-admitted state of Mississippi claimed were unconstitutional.
“Just as courts cannot enjoin Congress in exercising its legislative function, they cannot enjoin the president in exercising the executive function,” the government argued.
In the brief, Vladeck and his co-author Goodwin Procter partner Brian Burgess and associate Andrew Kim argue that the government misreads the ruling that “cannot be divorced from its historical context” right after the U.S. Civil War.
The decision, they claim, is an early application of the political question doctrine, “rather than turning on the unique qualities of the President eo nomine.” Combined Johnson case progeny and alleged “dicta,” the government makes a “flawed” attempt “to assert an absolutist view that courts may never enjoin the official, discretionary conduct of the president.”
Courts over the years have entertained suits to enjoin based on the grounds that the president himself has overstepped statutory or constitutional authority, the amici authors argue. Additionally, the Supreme Court has said that while that suits against the president deserve “special judicial hesitation,” they’ve never expressly stated enjoining is impossible.
In their response brief, the Knight plaintiffs invert the government’s brief approach by addressing the immunity issue last. This is, in part, according to Knight staff attorney Carrie DeCell, because the doctrine preserving the court’s jurisdiction in a matter such as their suit is a straightforward one.
“For us, it just seemed like a distraction from the real claims at issue,” she said.
They point to the Nixon case as a definitive accounting that belies the government’s argument that the court lacks authority. They quote the Supreme Court’s observation that “‘the judiciary may severely burden the executive branch by reviewing the legality of the president’s official conduct, and … it may direct appropriate process to the president himself.”
“In this case, plaintiffs contend that the president and his aides have violated rights protected by the First Amendment, causing them concrete injury,” plaintiffs argue in the brief. “Resolving disputes like this one is what the courts are for.”
For DeCell, the issue ultimately comes down to a question of separation of powers.
“We think their argument completely turns that principle on its head, to suggest the courts don’t have the authority to hear a concrete case or controversy involving core constitutional rights because it’s the president who’s alleged to have violated them,” she said. “That just undermines our theory of governance in which nobody is above the law.”
To accept the government’s arguments would set a “dangerous precedent,” according to Vladeck.
“If the courts accept the immunity argument, it makes me very nervous about how you hold the president to account in these kinds of cases going forward. And if the court accepts the merits argument—that there’s just no First Amendment problem here—that makes me very nervous not just about the president, but to hold any government official to account when they choose to channel potentially unconstitutional actions through unofficial media,” he said.
A spokesperson at the Department of Justice could not be reached for comment.