I know we’re all in a kerfuffle about, well, everything. And, rightfully so. However, I am going to take a moment to forecast some potential schadenfreude—hoisting Trump by his own petard.
Our crippled S.Ct. last year ruled that:
1) presidents have total immunity for core constitutional powers,
2) presumptive immunity for other official acts, and
3) no immunity for unofficial acts.
This isn’t so very different from the typical sovereign immunity defense of government officials, though it DOES reach further on ‘core’ constitutional powers. What are those core powers? Foreign affairs? Appointment of officials? Golfing at Mar-a-Lago? Not what I’m worried about, here.
Before this decision, there was a fairly standard set of rules for determining when government officials became personally liable for their actions in office.
Take a look at this, blatantly stolen from the DOJ website:
However, the immunity conferred by FELRTCA does not extend or apply to suits against federal employees for violation of the Constitution or federal statutes. Thus, government officials sued for constitutional torts continue to be protected only by qualified immunity.
Now, look at this from Wiki
In the United States, qualified immunity is a legal principle of federal constitutional law that grants government officials performing discretionary (optional) functions immunity from lawsuits for damages unless the plaintiff shows that the official violated "clearly established statutory or constitutional rights of which a reasonable person would have known".
Put those two things together and we get: government officials can be personally liable for violating the Constitution or federal statutes when that official violates clearly established statutory or constitutional rights.
You know what a ‘clearly established constitutional right” looks like? Friggin’ Due Process.
You know how I know? The same damned S. Ct. just ruled as such in regards to deporting people to El Salvador.
You know what is also a right? Having the government comply with an order of the S. Ct. that says they’re entitled to relief.
Schadenfreude alert: Trump deported people without due process. Lost at the S. Ct. Had the S. Ct. order him to comply. And then failed to do so.
There’s a damned good argument to be made that Trump—and his henchmen—can be personally liable to individuals for the harm that they cause by violating the constitution and ignoring the S.Ct.
I’m not buying popcorn, yet. But, I’m hopeful.
