A new suit requesting declaratory relief, injunctive relief, and mandamus relief has been filed by Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive (NSA). (Complaint)
CREW and NSA have brought a civil action against Trump under the Presidential Records Act (PRA), the Declaratory Judgment Act, and Article II, Section 3 of the Constitution (the President has a duty to “take care that the laws be faithfully executed”). The action challenges the actions of Trump, his staff, and the Executive Office of the President that “seek to evade transparency and government accountability.” This is the politest way ever of saying that Trump and his palarounds are liars who are frantically spinning “alternate facts” and trying to hide their actions and information from reporters and the public. More insidious is the notion that the Executive Office of the President is hijacking the roles of executive agencies and, in doing so, avoiding transparency and accountability.
CREW and NSA have two main challenges in their suit.
First, they are challenging the Defendants’ communications practices that allegedly “knowingly prevent the proper preservation of records” that the Defendants either generate or receive when they are carrying out constitutional, statutory, or other official duties of the President. So, basically, the Plaintiffs are arguing that the Trump ’n’ cabal are actively doing things that keeping official records from being properly kept as required by law.
Second, Plaintiffs are asserting the Defendants’ are overstepping the boundaries of their power by usurping agency duties and responsibilities through consolidating power in the White House – if proven, this is also illegal. The Plaintiffs argue that the Executive Orders coming out of the White House are cloaked in secrecy which is preventing federal agencies from being able to comply with their statutory duties under three statutes: the Federal Records Act (FRA), the Administrative Procedure Act (APA), and the Freedom of Information Act (FOIA).
Plaintiffs make the point that their lawsuit is coming at a time of suspect activity in the Executive Office. Some examples of potential misconduct and questionable decision-making that CREW and NSA point at are the pressuring of James Comey to terminate the FBI’s investigation of former National Security Advisor Michael Flynn, as well as Trump’s firing of Comey after Comey refused to terminate the investigation. Plaintiffs argue that the question of whether these actions were illegal may only be resolved through access to contemporaneous records that explain what Trump did and why. Therefore, there is a huge need for transparency right now, specifically.
Our government’s checks and balances include ones that are implemented through congressional and judicial oversight. In order for Congress and the judiciary to keep tabs on what’s going on within the Executive Branch, they need to have access to records of the President’s actions. Compliance with record-keeping responsibilities under the PRA and the FRA is incredibly important for the functioning of our government.
CREW and NSA suggest that Trump and his dudes are either ignoring or just full-on flouting their responsibilities under the two Acts. Plaintiffs allege (based on information they claim to have)that the White House is using certain email messaging applications that destroy messages as soon as they are read, regardless of whether those messages are presidential records. Some of Trump’s tweets, subject to federal record-keeping obligations, have been deleted. Additionally, Plaintiffs assert that Trump has implied that he’s been secretly recording conversations with Administration officials – and who the heck knows whether those recordings are being preserved. There are also allegations, sourced from at least one news report, that when ongoing congressional and FBI investigations were disclosed, White House officials purged their phones of potentially compromising information.
Interjection: YOU GUYS. If this stuff is true, it’s a big deal. If the White House is using software to erase the contents of messages upon their being read, if phones are being purged…this is BAD.
Plaintiffs extend their challenge to the alleged [unconstitutional] consolidation of power in the White House. They argue that the centralization of government decision-making within the White House ensures that decisions normally made or implemented by Executive Branch agencies are able to “evade disclosure under laws like the FOIA, preservation under laws like the FRA, and public review and comment under the APA.”
Essentially, this Trump-power-absorption is wreaking havoc on the order of operations of our government. Records that the public would ordinarily have a right to access under the law (because ordinarily, the records would be agency records subject to disclosure under FOIA) are now improperly cloaked as presidential records subject to the President’s exclusive control and beyond the reach of the public. Additionally, decisions that would ordinarily be subject to review under the APA (for example, when agencies make decisions about propagating or changing regulations, those regulations must go through a public notice and comment period, accessible to the public at large) are also shielded from review as “presidential decisions.”
This is insidious. It is also scary. In simple terms, if what the Plaintiffs are alleging is true, the White House is eradicating a paper trail. They’re enabling themselves to act with impunity because without a trail, it will be very, very, very difficult to demand any kind of accountability.
By acting as they have, Trump’s Troops have prevented federal agencies from complying with the statutory responsibilities. Their actions have also violated the constitutional requirement that the President take care that the law be faithfully executed.
Plaintiffs have a laundry list of facts that they have included in their Complaint.
Included in this list (which you can read yourself in its complete form, beginning on page 13 of the Complaint – along with links to related articles) are:
- The Executive Office’s issuance of gag orders on federal agencies.
- Trump requiring congressional staffers to sign non-disclosure agreements before allowing them to help him draft his first Muslim travel ban executive order.
- Making the White House visitor logs private.
- Trump’s various claims that he has continued his private sector practice of taping conversations.
- Trump’s (and his staffers’) heavy use of electronic messaging tools and platforms to conduct presidential and federal business.
- The Administration’s disregard for the NARA’s guidance on using electronic communication and the use by some staffers of Signal, an encrypted peer-to-peer messaging application, to communicate about presidential or federal business.
- Signal has a disappearing message function that allows a user to set a timer to delete the message from all devices.
- Some of Trump’s staffers may be using the chat app Confide, which erases messages as soon as they’re read.
- There are no policies or procedures in place to record any of these conversations and communications, which are arguably Presidential records.
- Congress has become concerned with these secret, likely erased, communications. Jason Chaffetz (yeah, that guy) wrote a letter requesting that Trump identify all policies and procedures related to non-official electronic messaging (email, texting, social media, etc.) and official electronic messaging, and policies and procedures related to properly securing and preserving communications and presidential records.
- Prior to March 24, 2017, Trump’s staff purged their phones because they expected to be subpoenaed in connection to the various investigations in which Trump was embroiled.
- Trump uses his personal Twitter account, not the President’s account.
- The White House should be capturing all Tweets from both the personal and Presidential account. It is not, however.
- Trump has issued at least 43 executive orders. Executive orders are meant to be issued by and signed by the President and the President alone. Government personnel outside of the President and his staff have had significant roles in preparing, reviewing, and commenting on draft executive orders, including executive agencies. (This is important because this suggests that agency rules are masquerading as executive orders in order to circumvent the mandated rulemaking process under the APA.)
The Plaintffs’ claims are as follows:
- For a Declaratory Judgment that the knowing use by defendants of messaging apps that prevent the preservation of presidential records violates the Presidential Records Act
- For a Declaratory Judgment that the failure of the President, his staff, and the EOP to issue guidelines concerning the use of messaging apps that prevent document preservation violates the Presidential Records Act
- For a Writ of Mandamus and Injunctive Relief compelling President Trump, his staff, and the EO to comply with their non-discretionary duties under the PRA
- For a Declaratory Judgment that Defendants’ use of the executive order process to remove records and rulemaking from the FRA and FOIA and the APA is contrary to law and violates the President’s constitutional obligation to take care to faithfully execute the law
They want the court to:
- Declare that the Defendants’ knowing use of messaging apps that prevent the preservation of presidential records violates the Presidential Records Act;
- Declare that the Defendants’ failure to issue guidelines concerning the use of messaging apps that prevent document preservation violates the Presidential Records Act;
- Order all Defendants, in the form of injunctive and mandamus relief, to refrain from using methods of communication that destroy records before any determination can be made as to whether they should be preserved as presidential records under the Presidential Records Act;
- Declare that the Defendants’ use of the executive order process to remove records from the Federal Records Act and public access under the Freedom of Information Act, and the rulemaking process of the Administrative Procedure Act, are contrary to law and the President’s constitutional obligation to take care that the law be faithfully executed; and
- Grant such other and further relief as the Court may deem just and proper.
Keep an eye on this one, guys. It’s not headline news yet, but CREW’s and NSA’s assertions run deep and are weighty claims. If their allegations are true, then Trump is hijacking the government in a very, very serious way, and erasing the paper trail as he does it.
Some “Brief” (because there’s no such thing as truly brief where laws are concerned) Background on the Laws at Issue
(I’ve also included citations to the laws, so anyone interested can sift through. Otherwise, just skip right over ‘em.)
Presidential Records Act
The PRA was enacted in 1978 in response to Watergate. It is meant to establish public ownership of presidential and vice presidential records, impose record-keeping requirements on the President and Vice President, and to the National Archives and Records Administration (NARA) to preserve presidential records and make them publicly available. The PRA states that “[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records[.]” 44 U.S.C. § 2202.
The Act directs the President to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records[.]” 44 U.S.C. § 2203(a). In other words – the President is to document everything. Period.
“Presidential records” is broadly defined to include documentary materials “created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President” in conducting activities related to the President’s constitutional, statutory, or ceremonial duties. 44 U.S.C. § 2201(2). In other words…all the President’s elbow-rubbers are included here. Excluded from presidential records are “personal records” which are defined as those “of a purely private or nonpublic character” unrelated to the President’s constitutional, statutory, or ceremonial duties. 44 U.S.C. § 2201(3). I imagine that if a President wanted to write Harry Potter fan fiction under a pseudonym, it would fall under “personal records.”
“Documentary materials” is also broadly defined and includes “electronic or mechanical recordation’s.” 44 U.S.C. § 2201(1). The PRA’s legislative history explains that Congress intended the scope of “Presidential records” to be “very broad since a great number of what might ordinarily be construed as one’s private activities are, because of the nature of the presidency, considered to be of public nature, i.e., they effect the discharge of his official or ceremonial duties.” (So maybe that HP fanfic would be a Presidential record after all, depending on its contents.) The broad definition of “documentary materials” also helps ensure that the President and NARA preserve records that have or, maybe more importantly, are later found to have, great historical value. This way, documents default to “Presidential records” – save first, ask questions later.
There’s also a whole process under the PRA for the destruction of presidential records. The only way the Prez gets to destroy his or her non-personal records is after s/he has affirmatively determined that the records “no longer have administrative, historical, or evidentiary value[.] 44 U.S.C. § 2203(c). After a President has made this determination, s/he must then obtain the written views of the Archivist of the United States that the Archivist does not intend to take action to the contrary. 44 U.S.C. § 2203(c)(1)-(2). The Archivist must then state, in writing, that s/he has no intention of taking action with respect to the destruction of the specified presidential records.
We’re not done yet.
After al of this, then the President has to notify the appropriate congressional committee sixty days before the proposed disposal date of the President’s intention to dispose of the records. 44 U.S.C. § 2203(d). For anyone keeping count this is a four-step, and pretty lengthy, process. In writing the PRA, Congress wanted to guarantee that records were only destroyed after multiple entities deliberated and weighed-in.
(By the way, the Archivist is in charge of the records after the conclusion of the President’s term and must make those records publicly available as “rapidly and completely as possible consistent with provisions of this chapter.” 44 U.S.C. § 2203(g)(1).)
Anyway, as technology has advanced, obviously the PRA has had to evolve as well. In 2014, Congress amended the Act to expand the scope of means of communication. The 2014 amendment prohibits the President, his staff, and the EOP from using non-official electronic message accounts unless they: (1) copy one of the President’s official electronic messaging accounts, or that of his staff or EOP, or (2) forward a complete copy of the presidential record to an official electronic messaging account of the President, his staff, or EOP. 44 U.S.C. § 2209(a)(1)-(2). The President must comply with this requirement within twenty days after the presidential record in question is created or transmitted. An intentional violation means being subject to disciplinary action. 44 U.S.C. § 2209(b).
It should be a given, but “electronic messages” means “electronic mail and other electronic messaging systems that are used for the purposes of communicating between individuals.” 44 U.S.C. § 2209(c)(2).
That Presidential Twitter account, though.
One last thing worth noting is that although presidential records aren’t subject to the FOIA while the President is in office, most records become subject to FOIA requests five years after the President has left office.
The Federal Records Act
The FRA is like the PRA but for federal agencies. Congress enacted and amended the FRA to assure “[a]ccurate and complete documentation of the policies and transactions of the Federal Government,” and [j]udicious preservation and disposal of records.” 44 U.S.C. § 2902(1), (5). The head of each federal agency is charged with keeping track of and saving just about everything that relates to the agency’s actions. 44 U.S.C. § 3101. Further, the head must “establish safeguards against the removal or loss of records [the federal agency head] determines to be necessary and required by the regulations of the Archivist.” 44 U.S.C. § 3105.
Unlike the PRA, the public or other interested parties may request the disclosure of these records through FOIA.
The Administrative Procedure Act
Ah, the APA. Brings back stressful law school flashbacks. The APA governs the internal rule making procedures of federal agencies. 5 U.S.C. §§ 551-559. In short, a federal agency creates a rule that is subject to the APA when it seeks to “implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4).
As I briefly mentioned above, the APA requires agencies engaging in rule making to provide public notice of a proposed rule making in the Federal Register, to provide interested persons with a meaningful opportunity to comment on the proposed rule, and to engage in reasoned decision making, considering all public comments. One rules or made, they are subject to judicial review and must be consistent with the statutory text authorizing the agency to promulgate regulations.
Freedom of Information Act
FOIA was enacted in 1966 and established a statutory right of public access to information held by Executive Branch agencies upon request. Congress wanted to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The Act carries a “strong presumption in favor of disclosure,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991), and its “limited exceptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976).
In short, the government should be transparent and the public should have access to its decisions and various decision-making processes. This is important in order to keep corruption in check and to hold those in charge responsible for their actions.
Under FOIA, just about every single record created by a federal agency must be made publicly available. There are a few specific exemptions however. Included in the government entities that fall outside of the APA’s definition of “agency” is the Office of the President, which is not subject to FOIA.
At issue in CREW’s and NSA’s complaint is Article II, Section 3, which is the “Take Care Clause.” The Take Care Clause says that “[the President] shall take care that the laws be faithfully executed[.]” U.S. Const., art. II, § 3. The Supreme Court has interpreted the Take Care Clause as imposing a “duty” or “obligation” on the President to ensure that Executive Branch officials comply with Congress’ law. Kendall v. United States ex rel. Stokes, 37 U.S. 524, 613 (1838).
(So the President can’t just run amok, usurping agency responsibilities, ignoring Acts aimed at the Executive Office, etc. etc.)
Donald Trump just has horrible luck with the court system. Maybe because he’s wholly ignorant of the law, maybe because he just doesn’t care, or maybe due to a mixture of the two. Whatever the case, he (and a few of his supporters) are still stuck in a lawsuit thanks to misunderstanding the First Amendment of the Constitution and blatant misreadings of relevant statutes. The US District Court for the Western District of Kentucky just issued an Opinion on Friday refusing to dismiss the lawsuit.
A year ago, the plaintiffs in the case were protesters at a Trump rally at which Trump allegedly directed his supporters to “Get ‘em out of here.” After this directive, several of his supporters apparently followed his orders and physically attacked the plaintiffs. One of the protesters is black and was shoved and then struck, one was seventeen and a high school student at the time and was punched in the stomach. Once the ruckus started, Trump apparently tried to backpedal, allegedly saying, “Don’t hurt ‘em. If I say ‘go get ‘em,’ I get in trouble with the press.” Ultimately, the attack [understandably] forced the protesters out of the rally and they later filed suit.
The lawsuit alleges assault and battery by the Defendant Trump Supporters in addition to incitement to riot, vicarious liability, and negligence on the part of Trump and his campaign. (That is, Trump encouraged the disorder and is responsible for the actions of his supporters.) The Trump Defendants filed a motion to dismiss, the defendant supporters filed similar motions and the Court decided to grant in part and deny in part. (I.e., some claims passed muster, others did not, and the Court found that most of the plaintiff’s claims were sufficient to carry the case to hearing.) I’ve only summarized Trump’s crew’s arguments, not those of the Defendant Trump Supporters, but you can read those starting on page 17 of the Court’s opinion.
In order of the Court’s discussion:
Trump Defendants (Trump and his campaign) sought to dismiss incitement of riot, vicarious liability, and negligence, gross negligence, and recklessness.
I. Incitement to Riot
The Trump Defendants argued that it isn’t plausible to say that Trump was addressing the audience members or that he intended for violence to ensue when he directed his supporters to remove the protesters (he was clearly just talking to even security). Then they claimed that because the plaintiffs never alleged that a riot actually occurred, the claim is deficient. Finally, they asserted that regardless, Trump’s statement was protected by the First Amendment.
Mmmm….nope. None of these contentions warrant dismissal at this point in the case.
Plausibility: The Court said that just because there is an alternative plausible explanation for why a defendant did something does not mean that the plaintiffs’ explanation is therefore implausible and subject to dismissal. Precedent establishes that pleadings in a case do not have to be “probable,” just “plausible.” And the plaintiffs allege numerous facts that support the notion that Trump’s words were directed to his audience. They cite numerous occasions where Trump made comments that endorsed or encouraged violence against protesters. They point to the fact that one of the Defendant Protesters interpreted Trump’s words as an instruction and took action. Presumably, if Trump had intended for security to handle the protesters, he would have directed his supporters to stop what they were doing, not offer guidance as to how to go about it (“Don’t hurt’em.”). Therefore, the Plaintiffs’ allegation is plausible and the Trump Defendant’s failed to identify an “obvious alternative explanation” for Trump’s statement that would warrant dismissal of the incitement claim.
Occurrence of a Riot: The Court had a pretty easy time with this one because the statute on which Plaintiff’s rely does not actually require the occurrence of an actual riot. Instead, it just provides that “[a] person is guilty of inciting to riot when he incites or urges five (5) or more persons to create of engage in a riot.” Further, the Trump Defendants were unable to find any case that established such a requirement. They tried to argue that the complaint doesn’t actually allege that five or more persons were involved in the Plaintiffs’ mistreatment or that there was “tumultuous and violent conduct” but again, this isn’t an argument relevant to the statute at issue. The only relevant action to the statute is that someone provoked, urged, or stirred up someone(s) else to commit a crime. There were more than five people at Trump’s rally, Trump was allegedly speaking to all of them, some of them acted. Further, Plaintiffs and one of the defendants described a “chaotic and violent scene in which a crowd of people turned on three individuals and those individuals were injured as a result.” That is enough. Five or more didn’t have to act. There didn’t need to be a riot. All that was required was incitement, and the Plaintiffs alleged sufficient facts as to prevent this claim from being dismissed.
First Amendment (my favorite because they attempt to get this case thrown out on the basis of the First Amendment is so laughable to anyone who has ever taken Constitutional Law – which the lawyers here presumably did): There is caselaw literally everywhere that holds that incitement of violence is not protected by the First Amendment. You cannot go around stirring up people to commit crimes and then claim that you were allowed to do it “because, First Amendment.” Sorry Charlies, that’s a no fly zone. The Court cited a whole long list of cases to back this up. Most to the point? Bible Believers v. Wayne Cty., “[W]hen a speaker incites a crowd to violence, his incitement does not receive constitutional protection.” Speech is considered “incitement to riot” if (1) it explicitly or implicitly encourages the use of violence or lawless action; (2) the speaker intends for his speech to result in violence or lawless action; and (3) the imminent use of violence or lawless action is the likely result of the speech. If someone is encouraging action, it might be incitement. The Court determined that the Plaintiffs adequately alleged that Trump’s statement meets the criteria.
I almost feel bad for Trump’s lawyers. They’re making such terrible legal arguments that one has to wonder whether they’re going to find a sharp decline in the number of clients interested in hiring them for their services. Frankly, the conspiracy theorist in me thinks maybe they know it’s absurd, but they want to get these arguments on the record to pave the way to use them in the future, perhaps with greater success, and dismantle our Constitution.
II. Vicarious Liability
The Plaintiffs made the argument that the two named Supporter Defendants were acting as Trump’s agents when the incident occurred. Trump Defendants argued that they cannot be held vicariously liable for the protesters actions. Yeah, the Plaintiffs were stretching here and the Court agreed with the Trump Defendants.
Court: “Agency” requires a fiduciary relation between people – there has to be the manifestation of consent by one of the people to the other person that s/he will act on his behalf and subject to his control. While employment isn’t necessary to form this relationship, there must be a “right to control” the agent’s conduct and Plaintiffs failed to demonstrate that Trump had this right over his supporters.
The principal (in this case, Trump) has to have control over the manner in which the agent acts. Merely telling someone to take an action is not sufficient to establish agency. More precisely, “An individual is the agent of another if the principal has the power or responsibility to control the method, manner, and details of the agent’s work.” The Court determined that Plaintiffs failed to include appropriate supporting factual allegations for their allegation that Trump’s supporters were his agents and therefore Trump Defendants are vicariously liable. Because of this, the Court dismissed this complaint.
The Court’s agreement with the Trump Defendants stopped at vicarious liability. Negligence requires a showing of duty, causation, breach of that duty, and subsequent damages caused by that breach (yay! Torts 101). The Trump Defendants argued that they could not be liable for negligence because they had no duty to Plaintiffs, the security at the event was adequate, there is no alleged causal connection between Trump’s words and Plaintiffs’ injuries (lol, really?), and Plaintiffs assumed the risk of the injury (oh brother, one never makes this argument. Absent injuries in something like contact sports, it’s difficult to argue that someone consented to being harmed without some sort of explicit agreement. Further, most states hold that you can’t consent to be on the receiving end of an illegal act). Finally, the Trump Defendants tried to argue that the Plaintiffs created a new negligence theory that, if accepted by the Court, would violate the First Amendment.
The Court dismissed all of these arguments out of hand. It tackled the so-called “new negligence claim” first and determined that the Trump Defendants’ assertions regarding it were baseless. The Trump Defendants asserted that the Plaintiffs failed to allege “any knowledge on the part of the Defendants” that Trump’s audience might be predisposed to violence. The Plaintiffs specifically alleged that “the directive to eject a Black woman, when several members of a group that Trump knew or should have known was a recognized hate group were present in the audience, was entirely reckless, or at least negligent/grossly negligent.” So, that prompts the question: did the Defendants just fail to read the complaint?
The Court also wasn’t convinced by the argument that allowing the Plaintiffs’ negligence claim to go forward would be in violation of the First Amendment. The cases cited by the Trump Defendants involved defamation or other false statements, which do not apply here. The one exception was a 1975 case that addressed a defendant who made threats against the president and Justice Marshall on the Supreme Court stated that the Court “should be particularly wary of adopting [a negligence] standard for a statute that regulates pure speech.” First, the Court here pointed out that this is not a categorical rule, and second, there’s still the fact that incitement is not entitled to First Amendment protection. Thus, the 1975 case is also inapplicable to the facts alleged in this matter.
The Plaintiffs also sufficiently alleged that the Trump Defendants had a duty to them. Although “a proprietor is not the insurer of the safety of its guests,” the rule in Kentucky is that “every person owes a duty to every other person to exercise ordinary care in his activity to prevent foreseeable injury.” Soooo stirring up a potentially volatile situation is probably going to be a violation of that duty.
Foreseeability isn’t a high bar to meet. In Kentucky in the proprietor-patron context, a plaintiff must show that (1) the proprietor had knowledge that one of his patrons was about to injure the plaintiff and he failed to exercise ordinary care to prevent such injury; or (2) the conduct of some of the persons present was such as would lead a reasonably prudent person to believe that they might injure other guests. Basically, if you’re holding an event and you see that somebody there is about to attack someone else there and you DON’T take some sort of ordinary preventative action, there’s foreseeability that harm is about to occur. OR, if you are watching people at your event get riled up in such a way as to cause violence and it would be apparent to Joe Blow off the street that yeah, maybe they’re going to hurt someone, there’s foreseeability.
Further, an act or omission might be negligent if the person acting either realizes or should realize that what they’re doing involves an unreasonable risk of harm to another person through someone else’s conduct, which is intended to cause harm, even if that conduct is criminal. So Trump Defendants aren’t absolved of liability just because someone did something criminal if that criminal act was a reasonably foreseeably consequence of Trump’s negligent act. The Court also pointed out that the Trump Defendants cited more inapplicable cases, none of which involved a defendant who had allegedly triggered the criminal act of a third party.
Bolstering the Plaintiffs’ argument for the foreseeability prong of the negligence test is the Plaintiffs’ allegation that Trump supporters were wearing t-shirts that identified them as supporters of the Traditionalist Worker Party; that Trump therefore knew or should have known that his audience included members of “a recognized hate group;” and that order the removal of an African-American woman was thus particularly reckless. The Plaintiffs further alleged that protestors had been attacked at earlier rallies. Therefore, the Court found that the Plaintiffs adequately alleged that their harm was foreseeable and that the Trump Defendants had a duty to prevent it.
The Trump Defendants also tried to claim that the Plaintiffs failed to plausibly allege proximate cause. I don’t know how they argued this with a straight face, I really don’t. It seems so absurd. Like, you hollered a directive and then people did stuff and somehow you’re trying to say that there wasn’t cause and effect? What? The Court was on the same page and found that the Plaintiffs plausibly alleged that Trump intended for the audience to act on his words. He said to “get ‘em out” and then people in the crowd began pushing and shoving the protestors. The Trump Defendants’ argument that Trump’s statement could not have been the proximate cause of any violence because it was likely not directed at the crown was laughable (or, as the Court put it “without merit”). Come on, dudes. You’re giving all of us lawyers a terrible name (and it’s not like we’re not already struggling in the public perception department).
The Court was likewise unimpressed with the concern that the complaint failed to allege the type or cost of security present or needed at the rally. The Plaintiffs argued that the Trump Defendants were negligent in relying on audience members to remove protestors rather than relying on professional security handle the task. Their argument had nothing to do with whether there were sufficient numbers of security officers present.
Finally (and maybe my other favorite) the Court smacks down the “assumed the risk” argument with one sentence: “The doctrine of assumption of the risk was abolished in Kentucky decades ago.”
Seriously. These lawyers are horrible. Did they not read any caselaw? Were there so few arguments to be made in defense of Trump that they just had to make really, really bad ones?
See ya in court, Trump. When you break the law, it chases you. And you’ve managed to tick off our entire judiciary and your lawyers are seemingly not good at their jobs, so good luck out there. You’ll need it.