President Donald Trump is asking a federal appeals court to shut down a lawsuit filed by protesters who claim they were assaulted at Trump’s instigation during a 2016 campaign rally in Kentucky.
Trump’s lawyers have asked the Cincinnati-based 6th Circuit Court of Appeals to head off an act of “political sabotage” by ordering a federal judge to throw out the lawsuit filed last year by three demonstrators. They alleged that when Trump declared, “Get ’em out of here,” he incited some in the crowd to beat up the protesters. (He later added: “Don’t hurt ’em.”)
A petition Trump’s legal team filed Thursday with the 6th Circuit stops just short of arguing that the president is immune from litigation over events that preceded his swearing-in, but contends that allowing this sort of suit to proceed while Trump is in office will be too disruptive.
“Allowing Plaintiffs’ vexatious claims to proceed would threaten the constitutional separation of powers by imposing an undue burden on the President and the Executive Branch,” Trump lawyer Michael Carvin wrote.
The Trump filing seeks an unusual form of relief known as mandamus, which allows a higher court to step into a pending case even when it is at a stage where a typical appeal is not available.
Carvin also argues that U.S. District Court Judge David Hale erred when he rejected Trump’s motion to throw out the case. Trump’s lawyers say the judge misinterpreted First Amendment precedents by suggesting that Trump could be liable for damages in the case even if he did not intend for anyone to get hurt or do anything illegal.
“Even if Mr. Trump were a private citizen, mandamus would be warranted solely for the purpose of avoiding irreparable harm to his First Amendment rights,” Carvin wrote.
Hale has not acted on a motion from the president’s lawyers to permit an immediate appeal of his ruling in March, rejecting a motion to dismiss the case.
The petition filed with the 6th Circuit also lets the appeals court judges know that the plaintiffs in the suit are seeking to force Trump into a deposition and to obtain various records in the discovery process, including his tax returns and information on any psychological treatment he may have received.
An attorney for the three protesters pursuing the case, Greg Belzley, did not immediately respond to a request for comment on the appeals court filing.
Trump’s lawyers may have stopped short of arguing for outright presidential immunity because the Supreme Court ruled in 1997 that a sitting president can be subject to lawsuits over acts alleged to have occurred before he took office.