Quinta Jurecic on Lawfare discusses the resemblance between the medieval theory of monarchy, wherein a King has a mortal body but embodies an immortal essence, and similarities to President Trump and its legal ramifications:
In short, the distinction between the “personal” [Twitter] account and the “official” account is far from a dispositive one; the King’s Two Bodies exist layered on top of one another. With that in mind, how are we to identify a tweet from the Office of the President versus a tweet from Donald Trump in his personal capacity—if there is even a difference at all?
Amusing as this question may be, it actually does matter, across a number of different axes. I’m not talking here merely about maintaining the cognitive distinction between the statements of a person and the statement of the institutional presidency. But there are important legal implications too.
Consider the problem first in terms of its litigation implications. Delineating the scope of presidential immunity from civil suit in Fitzgerald, the Supreme Court ruled that the President enjoys absolute immunity when acting “within the ‘outer perimeter’ of his official responsibility.” Writing sixteen years later in Jones, the Court further held that Fitzgerald’s “reasoning provides no support for an immunity for unofficial conduct,” denying that “the President … has an immunity that extends beyond the scope of any action taken in an official capacity.”
Jones never considered what “unofficial conduct” undertaken by the President in office might look like, because it focused on conduct that took place before President Clinton assumed the presidency. But the Court’s arguments regarding the divisions between official and unofficial conduct in these two cases can arguably apply to behavior carried out within a president’s time in office as well. I feel confident the Trump administration will produce litigation fleshing out the boundaries of non-immune presidential conduct in office.
So the questions are whether anything said on any Trump Twitter account is immune to litigation – or if none of them are. It isn’t like being impolitic near a hot microphone, since tweeting by accident seems highly unlikely; it’s a deliberate act. So when is the President immune, and when isn’t he?
