A Dominion Suit against Trump for Defamation?

Just Security asked 8 experts. Here’s the summary:

Almost every expert said a defamation suit brought by Dominion against Trump would be very strong, but one expert raised concerns about the practicality of such a lawsuit and another raised issues of presidential immunity. As shown below, I wrote the prompt to allow respondents to bracket the immunity question or address it if they preferred. We may revisit that issue in future. In the meantime, readers may be interested in the recent DC district court ruling that Trump did not have immunity from civil suits involving his rally speeches and other political activities to secure incumbency between Nov. 2020 and Jan. 2021. Trump has also continued to make public statements since leaving office — repeating some of the same allegations as before but it appears with reference to “voting machines” rather than Dominion by name. That apparent change came after Dominion filed the first of its defamation lawsuits on Jan. 8, 2021.

I look forward to hearing more on the immunity issue. While recognizing that Nixon v. Fitzgerald characterizes the scope of absolute presidential immunity to be extremely broad, from an election law perspective I would argue that there is a need to weigh the extent to which an incumbent president seeking reelection is acting in the self-interested capacity of a candidate, rather than engaging in Article II responsibilities as the nation’s chief executive. (This is a point I made recently in the context of testimonial privilege claims made by Mark Meadows as Trump’s chief of staff.) For purposes of his role as president, Trump had no need to comment on Dominion voting machines. He was doing so as a candidate. The relevant constitutional doctrines need to calibrate the balance of relevant considerations, because the Constitution cares as much about the integrity of the election that will determine who holds the presidency for the next term as it does for assuring that the current incumbent can fulfill the duties of the office. Otherwise, as Bob Bauer has suggested, it may be necessary to limit presidents to a single (presumably six-year) term, because having incumbent presidents run for reelections is too much of a risk to the Republic.

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