Trump Accidentally Waives his Immunity in Incriminating Posts

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Did Donald Trump waive his claim to absolute immunity based on the social media post he made over the weekend on his private Truth Social account on a platform, Truth Social, that he owns, where he said Pam Bondi, his attorney general, prosecute my political opponent, Senator Adam Schiff, former FBI Director James Comey, and New York Attorney General Letitia James.

I want to dig in to the United States Supreme Court's July 2024 decision on absolute immunity.

I want to then dig in to another case called Knight First Amendment Institute at Columbia University versus Donald Trump, decided by the Second Circuit in 2019 and then ruled upon by the Supreme Court in 2021 regarding Donald Trump's ability to block people from his Twitter account.

And I want to share with you Donald Trump's arguments that he made in the Knights First Amendment case, where he argued at the time that his Twitter account was a private account that was not a government-run account, and that he was blocking people in his unofficial rather than official capacity.

That distinction, official versus unofficial capacity, is an important concept in the Supreme Court's 2024 order, where it gave Donald Trump absolute immunity because the Supreme Court said that Donald Trump is not entitled to absolute immunity for unofficial conduct.

So, if Donald Trump argued in the 2019 case that blocking people on Twitter was done in an unofficial capacity because his at-real Donald Trump versus his at POTUS account was unofficial in nature, wouldn't it follow and be a more persuasive argument that his Truth Social account owned on a platformed or operated on a platform that he owns, Truth Social, that that would be purely unofficial in nature as well?

What I want to do in this analysis is also share with you Justice Clarence Thomas's concurring opinion.

In the 2021 Supreme Court case involving that Knights First Amendment Institute v.

Trump.

The case name changed, and it was eventually Knights First Amendment v.

Biden because Biden won the election.

He became president.

And then the Supreme Court ultimately dismissed the case or vacated the case as moot because Trump wasn't in office anymore.

So the Supreme Court never had to address the issues of unofficial capacity versus official capacity as it relates to Donald Trump's social media posts.

But what's interesting is Justice Clarence Thomas was very critical of Twitter at the time and these digital platforms that he was railing against and saying these private, digital, rogue platforms, they're really who need to be blamed, not Trump in that case.

Well, Donald Trump owns the digital platform Truth Social, Clarence Thomas.

So your attack against Twitter as being private in nature and as this private entity that should be held accountable, Wouldn't that translate now to use your own words against you, Clarence Thomas, when Trump now owns a platform, Truth Social, where he is sending these messages, which I believe are unofficial in nature?

Now, another important point is that Donald Trump created Truth Social when he was not in office, right?

It was after he lost the 2020 election.

He created the at Donald Trump account on Truth Social when he was not in office.

And so he's posting on there in a personal capacity, in my opinion.

And it's not like this is some town square where Donald Trump is conducting official presidential business.

And I would also point to...

get this the SEC filings that Donald Trump has made as it relates to Truth Social, where Donald Trump is basically an endorser of Truth Social.

For me to prove to you also that it's unofficial conduct, one of the things that Donald Trump has is a contract in his private capacity to promote Truth Social by posting on Truth Social, but it's not in a presidential capacity.

And if it was, I believe that they would have to make certain additional disclosures in their SEC filing.

So let me put on my law professor cap.

For some of you who don't know, I'm a law professor at USC when I'm not doing

Midas touch

and I'm a constitutional scholar.

So let me just go through my assessment.

You could agree, you could disagree.

Obviously by now, unfortunately by now, you know the post that Donald Trump made over the weekend where he sends this message.

Pam, referring to his Attorney General Pam Bondi, I have reviewed over 30 statements and posts saying that essentially same old story as last time, all talk, no action, nothing is being done.

what about comy adam shifty shift letitia they're all guilty as hell but nothing is going to be done then we almost put in a democrat supported u.s attorney in virginia with a really bad republican past a woke rhino who was never going to do his job that's why two of the worst dem senators pushed him so hard he even lied to the media and said he quit and that we had no case no i fired him and there is a great case and many lawyers and legal pundits say so.

Lindsay Halligan is a really good lawyer.

She's one of Donald Trump's personal lawyers, who now Donald Trump wants to appoint to be the Eastern District of Virginia prosecutor.

She's got no prosecutorial experience, like the most horrible choice.

He goes, Lindsay Halligan is a good lawyer and likes you a lot.

We can't delay any longer.

It's killing our reputation and credibility.

They impeached me twice and indicted me five times over nothing.

Justice must be served now, President DJT, and then Trump posts thereafter, or within like a minute, justice must be served now.

Exclamation point, exclamation point.

So my thesis that I'm arguing to you is that statements like this that Donald Trump makes that are incriminating in nature are not entitled to absolute immunity.

Now, Donald Trump's Department of Justice is not going to criminally prosecute him.

Pan Bondi's not going to criminally prosecute him.

So I don't expect anything under this regime to happen.

Let me be very clear.

But in a future administration that would look at Donald Trump's criminality, in a future assessment of a presidential crimes commission, the likes of which I've heard Democrats like Congressmember Swalo calling for after Donald Trump's out of office.

To me, this immunity argument that I'm making to show that there is no immunity, I think we have to analyze it.

And I want to share my thoughts with you now, just so it's always out there, no matter what happens to me or what happens wherever, that there is this legal analysis that's out there in the public.

and I want to go through it again very diligently.

So in 2019, the Second Circuit Court of Appeals, you know that we have district courts, then appeals courts, then the Supreme Court, and there are appeals courts in different regions,

different circuits throughout the country, right?

So the Second Circuit's like in the New York area.

So this case was called Knights First Amendment Institute versus Trump.

So it was heard at the district court first, then there was an appeal to the Second Circuit, and then it would have went up to the United States Supreme Court.

But Trump was out of office, so the case was moot.

In the district court, a federal judge found that it was improper for Donald Trump to block people on Twitter using his at real Donald Trump account.

The district court judge said that Donald Trump was using that account for both official and unofficial purposes, and that in this multi-purpose use by Donald Trump,

because of he was in office, he couldn't block the people

under his account.

But Trump's arguments, which I'll read to you soon, I'm private, unofficial capacity.

This is not my official account.

At POTUS is my official account.

So the Second Circuit Court of Appeals, here's the summary of the opinion.

Trump engaged in unconstitutional viewpoint discrimination by utilizing Twitter's blocking function to limit certain users' access to to a social media account, which is otherwise open to the public at large because he disagrees with their speech.

The First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude purposes from an otherwise open online dialogue because they express views with which

the official disagrees.

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Okay, so then what the United States Supreme Court did in 2021 after Trump lost the election is they vacated the entire case because it was moot.

Trump was in an office, so you didn't need to issue a judgment against Donald Trump Trump because he then was purely a private citizen.

Then he creates Truth Social.

He creates his private account.

But in 2021, the Supreme Court says the petition for a writ of certiorari, meaning the Supreme Court accepting the case, is granted.

The judgment, which is what I just read you, what the Second Circuit affirmed that the district court did, is vacated, means it goes away.

And the case is remanded to the Second Circuit with instructions to dismiss the case as moot.

So get rid of this case.

Trump's not in office.

We're not going to even hear Trump's arguments claiming that he was entitled to block because of unofficial capacity.

But Trump made the argument unofficial, unofficial, unofficial.

And so just so you can see what Donald Trump argued for, so you can see for yourself,

this is what it says over here in the Second Circuit case.

The president, he was president at the time, maintains that Twitter is a privately owned and operated social media platform that he has used since 2009 to share his opinions on popular culture, world affairs, and politics.

Since he became president, he contends the private nature of the account has not changed.

In his view, the account is not a space owned or controlled by the government.

Rather, it is a platform for his own private speech and not one for the private expression of others.

Because the account is private, he argues, First Amendment issues and forum analysis are not implicated.

Although Twitter facilitates robust public debate on the account, President Trump contends that it is simply the means through which he participates in a forum and not a public forum in and of itself.

And so Donald Trump then says, this is purely private.

You heard him say it there.

This is unofficial in nature, right that's what donald trump says so now let's look at what the supreme court ruled in 2024 in trump versus the united states where they granted him absolute immunity they said he's entitled to immunity for official acts but then it says as for a president's unofficial acts there is no immunity although presidential immunity is required for official actions to ensure that the president's decision-making is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct.

The separation of powers does not bar a prosecution predicated on the president's unofficial acts.

The first step in deciding whether a former president is entitled to immunity from a particular prosecution is to distinguish his official from unofficial actions.

In this case, no court has thus far drawn that distinction in general or with respect to the conduct alleged in particular.

It is therefore incumbent upon the court to be mindful that it is a court of final review and not a first review.

Critical threshold issues in this case are how to differentiate between president's official and unofficial actions and how to do so with respect to the indictment's extensive and detailed allegations covering a broad range of conduct.

The court offers guidance on those issues.

When the president acts pursuant to a constitutional and statutory authority, he takes official action to perform the function of his office.

Determining whether an action is covered by immunity thus begins with assessing the president's authority to take the action.

But the breadth of the president's discretionary responsibilities under the Constitution and laws of the United States frequently make it difficult to determine which of his innumerable functions encompassed a particular action.

The immunity the court has recognized therefore extends to the outer perimeter of the president's official responsibility, covering actions so long as they are not manifestly or palpably beyond his authority.

In dividing official from unofficial conduct, courts may not inquire into the president's motive.

Such a highly intrusive inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegations of improper purpose, nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.

Otherwise, presidents would be subject to trial on every allegation that an action was unlawful, depriving immunity of its intended effect, the court says.

And then as you go on to read more, what the court is very focused on, again, is in the unofficial conduct,

there is no immunity.

And then it goes on to say, although the president's immunity is required for official actions, it's not required when it comes to these unofficial acts that fall outside the outer perimeter, and that's for a court to make the inquiry.

So, what I would argue to you is that Donald Trump is saying that his acts are unofficial in nature,

and where Trump is saying it's unofficial in nature, that should be a persuasive fact.

Now, let me finally bring you to Justice Clarence Thomas's dissent right here, because I believe Justice Clarence Thomas was trying to be helpful

to Donald Trump, but ultimately I think this was back in 2021 and basically attack

Twitter, but now Donald Trump is the owner of Truth Social.

So Justice Clarence Thomas in 2021 says, when a person publishes a message on the social media platform Twitter, the platform by default enables others to republish the message or respond to it or other replies in a designated comment comment thread.

The user who generates the original message can manually block others from republishing or responding.

Donald Trump, then President of the United States, blocked several users from interacting with his Twitter account.

They sued.

The Second Circuit held that the comment threads were a public forum and that then President Trump violated the First Amendment.

by using his Twitter account to block plaintiffs.

But Mr.

Trump, it turned out, had only limited control of the account.

Twitter has permanently removed the account from the platform.

Then, Clarence Thomas goes on to say in his order that on the surface, some aspects of Trump's Twitter account resembles a public forum.

As designated, a public forum is property that the state has opened for expressive activity.

Mr.

Trump often used the account to speak in his official capacity and as a governmental official he chose to make

the comment threads on his account publicly.

Yet the Second Circuit's conclusion that Trump's Twitter account was a public forum is in tension with, among other things, our frequent description of public forums as government-controlled spaces.

Any control Trump exercised over the account greatly paled in comparison to Twitter's authority dictated in its terms of service to remove the account at any time for any or no reason.

Twitter exercised its authority to do exactly that.

Because unbrittled control of the account resided in the hands of a private party, First Amendment doctrine may not have applied to respondents' complaint of stifled speech.

In other words, Clarence Thomas is saying private party owned it.

So the idea of this being a public forum and Trump speaking in an official capacity likely doesn't hold.

So again, you take all of these concepts together.

Donald Trump has admitted before that his Twitter handle is unofficial.

Well, then if his Twitter handle is unofficial, clearly his Truth Social is unofficial.

Adding more weight to that is the fact that Truth Social is a company owned by Donald Trump.

It's publicly traded, but it's a private company owned by Donald Trump.

He's the one exercising control and dominion.

And then Donald Trump has contracts with Truth Social that he is like an endorser of it.

So Donald Trump is an endorser.

His social media posts are to help the company stock price and help the company function.

I would argue all of those things clearly take it outside the outer bounds of

official authority.

And then you have the fact that Donald Trump's conduct right there, in my opinion, calling upon Pam Bandi to do that and giving you my opinion, is criminal in nature.

So a future presidential crimes commission looking to get around immunity, look at this Truth Social post.

And by the way, it's not unique to that post.

To me, other crimes being committed on Truth Social are not subject to any absolute immunity under the Supreme Court's ruling.

Tell me what you think, but that's my constitutional analysis.

Thanks for watching.

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