Short Post on Social Media Website Affects Presidential Litigation
The Forty-Fifth President of the United States uses Twitter to dramatic effect. Tweets from the president’s personal Twitter account have been at the center of litigation even before his victory in the 2016 election. One of the first legal challenges against President Trump involving Twitter was an action seeking redress for the his habit of “blocking” Twitter users whose political speech he disagreed with.[1] The district court found the President’s actions violated the First Amendment.[2] The government has since appealed the decision to the United States Court of Appeals for the Second Circuit.[3]
On August 20, 2018, President Trump tweeted “I hope John Brennan, the worst CIA Director in our country’s history, brings a lawsuit.”[4] That same day, the New York Times reported on the contents of the tweet, observing that, “It is not entirely apparent why Mr. Trump and his lawyers would want to wage another legal battle at the moment.”[5] The reasoning behind the invitations to bring litigation against the President remains with him and his attorney, Rudolph W. Giuliani, who authored a tweet in a similar vein.[6] Mr. Giuliani later stated that his tweet was in jest, but could not say the same regarding the President’s.[7] What remains clear is the impact that the President’s tweets can have on the outside world’s view of the inner workings of his mind.
The President’s tweet and the New York Times article resurfaced in a November 2, 2018 memorandum opinion in the District Court of Maryland.[8] The case was brought by the District of Columbia and the State of Maryland against the President “based on his alleged violations of the Foreign and Domestic Emoluments Clauses of the U.S. Constitution.”[9] The government sought interlocutory appellate review of certain questions of law, as well as a stay of all discovery proceedings pending the appeal.[10] In arguing for its position, the government “relie[d] heavily on the proposition that the Court’s orders should be certified because they present extraordinary circumstances dealing with issues of first impression” and that allowing civil discovery would be “a burdensome and distracting enterprise.”[11]
In the course of denying both motions brought on behalf of the President, Judge Messitte cites the New York Times article about the President’s tweet aimed at Mr. Brennan, writing that “it bears noting that the President himself appears to have had little reluctance to pursue personal litigation, despite the supposed distractions it imposes upon his office.”[12] The present case before Judge Messitte arguably does not turn on what the President tweets, but the fact that a past tweet and accompanying news article contributed even slightly to the judge’s decision on the motions should serve to further emphasize how impactful the social media posts can be to future litigation.
The president’s short bursts of text on Twitter have become commonplace among newscasts and newspaper articles, but their presence as support for a judicial opinion should be a wake-up call to the President and his staff as to the severity and potential impact of their content.
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