Author: Alan

Trump’s lawyers can argue that the Federal Rules of Civil Procedure violate the First Amendment

Trump’s lawyers can argue that the Federal Rules of Civil Procedure violate the First Amendment

How Trump Could Resist the Jan. 6 Panel’s Subpoena Power: Legal and Constitutional Implications

The Federal Rules of Civil Procedure, like the Federal Rules of Criminal Procedure, are based on the text of the Constitution, which itself is grounded in the Bill of Rights, as part of the First Amendment. In civil cases, the rules require the government to disclose the evidence it plans to use to obtain a judgment and to give the moving party the opportunity to examine it and to rebut it. When it comes to civil litigation, the government has an “inadvertent disclosure” defense; if it learned of the information by “accident” it will not have to reveal it, though it may later use it against the moving party.

President Donald Trump in a tweet on Saturday morning denied he would obey a recent court order to appear at a deposition by the House Intelligence Committee. It’s a fascinating question—a question about which there is no answer yet. Trump may not mind that he is being deposed by the committee—the depositions are voluntary, with the committee being entitled to any evidence the president does not object to—but it is a little late in the day to object. The president has already testified in the depositions of the Democratic chairman of the House Intelligence Committee, Adam Schiff, and of other officials of the intelligence community, and has given several statements to that committee.

The depositions by Trump’s lawyers will be voluntary, but only for the duration of the depositions. The president must appear for a deposition as a condition of office, and that condition was enforced by a presidential power, a power the Constitution itself gives to the president. The depositions by Trump’s lawyers will be held in compliance with the rulemaking procedure embodied in the Federal Rules of Civil Procedure, and the administration’s response to the rules is bound to be given under oath.

The question is whether Trump’s lawyers can argue that the rules cannot be enforced as written because they violate the president’s rights because they violate the First Amendment. That would be a novel argument. It is not a claim that would withstand constitutional scrutiny, however, and I won’t try. My argument instead will be that the legal arguments that the president

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