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President Must Tape Deposition for Trial Over 2015 Protest at Trump Tower

Charlie Savage
President Donald Trump speaks during a meeting with Australian Prime Minister Scott Morrison in the Oval Office of the White House, Friday, Sept. 20, 2019, Washington. (AP Photo/Evan Vucci)

NEW YORK — A Bronx trial judge on Friday ordered President Donald Trump to provide videotaped testimony for an upcoming trial over a lawsuit brought by protesters who say that his private security guards assaulted them on a public sidewalk in front of Trump Tower and stole a protest sign.

The ruling raises the highly unusual constitutional spectacle of a state-level judge commanding a sitting president to testify for a trial against his will. But Justice Doris Gonzalez of the Bronx Supreme Court wrote that Trump’s testimony was necessary, rejecting a request by his legal team that she quash a subpoena. The trial is scheduled to start on Sept. 26.

“More than 200 years ago our founders sought to escape an oppressive, tyrannical governance in which absolute power vested with a monarch,” Gonzalez wrote. “A fear of the recurrence of tyranny birthed our three-branch government adorned with checks and balances.”

“No government official, including the executive, is above the law,” she added.

The dispute centers on a protest in September 2015 in front of Trump Tower in Manhattan, during Trump’s first presidential campaign. Five plaintiffs in the lawsuit were protesting in front of the building. Two were dressed in attire mimicking Ku Klux Klan robes. Others carried large campaign-style signs saying, “Make America Racist Again.”

In an ensuing confrontation, some parts of which were captured in videos, Trump’s private security detail inaccurately told the protesters that the sidewalk in front of Trump Tower was private property and tried to force them to move away from it.

Trump’s security director at the time, Keith Schiller, who later had a stint in the White House as an aide to Trump, ripped away two of the large protest signs and tried to carry them into the building. When one of the protesters, Efrain Galicia, pursued him and grabbed one of the signs, Schiller struck him in the head, video shows.

Gonzalez noted that the Supreme Court ruled in 1997 that presidents did not have temporary immunity for acts that were done before taking office and were not related to their official duties. In that matter, a federal lawsuit by Paula Jones against President Bill Clinton, Clinton ultimately submitted to a deposition, but the case never went to trial.

Friday’s ruling also pointed to one from a New York appeals court in March that rejected a claim by Trump’s legal team that, as president, he was immune from state lawsuits under the Constitution. That ruling has permitted a defamation suit — from a former contestant on “The Apprentice” whom Trump called a liar after she accused him of groping her — to proceed.

The legal team representing Trump and the Trump Organization in the protest case may appeal Friday’s ruling, and did not immediately respond to a request for comment. But Roger Bernstein, a lawyer for the plaintiffs, praised the decision, saying it was “clearly correct” and that Trump’s “testimony will be highly relevant to the trial.”

Walter Dellinger, who served as acting solicitor general in 1997 and unsuccessfully urged the Supreme Court to delay Jones’ lawsuit until after Clinton was no longer president, said the trial judge would need to accommodate Trump’s schedule. That could mean booking his testimony during a weekend when the president would otherwise be playing golf and being open to rescheduling it if there is a crisis, he said.

But, Dellinger, a law professor at Duke University, said the chances were good that Trump would end up having to submit to videotaped questioning.

“Unless the Supreme Court were to abandon its unanimous decision in Clinton against Jones,” he said, “the president’s testimony should be forthcoming.”

While rare, there are other examples of a sitting president testifying for a trial. For example, President Gerald Ford gave a videotaped deposition in the criminal trial of Lynette Fromme, who had tried to assassinate him. But it is not clear whether there are any prior historical examples of a president testifying involuntarily for a state trial.

During an earlier stage in the pretrial proceedings in the Trump Tower protest lawsuit, another judge rejected a request by the plaintiffs to depose Trump, and his legal team had asked Gonzalez to similarly quash a subpoena for the president’s testimony at the trial.

But she refused to do so, noting that the lawsuit does not involve Trump’s official actions as president and that questions of fact are in dispute about the extent in which he exercised control over his private security detail.

“As the record appears before this court, President Trump’s relationship with the other defendants is now central to plaintiffs prosecution of their claims,” she wrote, citing a legal doctrine that can hold employers responsible for wrongdoing by their employees in the course of their jobs. “As such, his testimony is indispensable,” she added.

This article originally appeared in The New York Times.


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