In 1982, the U.S. Supreme Court held that the President of the United States “is entitled to absolute immunity from damages liability predicated on his official acts” (which includes pretty much everything the president says or does while in office). This is how Trump gets away with his constant lying, defamation, threats, interference with business relationships, and the like: he is absolutely immune, so no one can haul him into court. And this absolute immunity extends forever, even after Trump leaves office.

As Bill Clinton is painfully aware, however, there is no immunity for a president’s “unofficial” acts, including acts taken before the presidential term began. So Kaepernick’s lawyers have come up with an interesting approach:

“In August 2016, as a Republican presidential candidate, Trump went on Seattle radio station KIRO and remarked of Kaepernick protesting during the national anthem: ‘I think it’s personally not a good thing, I think it’s a terrible thing. And, you know, maybe he should find a country that works better for him.’ That could prove to be significant, because it can be framed as the ‘clock-starting’ moment when Trump’s interference in Kaepernick’s livelihood first began, then extended and became amplified into the presidency.”

Under this theory, because Trump first attacked Kaepernick before he was president, all of his subsequent attacks--including those after he became president--relate back to the initial attack and are thus part of a continuing wrong that is outside the scope of Trump’s presidential immunity.

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