The problem, at least as far as how I view the CAIR/Wuterich rulings, is that the D.C. Circuit doesn't care about the underlying content of the communication. What they look at is the overarching function; in this case, responding to media reports.
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Just as Murtha making comments to the media about Wuterich fell within the scope of Murtha's employment (regardless of what he said), Trump responding to media reports about Stormy's allegations could be construed as falling within the scope of his employment.
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I know that not everyone agrees with my assessment. I believe
@steve_vladeck has expressed some skepticism about it.@MarkSZaidEsq -
Hmm. Well, I'd think you could argue that, in those cases, the court didn't need to reach the issue because the response was about something clearly within the scope of the person's job. (But I guess I'll need to read through the decisions now!)
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Here is the Murtha ruling. https://caselaw.findlaw.com/us-dc-circuit/1262084.html … The Valerie Plame case had a similar ruling a bit later.
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"As in Ballenger, the underlying conduct-interviews with the media about the pressures on American troops in the ongoing Iraq war-is unquestionably of the kind that Congressman Murtha was employed to perform as a Member of Congress." Seems distinguishable from Trump's tweet.
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Thin thin line.
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The broader context of Murtha's remarks were about policy: "...it is hard to fathom how Congressman Murtha's discussion of grave public policy concerns relating to the war in Iraq could ever fall outside the scope of his employment."
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I'm not quite sure how you jump from foreign policy-related issues to the tweets.
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