As president of the United States, Donald Trump gets to live in the White House, ride in “The Beast,” and fly around the world on Air Force One. But for a famously litigious businessman-turned-politician, running the country offers another attractive benefit: legal immunity.
The president cannot face lawsuits related to what he does in an official capacity while in office, the Supreme Court has ruled in multiple cases. Instead, anyone who feels wronged by a presidential action needs to sue the U.S. government as a whole.
But what Trump did before he moved into the White House is fair game — for now. His legal team is trying to expand the legal exceptions already afforded to the president, potentially putting ongoing lawsuits against Trump in limbo.
“[His lawyers] are kind of just throwing every argument they have at the wall and seeing what sticks,” said Dan Mahafee, senior vice president and director of policy at the Center for the Study of the President and Congress. “They’re certainly looking for novel explanations.”
The Supreme Court speaks
While legal immunity may sound like a terrifying power, the Supreme Court decided in a landmark 1982 decision that former President Richard Nixon had been entitled to it.
After A. Ernest Fitzgerald, then a civilian analyst with the Air Force, testified before Congress in 1968 about billions of dollars in cost overruns and other problems with the C-5A transport plane, Nixon demanded the Defense Department “get rid of that son of a bitch.” A Civil Service commission subsequently decided Fitzgerald was unjustly terminated, and he sued Nixon for damages.
In a 5-4 decision, the Supreme Court ruled that the commander in chief had “absolute immunity” from lawsuits related to his official acts. The justices, however, didn’t address (and still haven’t) presidential immunity from criminal charges, since no president has ever faced them in court.
“Because of the singular importance of the president’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government,” Justice Lewis F. Powell Jr. wrote for the majority.
In 1997, the Supreme Court had a chance to expand on that decision. Three years before, Paula Jones had sued President Bill Clinton for sexual harassment, alleging that when she was an Arkansas state employee, she had been punished for rejecting advances from Clinton, who was the state’s governor at the time. But lawyers for Clinton argued that “absolute immunity” should also cover lawsuits concerning a president’s actions before he took the oath of office. The man needed to run the country, the argument went, and litigation would only distract him.
In a unanimous decision in Clinton v. Jones, the Supreme Court ruled that civil lawsuits brought against a president that are unrelated to his official actions can proceed.
“The argument was that this will not be a big problem for the president,” said George Edwards, a political science professor at Texas A&M University and editor of “Presidential Studies Quarterly.” “We have to just follow the normal routines of the law, and this will only take a small amount of the president’s time.”
The justices probably didn’t foresee President Donald J. Trump.
Arguing for immunity
Two weeks before Election Day, 75 ongoing lawsuits in both state and federal court named Trump as a defendant, according to USA Today. Political scientists and historians noted he was involved in more litigation than than any other presidential candidate in history.
Since taking office, Trump has settled several of these suits, including fraud claims against Trump University, the president’s now-defunct for-profit education company, and a contract dispute with celebrity chef Geoffrey Zakarian. One ongoing lawsuit, however, has gotten the lion’s share of the attention: Zervos v. Trump.
After Trump’s infamous “Grab ’em by the pussy” tape surfaced in October, Summer Zervos, a contestant on “The Apprentice” in 2007, came forward to accuse Trump, then host of the NBC reality series, of sexual assault. When Trump denied the allegations and called her a liar, Zervos slapped the president-elect with a defamation suit in New York, just four days before his inauguration.
Trump’s longtime lawyer Marc Kasowitz responded with an argument that could reshape the powers of the presidency. He suggested that the Constitution’s Supremacy Clause, which establishes the sovereignty of federal law above that of states, prevents the president from being sued in state court. Trump’s lawyers also claim he has complete immunity from a lawsuit brought by three protesters who allege Trump incited members of the crowd at a Louisville, Kentucky, campaign rally who then beat the protesters.
In Clinton v. Jones, the Supreme Court found that the president can’t claim immunity for his actions before taking office — but Jones originally brought the case in federal court. The justices didn’t rule out suing the president in state court, but they did raise concerns about that possibility in their decision.
“It’s a question of federalism — the states interfering with the president’s ability to do his job,” said Adam Winkler, a professor of constitutional law at the University of California at Los Angeles School of Law.
While a decision in Trump’s favor wouldn’t change whether people can sue the president, it could limit where they can sue him. To bring a lawsuit in federal court, plaintiffs need the proper standing. It’s easier to find standing to sue in state court, and there are a lot more state courts where plaintiffs could bring lawsuits against the president.
“The potential [in state courts] is gigantic,” Edwards said. “Because there’s so many courts and potential cases, it’s harder to make the argument that, ‘OK, this won’t be a burden for the president as he tries to carry out his duties.’”
Then again, because federal courts can hear an unlimited number of cases, there may not be that much difference. And federal law grants federal officers, including the president, removal jurisdiction, or the ability to transfer a case from state to federal court. It’s doubtful then that Clinton v. Jones wouldn’t also apply to state courts, according to multiple legal experts. If the judge allows Zervos’ case to continue, it could pave the way for more lawsuits against Trump at the state level.
“We have the unique situation today of a president who has refused fully to divest himself from all of his prior business dealings,” Stephen Vladeck, a constitutional and national security law professor at the University of Texas School of Law, wrote in an email. “It would be pretty remarkable if winning the presidency became a get-out-of-all-pending-litigation-free card.”