//  5/1/17  //  Commentary

Cross-posted from Dorf on Law

Thirty-five years ago, in Nixon v. Fitzgerald, the Supreme Court held that the president has absolute immunity against civil damages litigation for acts undertaken in his official capacity. Twenty years ago, the Supreme Court rejected Bill Clinton's argument that a sitting president should enjoy temporary immunity from all civil lawsuits while he is president, including lawsuits seeking to recover for pre-presidential acts. Refusing to extend Fitzgerald in this way, the Court rejected Clinton's argument in Clinton v. Jones. The justices reasoned that answering such˙a lawsuit would not unduly distract the president from his official duties.

Clinton v. Jones looks like a potentially very damaging precedent for President Trump and his lawyers as they battle the various civil cases pending against him. How can the president respond?

One potential way around Clinton v. Jones would be to ask that the case be overruled on the ground that its underlying assumptions have proven false. Maybe the Jones litigation, the Monica Lewinsky imbroglio, and the impeachment proceedings show that civil litigation is a burdensome distraction after all.

However, there are two difficulties with this approach. First, only the Supreme Court can overrule its own precedents, so even if this argument ultimately works for Trump, in the meantime he will be subject to litigation--including potentially very damaging discovery--in the myriad lawsuits.

Second, it is not obvious that Clinton v. Jones was actually wrongly decided. Neither George W. Bush nor Barack Obama was distracted by litigation involving pre-presidential conduct. Perhaps the lesson of the aftermath of Clinton v. Jones is not that presidents need immunity from civil litigation over such conduct but that people who behave as heedlessly of others as Bill Clinton and Donald Trump do get what they deserve, even if they end up as president.

An alternative way around Clinton v. Jones would be to pretend the case held the opposite of what it did. Amazingly, this is the approach of Trump's lawyers in the lawsuit filed by three protesters who were physically attacked at a Trump campaign rally. Needless to say, while Trump apparently can get away with lying constantly to the public, lying to a court about the content of a case is not a winning strategy. This is an "alternative" approach only in the sense that "alternative facts" are facts.

A third line of attack would be to argue that Clinton v. Jones does not apply in state court. Obviously, this approach won't help Trump in the federal court cases against him, but, as I explained in a blog post in January, it could work in state court litigation because the Supreme Court reserved the question whether a president might have temporary immunity in state court against civil litigation arising before he became president. And indeed, in a motion filed in late March, Trump's lawyers raised just this issue.

How should the open question be resolved? Is there any reason why a president should have temporary civil damages immunity (while he is president) for acts committed before he became president when sued in state court but not when sued in federal court?

Sure. Because federal courts are federal organs they can be trusted to schedule discovery and hearings in a way that minimizes disruption of the president's ability to perform his functions. By contrast, state courts are more likely to be subject to local political influence or to deprioritize federal functions. Although state courts are generally competent to adjudicate federal claims, we might think that the special national sensitivity of presidential priorities means that they should not adjudicate claims against the president.

Yet even if there is thus some reason to think that state courts are a sub-optimal forum for hearing complaints against the president, the better argument goes in the other direction. If the worry is state court prejudice or insufficient sensitivity to federal interests, the answer would appear to be a right of the president to remove a case filed in state court to federal court, not a right to immunity from suit during his presidency. And where the president is sued on federal law claims in state court or on state law claims by a diverse plaintiff outside his state of residence, the president already has a right of removal.

But what about a case where, say, a citizen of state x sues the president, a citizen of state y, in state court in state y? Or where the plaintiff suing in state court on a state law claim resides in the same state as the president? The president lacks the legal ability to remove to federal court in such cases. Does he need immunity for these cases? And if so, does that justify a judge-made rule allowing immunity in state court but not in federal court?

If so, that would invite what Chief Justice Earl Warren famously called "the inequitable administration of the laws" in violation of one of the two goals of the so-called Erie doctrine. Whether a plaintiff can sue the president for conduct predating his presidency should not depend on the fortuity of whether the president and the plaintiff reside in different states (yes, because she can sue in federal court, where Clinton v. Jones applies) or the same state (no, because she can only sue in state court, where, by hypothesis, the president has immunity). To avoid that inequitable outcome, the immunity rule should be the same regardless of whether the president is sued in state court or federal court.

Bottom Line: Unless and until the Supreme Court overrules Clinton v. Jones, that rule is that the president lacks immunity, regardless of where he is sued. Thus, Clinton v. Jones is indeed very damaging to Trump's defense against the various lawsuits against him on the basis of his pre-presidential conduct


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