If Donald Trump is elected, before he’s sworn in as President on Jan. 20 he’ll face a different kind of swearing in that few Commanders in Chief have experienced: that of a trial witness in one of the many open civil lawsuits against him.
“This is an extremely unusual situation,” says Stephen Kaufman, who specializes in political and election law and worked as a recount attorney for the Gore-Lieberman campaign. “Certainly no presidential candidate in modern times has potentially come to the Office of President with such a litigation cloud hanging over his head.”
Trump is set to go to trial Nov. 28 over claims that Trump University is a scam. But – unless the jury’s decision is later appealed – that case wouldn’t be affected by a potential presidency. However, dozens of other pending matters involving everything from golf club membership fees to underpaid employees to inciting harassment could be affected if the candidate were to take office. (It’s worth noting: all of this would also apply to Hillary Clinton, although there have been markedly fewer civil cases filed against her.)
So what happens if the President of the United States is sued? In short, the answer is: it depends.
The President does have some immunity, which was bolstered when then-President Richard Nixon was sued for allegedly firing an employee in retaliation for unfavorable congressional testimony. In its 1982 decision in Nixon v. Fitzgerald, the Supreme Court held that “In view of the special nature of the President’s constitutional
office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”
The idea behind the ruling is that facing litigation for acts done as President would impede executive action.
But Kaufman says a President such as Trump who is not known to mince words in private conversations or public speeches could push the limits to see exactly how far that immunity stretches. Considering the hypothetical scenario that Trump were to defame someone during the State of the Union address, Kaufman asks, “Does holding the office of President give someone the ability to say whatever they want about whomever they want?”
One thing is certain: immunity wouldn’t cover anything prior to his election.
“Taking the office would not protect Mr. Trump from lawsuits that have been filed against him already or lawsuits that could be filed against him for civil matters that arose before he became President,” says Kaufman. “Having said that, there would be a mountain of logistical issues in trying to pursue a civil claim against a President.”
Kaufman says those challenges range from service of process to scheduling depositions.
There’s very little precedent for suing the President and, interestingly, the case law at hand is courtesy of former President, Bill Clinton.
Clinton was sued by Paula Jones in 1994, while he was serving his first term in the White House. She alleged that he sexually harassed her while serving as Governor of Arkansas. Clinton’s attorneys argued that in all but the most exceptional cases any litigation against the President should be deferred until he left office. But the Supreme Court disagreed.
“Indeed, if the Framers of the Constitution had thought it necessary to protect the President from the burdens of private litigation, we think it far more likely that they would have adopted a categorical rule than a rule that required the President to litigate the question whether a specific case belonged in the “exceptional case” subcategory,” wrote Justice John Paul Stevens at the time. “In all events, the question whether a specific case should receive exceptional treatment is more appropriately the subject of the exercise of judicial discretion than an interpretation of the Constitution.”
So, while the President can be sued while in office for things done outside of the job, any court would likely stay the case until the end of his or her term.
“I think following the Clinton v. Jones case, any court that didn’t act very deferentially would likely be reversed by an appeals court or the Supreme Court,” says Richard Hasen, chancellor’s professor of law and political science at the University of California, Irvine.
“It’s not clear what would happen with a criminal case, whether that would be treated differently,” says Hasen, adding that having to think about lawsuits facing a presidential candidate is strange but “the unfortunate reality.”