Three days before Donald Trump took the presidential oath of office, Summer Zervos—a woman who had participated on Mr. Trump’s reality-TV show, The Apprentice—filed suit against him in New York state court, alleging that he had defamed her in responding to her accusations of sexual misconduct, made during the 2016 presidential campaign. Last week, Mr. Trump’s lawyers (who do not work for the federal government but who represent him personally) filed papers in court announcing their intent to seek a temporary dismissal of the lawsuit during the time Mr. Trump is serving as president, so that he may attend to his important official duties as leader of the nation and the free world.
How likely is such a motion to succeed? Many news analysts seem dubious, based on the fact that similar arguments were rejected by the U.S. Supreme Court two decades ago in Clinton v. Jones. There, President Bill Clinton argued that the federal civil damage lawsuit filed against him by Paula Jones for sexual harassment should have been delayed until after he left the Oval Office, on the ground that discovery and other aspects of the civil litigation could distract him and his administration from fulfilling constitutional duties. The Court, by a 9-0 vote, rejected the president’s claim for executive immunity, reasoning that a wise and sound district court judge can manage discovery and other aspects of a civil lawsuit so as to prevent it from disrupting the affairs of the executive branch.
The key question thus becomes: what reason is there to believe the courts (including and especially the Supreme Court) would resolve the Trump case differently than the Clinton matter?
I see two potentially important differences. First is an important doctrinal observation/reservation in the Jones ruling itself. Even as the Court rejected Bill Clinton’s gambit to temporarily block the discrimination claims against him in federal court, the justices observed:
Because the Supremacy Clause makes federal law “the supreme Law of the Land,” any direct control by a state court over the President, who has principal responsibility to ensure that those laws are “faithfully executed,” may implicate concerns that are quite different from the interbranch separation-of-powers questions addressed here.
In other words, a case against a sitting president being litigated in state court may be different from one in federal court. Why might the court in which the case is being processed be dispositive? One reason might be the structural differences between federal and state court compositions. Federal judges are appointed by a president subject to senate approval, and thus are likely to have a national, rather than state, orientation and sensitivity. More important, federal judges hold tenure for life (or rather, until they die, resign, or are impeached for “high crimes and misdemeanors), whereas state court trial judges in most states must stand for election or reelection with the local voters. It is not hard to imagine a president who is sufficiently unpopular in certain localities in the country (even if he is popular nationwide) that a local judge who must face local campaign donors and voters might feel pressure, in managing the case, not to cut the president any leeway. Thus, to the extent that the rationale behind the Jones case was a deep faith in the capable and politically insulated federal district court judge, that rationale may not apply with the same force in the state court setting. (As an aside, I note that Congress could solve this problem by authorizing presidents to remove a case filed in state court to federal court instead, regardless of the nature of the lawsuit. But Congress hasn’t taken up the invitation the justices issued in Jones to step in to address civil litigation against sitting presidents.)
The second difference between Bill Clinton’s case and Donald Trump’s is the passage of time and the sense the current Supreme Court might (should) have that it erred in Jones itself. To see that possibility, we ought first to locate the Clinton v. Jones case in historical context. There have been three landmark cases issued by the Supreme Court during the last generation or two concerning the extent to which the presidency and the executive branch should be immune from legal and judicial processes and orders that would require disclosure of executive information and/or consumption of executive time: the famous Nixon Tapes case, United States v. Nixon; the so-called ‘‘Independent Counsel’’ case, Morrison v. Olson; and Paula Jones’s case against President Bill Clinton, Clinton v. Jones. In each case, the president and his underlings made plausible arguments that the need for executive secrecy and autonomy militated against subjecting executive branch officials to ordinary legal processes. And—perhaps to avoid the impression in a post-Watergate world that the president is above the law—the Supreme Court rejected all of these plausible claims of executive immunity or privilege, by an aggregate and whopping margin of 24–1 votes. The imperial presidency is surely dead.
But maybe enough time has passed—and subsequent events have occurred—so that we are not deciding cases quite as much in Watergate’s shadow. One possible hint of this might be gleaned by comparing Jones to a case decided this century, Cheney v. United States District Court for the District of Columbia.
The Cheney litigation began when various public interest groups sued Vice President Richard Cheney and the National Energy Policy Development Group (NEPDG) that President George W. Bush directed him to head. The plaintiffs, relying on the Federal Advisory Committee Act (FACA), sought to obtain records of the group’s meetings. FACA’s disclosure requirements were enacted by Congress to enable the public ‘‘to monitor the ‘numerous committees, boards, commissions, councils and similar groups [that] advise officers and agencies in the  Federal Government,’ and to prevent ‘wasteful expenditure of public funds’ that may result from their proliferation.’’ Vice President Cheney and other defendants objected to disclosure of these records and moved to dismiss the case against them, asserting that application of the FACA to the vice president under these circumstances would be problematic in any event under separation-of-powers/executive privilege-type doctrines.
The Supreme Court ruling did not fully resolve these constitutional questions on the merits, but the Court did send the case back to the court of appeals intimating that the lower courts ought to be more open and attentive to the arguments that Vice President Cheney was making about the need for secrecy. As the Court put it: “All courts should be mindful of the burdens imposed on the executive Branch in any future proceedings. Special considerations applicable to the President and the Vice-President suggest that the courts should be sensitive to requests by the Government [to minimize interference with executive functions].”
More specifically, the Court seemed to adopt a very different attitude about how easily federal district judges could manage litigation against high-level executive branch officers. Let us start by reiterating what the Jones Court said:
[President Clinton] contends that—as a byproduct of an otherwise traditional exercise of judicial power—burdens will be placed on the President that will hamper the performance of his official duties. . . . Petitioner’s predictive judgment finds little support in either history or the relatively narrow compass of the issues raised in this particular case. As we have already noted . . . only three sitting Presidents have been subjected to suits for their private actions. If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency. As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner’s time. . . . Most frivolous and vexatious litigation is terminated at the pleading stage or on summary judgment, with little if any personal involvement by the defendant. Moreover, the availability of [Rule 11] sanctions provides a significant deterrent to litigation directed at the President in his unofficial capacity for purposes of political gain or harassment. History indicates that the likelihood that a significant number of such cases will be filed is remote. . . . [And] we have confidence in the ability of our federal judges to deal with . . . these concerns.
Less than 10 years later, in the Cheney ruling, perhaps with Monica Lewinsky (who, it should always be remembered, was discovered as a result of the Jones litigation), independent counsel Ken Starr and the impeachment episode forefront in the justices’ minds, the Court had a very different message about the dangers civil litigation poses to the ability of Oval Office operations:
Although under Federal Rule of Civil Procedure 11, sanctions are available, and private attorneys owe an obligation of candor to the judicial tribunal, these safeguards have proved insufficient to discourage filing of meritless claims against the Executive Branch. In view of the visibility of the Offices of the President and the Vice President and the effect of their actions on countless people, they are easily identifiable targets for suits for civil damages.
The Cheney Court did not seem to even notice the tension between its analysis and that of the Jones Court (or the Morrison Court, for that matter.) But given the benefit of reflection on events of the late 1990s, combined with the 2016 state of politics and the increased prevalence of businesspeople (such as Cheney and Trump) in high elective office, there is reason to think (hope) that the Supreme Court may be more receptive to sensible arguments about temporary immunity for presidents, regardless of who occupies the White House.
“The imperial presidency is surely dead.”
Well, no. But, good article.