An Expert Explains Why It Would Be So Hard to Sue President Donald Trump

After he enters the White House, Trump acquires a whole lot of immunities.

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Nov 11 2016, 10:25pm

Donald Trump with Florida Attorney General Pam Bondi—who his foundation once gave money to in violation of IRS rules and who is now on his presidential transition team—in the rain in April. (AP Photo/Gerald Herbert, File)

A lot of things make Donald Trump—who is about to be president—an unusual commander-in-chief, and one is that he has 75 pending lawsuits against him. One of those suits, which alleges that Trump funded a fraud-based business seminar for six years, has a trial date this month, meaning the president-elect may have to testify in court before he is sworn in on January. (As of Friday, it's looking more likely that he'll wind up settling in that case.)

Famous people attract all kinds of nonsense lawsuits from unhinged people—one dude recently sued the Democrats and the Republicans, including Trump, for all being puppets of the Illuminati. But Trump has suits pending against him that sound a lot more credible than that, like the one saying a golf club he owns collected membership fees from some people while not allowing them to use the facilities. (Trump has said that his son Eric runs the club).

Then of course there's the huge number of informal complaints relating to Trump's alleged habit of sexually assaulting and demeaning women. If those turn into lawsuits—and at least one looks like it may—the ensuing legal proceedings might bog the Trump administration down in tabloid spectacle.

To find out more about how lawsuits against the most powerful person in the country work, I got in touch with University of Texas law professor and political law pundit Stephen Vladeck. He reminded me that Americans have a rich tradition of suing our presidents, but he also predicted that individuals trying to sue over Trump's government policies will be one of the biggest stories to watch over the next four years.

VICE: If Trump has to testify in the Trump University case, does being president-elect give him any special priveleges?
Stephen Vladeck: Nope. There's no special protection that a president-elect has as compared to say a private person, or a major party nominee. All the privileges and immunities that come with being president don't actually kick in until you're actually the president.

But do you think he'll get some kind of preferential treatment anyway?
Let's be honest: Judges are humans. There's no question that the status of the president-elect will surely weigh on the judges as they consider threshold procedural questions in these cases. The point is that none of those are formal.

"He has something called 'absolute immunity' which means he cannot be sued [for] anything he does in a personal capacity while he's president."

What about the inevitable litigation that will crop up after he takes the oath of office?
The critical distinction that the Supreme Court has drawn is between immunity from suits for conduct undertaken while he's president, and his immunity from suits for conduct that predates his presidency.

What happens if he's sued for something he does while he's president?
He has something called "absolute immunity" which means he cannot be sued [for] anything he does in a personal capacity while he's president.

When you say "in a personal capacity," are you saying that doesn't include lawsuits over his policies?
You wouldn't be suing him personally. You'd be suing the United States.

What's something the sitting president could do "in a personal capacity" that's protected by that immunity?
If President Trump were to, y'know, sexually harass a White House employee. Now, that employee might have a civil service–related claim, but she's not gonna have a personal tort claim against President Trump.

Can she sue him after his term is up?
He retains the immunity after he leaves office for conduct undertaken while he's president. This all comes from a 1982 case called Nixon v. Fitzgerald. A former employee tried to sue [President Nixon] for retaliation.

What about lawsuits over things President Trump allegedly did before he took office?
The Supreme Court in 1997 distinguished Nixon v. Fitzgerald in a case called Clinton v. Jones—the Paula Jones case—and held unanimously that the absolute immunity recognized in the Nixon case does not extend to actions taken by the president prior to assuming office. It was because of Clinton v. Jones that the deposition was taken in which President Clinton lied. And then all hell broke loose.

I want to touch on that, because Clinton eventually got impeached because of that lie. Could the fallout from any of Trump's impending legal problems result in his impeachment?
"High crimes and misdemeanors"—the constitutional grounds for impeachment—is really not a precise or well-understood term, and frankly encompasses whatever conduct two-thirds of the House and Senate agree that it encompasses.

So just being orange could be grounds for impeachment if two-thirds of the House and Senate said so?
...Or if he was a Taylor Swift fan. There are very good histo-political reasons why, historically, Congress has construed that term much more narrowly. But ultimately what that term means is up to Congress and Congress alone in that context. Congress has oftentimes relied on the view that "high crimes and misdemeanors" is a special and narrow category of offenses, [so] it's unhelpful to conflate that with civil and criminal liability. It's unique in the sense that it's all a creature of what Congress wants it to be.

"Once he becomes president, Donald Trump basically is the federal government, and there's lots of ways to sue the federal government when it violates your rights."

Back to lawsuits: Even if something goes to court, he's the president, so is it safe to doubt that any trial would be normal?
Clinton v. Jones did suggest that courts should think carefully about how they conduct such litigation to minimize the burden on the president's ability to discharge his duties, including perhaps in some cases putting litigation on hold for some time, perhaps even the entire duration of the presidency. But the Constitution does not require that. Only Justice [Stephen] Breyer, who wrote a separate concurrent opinion in Clinton v. Jones, thought that the Constitution might have been offended by the possibility of civil litigation interfering with the president's duties.

But what if I wanted to sue Trump for damages his government did to me or my family?
Once he becomes president, Donald Trump basically is the federal government, and there's lots of ways to sue the federal government when it violates your rights. But I think one thing people are gonna find out if they don't know already is that the Supreme Court has been remarkably successful for the last 35 years at making harder for private individuals to sue the federal government. My hope is that that won't come back to bite us in the next four or eight years, but I'm not optimistic.

So that case where those kids are suing President Obama over global warming isn't looking good?
We're a long way away from it turning into damages.

Why?
There are so many procedural obstacles that courts and to a lesser degree Congress have imposed that allow courts to get rid of these cases without actually ruling on the merits—without actually saying whether it was lawful. The result of that is a world in which there's less and less new law made every day by the federal courts. Whether that new law is pro-government, or pro-plaintiff, it's just not happening either way. And that's going to become more and more apparent when the government is taking novel action against particular groups of its citizens, or novel inaction to protect the rights of its citizens.

Will categories of people who are the targets of "novel action" as you put it—say, Muslims who don't like being targeted by unwarranted surveillance—be able to sue?
This is the biggest structural legal question of a Donald Trump administration: whether courts are going to, all of a sudden, re-assert the importance of private civil litigation as a check on unlawful government action.

Will the ACLU be able to keep its promise to wage constitutional warfare on President Trump?
It might be hard to do that if the courthouse doors are functionally closed to those kinds of claims. The question about Donald Trump's immunity from suit is just one part in a larger—and in some ways much darker—story about the difficulties that any private citizen would have today in suing the government for violating his or her rights.

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