Can President-elect Trump opt out of his 75 pending lawsuits? A closer look at the implications of Nixon v. Fitzgerald and Clinton v. Jones

ASHLEY GOMEZ-RODON—On January 20, 2017, Donald Trump, who identifies himself as the “definition of the American success story,” will be able to add another line to his growing resume—President of the United States.  But as a businessman, reality television personality, and real estate tycoon, President-elect Trump has been a party to his fair share of litigation. In fact, he is currently a party to an unprecedented 75 pending lawsuits. But what does this party-like-a-docket-star have to do with his newly elected status? Well, maybe nothing.

According to prior case law involving former President Nixon, the President has absolute immunity from liability stemming from his official acts because “of the President’s unique office, rooted in the constitutional tradition of separation of powers.” During Nixon’s presidency, A. Ernest Fitzgerald, a management analyst with the Air Force, testified before Congress on inefficient and costly aircraft development, which allegedly embarrassed the higher-ups in the Department of Defense.  Subsequently, Fitzgerald was dismissed from his position. In an internal memo, a White House aide spoke of Fitzgerald’s lack of loyalty and suggested that he be left to bleed. After his dismissal, Fitzgerald sued Nixon for damages. The Court found that dismissing Fitzgerald was an official act and thus Nixon was entitled to absolute immunity.

In a fiery dissent, Justice White labeled the ruling “tragic” and “bizarre,” equating the majority’s reasoning to the old adage, “the king can do no wrong.” However, the majority did not actually place Nixon above the law. The Court was silent regarding presidential immunity from criminal prosecution. Thus, our current President-elect may not be protected from crimes such as inciting a riot, for which he has been investigated, but never charged.

President-elect Trump has yet to perform any official acts, so a more instructive guide lies in a case involving former President Clinton. In a suit against President Clinton, Paula Jones sought damages after suffering from allegedly “’abhorrent’ sexual advances” by the President, then acting as Governor of Arkansas. Paula Jones was a state employee at the time working at an official conference. Because sexual advances cannot be considered official conduct, the court there found absolute immunity inapplicable. The Court also held that “it was an abuse of discretion for the District Court to defer trial” until Clinton’s departure from office, meaning Jones’s lawsuit would proceed. Consequently, Clinton was subject to the law for his “purely private acts.”

Notably, the Supreme Court’s unanimous holding loosely led to the discovery of Clinton’s relationship with Monica Lewinsky and his impeachment. It was in Clinton’s deposition that he denied a sexual relationship with Lewinsky, perjuring himself. With so many lawsuits pending, it’s possible that Trump could similarly be deposed because he does not have immunity from unofficial acts nor would a court defer proceedings until the end of his term.

While Trump is no stranger to litigation, as he has been involved in thousands of lawsuits over the years, the stakes are higher now. If he fails to tell the truth under oath, he could follow along the same path as former President Clinton and give his political opponents a reason to impeach. And Trump was caught lying on the campaign trail, which prompted journalists to continuously deliver fact-checking results throughout the presidential debates. While fact-checkers were necessary for both candidates, Trump’s inaccuracies were rather bold.

Evidently, Trump may know settling is in his best interest, which is possibly why he agreed to pay $25 million to settle the fraud allegations former students filed against Trump University. Had he not settled, Trump would have endured a lengthy trial scheduled for November 28th where he may have taken the stand in his defense. This outcome may be the beginning of Trump’s solution to avoiding a future like former President Clinton’s—settlements. If Trump settles many of his 75 pending lawsuits, then he does not have to risk exposure that could cost him his new job.  But Trump has repeatedly said he doesn’t settle, at least not always.

Nevertheless, Justice Stevens did shed light on a way for President-elect Trump to escape exposure without settlements. In his opinion for Clinton v. Jones, he reminded Congress of its power to grant the President stronger protection through legislation. Accordingly, Trump can simply ask the Republican-controlled Congress for greater protection if he wishes.

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