Friday, April 28, 2017

How Damaging is Clinton v Jones to Trump's Defense Against Various Lawsuits?

by Michael Dorf
(cross-posted on Take Care)

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.


el roam said...

Thanks for the post , we just can't understand from it , how the factor of statutory limitation ( in civil cases of course ) play any part or role here . If axis of time is frozen ( due to the fact , that Trump has become president ) then , it is attenuating the harm caused to the person suing him . He shall wait , and right after termination of his tenure ( of Trump ) may sue him .

Shag from Brookline said...

Curses, another Clinton haunts The Donald! "Unlock Clinton [v.Jones]!"

With regard to Mike's point that " ... the president has absolute immunity against civil damages litigation for acts undertaken in his official capacity" consider that Trump is officially in the 2020 campaign. What if at a campaign rall President Trump were to allegedly incite the crowd consisting primarily of his base to physically assault demonstrators at the rally? Full immunity? Temporary immunity?

Shag from Brookline said...

There's an old saying in American jurisprudence: "Justice delayed is justice denied."

el roam said...

Of course , shag , the moron , can't think or draw other conclusions but : " Pro Trump " or : " Anti Trump " . " Miraculously " he has chosen " Anti Trump " how trivial and moronic . Just for the readers (I wouldn't waste sweating from my balls for such ill an imbecile person like him):

It is possible, to presume, that, statutory limitation is expired, within the time frame of the current tenure of Trump, while: Clinton v. Jones is yet implied . Then , one may argue , that for the sake of the alleged victims , Clinton V. Jones , is to be overruled or not implied , by lower court ( whether state or federal ) this is due , to different circumstances . A precedent, refers to given case, given circumstances, but, once substantial different circumstances presented, may be rejected by a lower court, as not suitable for the current case .
What takes over , in civil case , immunity Vs. limitation and impossibility to sue later , this is an issue …


Joe said...

I personally thought Clinton v. Jones was rightly decided & that can be separated from the idea (ah simpler days when there wasn't much going on) the overall actions involved warranted an impeachment trial.

I can see there being good policy in limiting suits here -- though there must be a realm of litigation that really doesn't warrant being in federal court (e.g. marriage/child relations) except in narrow cases (e.g., discrimination in the laws involved). But, good policy as our friends on the Right say isn't constitutional requirement in many cases.

I'm also somewhat curious why a state court was chosen in certain cases. Guess there were strategic reasons.

Unknown said...

People who are incapable of following the basic rules of grammar and punctuation have no room to call others morons.

Michael C. Dorf said...

Shag raises an important question about the scope of the president's "official capacity" as that term is used in Nixon v. Fitzgerald. There is very little case law on that precise point, although there is a great deal of case law on the similar term "under color of state law" in 42 USC sec. 1983. Given the requirements of separation for funding purposes under federal election law, one could conclude that campaign events are not official capacity events. A contrary rule would give incumbents an advantage. But it is an open question.

One small point in response to a point Joe makes in passing: The SCOTUS could recognize some sort of temporary immunity without holding that it is constitutionally required. It would be a common law immunity, modifiable by Congress, much in the way that qualified immunity is a common law immunity. FWIW, Nixon v. Fitzgerald is unclear whether the president's absolute immunity to official capacity damages actions is entirely a matter of Article II or partly common law. For a useful discussion of a related issue by one of my former students, see

el roam said...

Don smith ,

Of course , you don't have a chance whatsoever , linguistic , law , or whatsoever . A coward like you , Steps into a Dojo , throwing gloves , and walks away . I have an open account with shag , he knows very well , what he did to me , step by step done . You have decided to take a side , I don't know why . But , get this :

I shall balance the books with you , whatsoever …..

See you around pal ….I don't have time right now , but after finishing with you , you shall become homeless .... begging for leftovers , trust your christ !!

Joe said...

The common law point is duly noted, thanks, it likely factoring in some constitutional concerns. That should be factored in, but that would involve balancing including of prudential factors. This would be of limited value to Trump though the open questions and discretion (congressional involvement is unlikely) gives judges much wiggle room.

David Ricardo said...

With respect to Mr. Dorf’s point that Trump lawyers might claim that Jones somehow supports immunity there is this over at Take Care by Neil J. Kinkopf that says making such a claim is sanctionable because it deliberately argues the opposite of the case law. Westberry is a Trump lawyer. Would Mr. Dorf and other legal experts here agree?

“But there is a problem with this charitable view of Mr. Westberry's filing. The fourth affirmative defense is followed by a fifth: "Mr. Trump is immune from proceedings pursuant to Clinton v. Jones, 520 U.S. 681 (1997)." At least Mr. Westberry's bluebook form is unassailable. Had he read the case that he so flawlessly cites, he would know what any student who has taken a basic course in constitutional law knows, that Clinton v. Jones refutes the proposition for which he cites it. When President Trump and his professional spinners claim that his inauguration was better attended than President Obama's, even though all evidence actually demonstrates that this claim is spectacularly untrue, there is no recourse other than the hope that "we the people" will exercise our civic duty to resist.
When a lawyer makes such demonstrably false assertions to a court, there is a more concrete recourse available. Federal Rule of Civil Procedure 11 authorizes a court to impose sanctions on any attorney who signs a pleading if "the claims, defenses, and other legal contentions therein are [not] warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." Mr. Westberry signed a pleading that does not seek the reversal of the Supreme Court's unanimous ruling in Clinton v. Jones, instead it actually cites the case and asserts a defense that existing law plainly repudiates. The District Court should sanction Mr. Westberry and refer his egregious misconduct for disciplinary action.”

Also, it would seem that this great forum, maybe the best of law and economics on the Web needs more immediate supervision and deletion of posts which are polluting it. In the current situation maybe a permanent ban is appropriate.

Shag from Brookline said...

On a thread sometime back at this Blog, I raised the question of federal common law to which Mike had responded that in some limited situations federal common law is recognized. I raise the question again regarding Mike's response to Joe. Since it has become a sort of sport within the legal community to refer to the late Justice Scalia, here's a quote from Caleb Nelson's "The Legitimacy of (Some) Federal Common Law," 101 Va. L. Rev. 1 (2015):


But some distinguished commentators have advocated restrictive approaches. Justice Scalia has drawn the logical conclusion: “[I]n the federal courts, . . . with a qualification so small it does not bear mentioning, there is no such thing as common law. Every issue of law resolved by a federal judge involves interpretation of text—the text of a regulation, or of a statute, or of the Constitution


Is Immunity a small qualification?

Michael C. Dorf said...

el roam: Stop threatening other commenters immediately. Otherwise, I shall have no choice but to delete your comments.

Let me be clear, I welcome spirited disagreement with anything I, one of my co-bloggers, or another commenter writes. But personal attacks and threats will not be tolerated.

Michael C. Dorf said...

DR: Yes, I have read and agree with Prof Kinkopf's analysis.

Shag: Prof. Nelson's comment is an overstatement, in my view. E.g., in the Boyle case, Scalia vigorously endorsed a federal common law defense for military contractors.

Shag from Brookline said...

Mike, I appreciate your comment. I returned to my comment and noted that the quote from Prof. Nelson's article should have ended with a perio and close quotation marks, completing the quote attributed to Justice Scalia. So if it was an overstatement, it was Justice Scalia's considering the latter's views in the Boyle case. Perhaps this demonstrates an inconsistency on the part of Justice Scalia in the same manner as his confessed "faint-hearted" originalism. I regret the quote was not complete. It may have been due to eyesight issues and ludditeness on internet copying and pasting skills.