Supreme Court Never Imagined a Litigant Like President Trump

Nov. 14, 2016, 3:18 PM

By Noah Feldman, Bloomberg View

Only two presidents have had to deal with private lawsuits while in office. One was John Kennedy, who settled a suit involving a car crash that happened during his campaign. The other was Bill Clinton, sued by Paula Jones for making sexual advances toward her when he was governor of Arkansas. President-elect Donald Trump is involved in 75 pending lawsuits . That’s a problem — potentially a serious one .

Under the 1997 U.S. Supreme Court precedent that let Jones’s lawsuit go forward, these cases will proceed as normal unless Trump settles the ones where he’s a defendant or drops the ones where he’s a plaintiff. The basis for the Clinton v. Jones decision was the appealing idea that the president isn’t above the law. But it’s time for the Supreme Court to revisit it -- not just because a lawsuit against a sitting president can go terribly awry, but also because the time demand of dealing with private suits can seriously distract a president from fulfilling the demands of office.

It is important to note a distinction that, in my view, doesn’t make much of a difference. The Jones suit was against Clinton in his personal capacity, whereas the bulk of Trump’s suits involve his businesses.

This would matter if Trump could actively ignore the suits after putting his businesses into a blind trust, or whatever he ends up doing about the Trump Organization. But because Trump seems to have been directly involved in decision-making for many of his businesses, it’s probable that he would be deposed or called as a witness in many cases. The minute you’re under oath, you’d better be fully involved and ready for any consequence — as Clinton learned to his detriment. It would appear that most of Trump’s lawsuits are therefore capable of demanding his concerted, focused attention.

When the justices decided Clinton v. Jones (9-0, as it happens), they didn’t anticipate what could go wrong in that case, much less the prospects of dozens or scores of cases. Clinton argued that, while he was in office, the Jones case should be frozen in time. After leaving office, he would defend himself against the charges, but he did not want to have to do so while serving as president.

The opinion by Justice John Paul Stevens began by pointing out that Clinton’s claim was unprecedented. Kennedy had tried a version of the same argument, which was rejected by an appeals court, after which Kennedy settled the case. (It turns out that Theodore Roosevelt and Harry Truman had also been sued, but their cases were dismissed before they took office and those dismissals were affirmed after each became president.)

Stevens went on to note that many government officials are immune from suit for their official conduct, provided it’s in good faith. But that logic doesn’t apply to unofficial conduct, Stevens argued.

Clinton tried to argue that subjecting the executive to suit before the judiciary violated the separation of powers. Stevens quite reasonably rejected this claim, too.

The real trouble came with Clinton’s argument that defending the suit “may impose an unacceptable burden on the President’s time and energy, and thereby impair the effective performance of his office.” Here Stevens unwisely insisted that everything would surely be fine if Jones’s suit went forward. Clinton’s “predictive judgment finds little support in either history or the relatively narrow compass of the issues raised in this particular case,” he said. “If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency.” That bad judgment was followed by Stevens’s cavalier statement that the Jones case, “if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount” of Clinton’s time.

I can hardly think of a factual prediction by the Supreme Court that’s been more definitively proved false. As it happened, defending the Jones case led Clinton to have to answer (under oath!) wide-ranging questions about other sexual relationships — which led to the subject of Monica Lewinsky, which led to the independent prosecutor, which led to Clinton’s impeachment and trial before the Senate.

The upshot is that the court got Clinton v. Jones wrong. And that was just one suit, not 75. The fact of the matter is that the presidency is a highly time-consuming job, and litigation is a highly time-consuming endeavor, even if you have good lawyers to represent you. The distraction would unquestionably occupy a “substantial amount” of Trump’s time.

Of course, the only way for the Supreme Court to reverse itself would be for Trump’s lawyers to argue in one of his cases that the precedent should be reversed. The district and appellate courts would have to say no, because they don’t have the authority to deviate from Supreme Court precedent. Then Trump would have to go to the Supreme Court and ask it for a new rule.

That process would no doubt have some political cost for Trump. But he should probably undertake it — and if he does, the Supreme Court would have to be crazy not to adopt the rule that Clinton urged and that it denied. Suits involving Trump should be frozen for the length of his presidency and defrosted the day he leaves office.

There’s understandably a cost to the rule of law, and justice delayed can sometimes be justice denied. But the cost-benefit analysis is clear. The country can’t afford the kind of paralysis that gripped the last two years of Clinton’s presidency.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story: Noah Feldman atnfeldman7@bloomberg.net

To contact the editor responsible for this story: Stacey Shick atsshick@bloomberg.net

[Image “blb newsletter” (src=https://bol.bna.com/wp-content/uploads/2016/09/blb-newsletter.jpg)]

To read more articles log in.

Learn more about a Bloomberg Law subscription.