Clinton v. Jones and President Trump

I’ve posted before about the litigation pending against President Trump from his run as the host of The Apprentice. The President’s attorneys have moved to have the case thrown out, and in part they are arguing that Clinton v. Jones should be read as applying only to civil lawsuits filed in federal court. The pending lawsuit is in state court, which (under the President’s theory) allows him to obtain immunity.

I don’t think that this argument is persuasive. Clinton v. Jones was a misguided decision, but it’s hard to see why a President should get civil immunity for private acts only in one kind of forum. To a certain extent all that does is deny a remedy to plaintiffs who live in the same state as the President (therefore making diversity of citizenship impossible) while allowing plaintiffs from other states with the same claim to have an action.  How does that make sense?

Who knows, though, what the Supreme Court would do if ever called upon to reconsider Jones.

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7 Responses

  1. Joe says:

    It makes some degree of sense that something specifically tied to a national interest would be tried in federal courts like certain crimes or whatnot with a special federal interest is made a federal issue. Independent life tenure judges also might be seen as appropriate there over often elected state judges who are less likely to protect national issues.

    My question would be if this specific lawsuit HAD to be tried in federal court. Was there no cause of action for a federal claim? The strongest case would be a claim that would only possibly made in state court, such as some local traffic crime. And, I do recall something like that was cited in Clinton v. Jones without the assumption it was a problem.

  2. Joe says:

    A traffic crime that results in a civil suit.

    I don’t think Clinton v. Jones was misguided except in the sense that it might be said that a more narrow rule (e.g., something where immediate harm would clearly occur if a suit was tolled) would have been appropriate. And, even there, it seems Congress had the power to pass a law setting up such a rule like it does in some other cases where delaying suit makes some sense.

  3. Brett Bellmore says:

    What bothers me here is that, while you can debate whether the President should have some form of legal immunity, the only appropriate legal question is whether he DOES have some form of legal immunity.

    And I see nothing whatsoever in the Constitution to give him any immunity. Zip, zero, nada. The authors of the Constitution knew how to hand out immunity when they wanted, Congress has it, to a very limited extent. But nothing in there about the President having any.

    Is there a statute giving him immunity? I would guess not, since we’re not discussing it.

    Shouldn’t that be the end of the discussion?

  4. Joe says:

    “Constitution knew how to hand out immunity when they wanted”

    I am very sympathetic with using immunity strictly, but the 11th Amendment was ratified after people were shocked at a ruling of the Supreme Court that was deemed to have ignored implicit immunity by the states. Even afterwards, state immunity was recognized as going past the text of the 11A, including when lawsuits are used to enforced explicit federal powers. I find this wrong myself in certain ways but it is now readily accepted law that the structure of the Constitution requires it to some extent.

    The Federalist Papers took that for granted to some extent as implicit in the structure of the document. If we are appealing to the “authors,” that seems relevant. This includes possible state and federal separation where federal officials might be immune to promote federalism. Or, in the much less carefully spelled out Art. II, part of “executive power” broadly provided.

    • Brett Bellmore says:

      The difference between completely ignoring a topic, and specifically addressing it without mentioning something you think they should have; The Constitution explicitly grants members of Congress very limited immunity, and says nothing of immunity for either of the other two branches. This does not strike me as a random omission, but rather part and parcel of the Constitution’s design for legislative supremacy.

  5. Joe says:

    Its obviously quite relevant that the Constitution provides a specific immunity involving congressional debate, but what exactly this means is unclear. It cannot be “legislative supremacy,” since there are various limits on Congress. it is more likely that it was seen as specifically of special concern, including because of a history of fear that the executive on this issue specifically would intervene.

    And, it doesn’t directly “say” anything about state immunity but it was broadly understood that the structure of the document warranted immunity there, even where the text provides an opening for liability. The 11th Amendment was deemed by many as a reaffirmation of a point that was there already. And, even then, state immunity then and now goes beyond the 11A’s text. If so there, the broad with few limits (compare Art. I’s detailed text) talk of “executive power” very well might have similar broad reach in some fashion. Ditto judges being immune, as they are in certain ways.

    I’m happy if you find state immunity applied in an overbroad way and think Congress has broad “supremacy” here but if we are talking about original understanding on what was “said,” there was and is an understanding that the document does provide immunity other than the explicit provision involving congressional debate.

    • Brett Bellmore says:

      Congressional immunity goes a bit beyond the matter of debates:

      “They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

      As I say, note the utter lack of any comparable language in article 2 or 3.