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Trump’s “Unpresidented” Litigation

Posted January 06, 2017

By Jonathan Karon

Yesterday (January 5, 2017) President-elect Trump was deposed on video for about an hour and a half in an on-going lawsuit against a celebrity chef for backing out of opening a restaurant at Trump’s Washington D.C. hotel. At the time of his election, President-elect Trump was a party to approximately 75 pending lawsuits. Although he has settled some of these, including a fraud case against Trump University, most of these cases are still being litigated.

The most unprecedented [unpresidented?] aspect of these large number of civil cases is that Trump is the plaintiff in a number of them. In other words, he will be choosing to devote time away from the duties of his office, merely to advance his personal legal claims for money. In contrast, virtually all of his predecessors did everything they could to avoid being distracted by litigation.

When Bill Clinton was President, he unsuccessfully asked the Supreme Court to stay Paula Jones’ civil suit against him until his term was finished. The Supreme Court rejected his argument that the Constitution entitled the President to temporary immunity from civil suits for damages for events that occurred before taking office. A unanimous Supreme Court held that a sitting President is not protected from such suits, but a Court can issue appropriate scheduling and case management orders to prevent interference with performance of the President’s duties. Nonetheless, the Court cautioned that the plaintiff in such cases also should be protected from undue delay which could result in loss of evidence or the death of a party. (Clinton v. Jones, 520 U.S. 681 (1997)).

Three other sitting Presidents have been defendants in lawsuits brought before they were elected. Two of them, Theodore Roosevelt and Harry Truman, had the cases dismissed before they were inaugurated. The other, John F. Kennedy, was a defendant in two cases involving an automobile crash, which were settled after his motion to stay proceedings was denied.

There is a huge difference between being forced to defend a case which was filed against you and voluntarily choosing to file a case against someone else. I believe our civil justice system is essential for holding careless and greedy individuals and corporations accountable for their conduct. In at least some cases, my clients’ recoveries have allowed them to put their lives back together. But this is a far cry from a billionaire choosing to take time away from the most powerful position on earth to bring a $10 million dollar lawsuit against a celebrity chef.

The Supreme Court certainly never saw it coming. The Justices agreed with President Clinton’s argument that the President “occupies a unique office with powers and responsibilities so vast and important that the public interest demands that he devote his undivided time and attention to his public duties.” The Justices noted that “Former Presidents, from George Washington to George Bush, have consistently endorsed [President Clinton’s] characterization” of the office of the President.

But, it appears the President-elect has a different view.

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