Two decades ago the Supreme Court came to a decision in Clinton v. Jones (1997). The Court ruled that while the President has immunity from civil lawsuits against him or her for official actions while in office, such immunity does not extend to suits against actions which occurred prior to his or her presidency. President Donald Trump now brings the question of presidential immunity back into public debate as he faces numerous lawsuits against actions he made as a private citizen.
During the 2016 presidential campaign, Trump’s rallies were often newsworthy in and of themselves. While the rallies could be described as boisterous or lively, Trump supporters gained a reputation for being unfriendly to protestors. An article published by The New York Times in March 2016 called protesting at a Trump rally “the most provocative and potentially dangerous recurring act committed by ordinary voters in the 2016 presidential cycle.” One of the protestors named in the article was a young woman named Kashiya Nwanguma. Last March, Nwanguma attended a Trump rally in Louisville, Kentucky, where she, along with other protestors, was forcibly removed by the crowd while being subjected to verbal and physical assaults.
The President’s role in the assaults is now being scrutinized. Though then-candidate Trump did not personally assault protesters, lawyers for Ms. Nwanguma and two other defendants argue that his behavior during the rally qualifies as “incitement to riot and negligence, gross negligence, and recklessness.” According to the plaintiffs, Trump could be heard saying “get them out, get them out” and “If I say ‘go get ‘em,’ I get in trouble with the press.” This type of behavior occurred at other rallies. At a Las Vegas event, Trump told the crowd he would “like to punch [a protester] in the face.” Ms. Nwanguma is now seeking compensatory and punitive damages.
This is not the only civil lawsuit the President is facing. For example, during the 2016 campaign, a former Apprentice contestant sued Trump for defamation; the case has yet to be resolved. In fact, it has been reported that within weeks of the election, around 75 lawsuits involving Trump remained open. The outcome in many of those lawsuits remains unclear as we approach the end of the first 100 days of his presidency.
Trump has defended against these lawsuits by arguing that he is immune from the proceedings while acting as President. In a current defamation case against the president in New York, for example, the President’s lawyer requested for the judge to answer whether the court has the authority to “assert jurisdiction over the President and adjudicate this case during his time in office.” The President has also taken a similar stance in the case brought against him by Ms. Nwanguma, claiming in an official filing that as President, he is immune from proceedings pursuant to Clinton v. Jones.
Presidential immunity was addressed in the 1982 case, Nixon v. Fitzgerald. The Supreme Court held that presidents are immune from civil lawsuits brought against them for official acts committed as commander in chief. The majority opinion, penned by Justice Lewis Powell, said that immunity from civil cases was essential to keep the chief executive free to make bold and at times necessary decisions without fear of civil liability.
While this case created a legal precedent for immunity from civil suits, it also clarified that Presidents are not immune from criminal prosecution for official or private actions that occur while in office. But criminally charging a sitting president can bring about complicated constitutional questions regarding the separation of powers. This is why a 1973 memo from the Department of Justice’s Office of Legal Counsel, reaffirmed again in 2000,argued that a sitting president must face impeachment before facing charges in a criminal court. The memo noted that “a criminal trial empowering a jury of twelve individuals to, in effect, overturn a national mandate as expressed through the election of a President through a guilty verdict is unacceptable.” Therefore, the OLC memo concluded: “The decision to terminate this mandate … is more fittingly handled by the Congress than by a jury, and such congressional power is founded in the Constitution,” under the Impeachment Clause.
In addition, the decision in Nixon v. Fitzgerald did not address whether a sitting president is immune from civil suits for actions that occurred before they took office.
This question of presidential immunity reached the Supreme Court again during the Clinton administration. In 1991, Paula Jones, a former secretary in the Arkansas statehouse, filed a sexual harassment lawsuit against then-Governor Bill Clinton. Litigation was still ongoing when Clinton was inaugurated as president in 1993. As President, Clinton claimed that the office of the President granted him immunity from the civil suit and warranted suspending the case until he left office. The Court heard oral arguments for Clinton v. Jones in 1996 and reached a unanimous decision in 1997. The Court ruled that a sitting president is not immune from federal civil lawsuits for events that occurred before they were in office. In a May 1997 op-ed, the New York Times editorial board argued that the decision reinforced the constitutional principle that “no American, not even an incumbent President, is beyond the law’s reach.” While this was a landmark decision, the decision did not address whether a sitting president is immune from civil lawsuits in a state court.
President Trump may have a path to at least delay many of his current civil suits as the courts decide whether he can be sued in state courts. With so many cases pending, it may be years before the question of presidential immunity is completely answered.
Maggie Baldridge is an intern at the National Constitution Center. She is also a recent graduate of Dickinson College.
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