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Tilting the Scales Business Issues with a Legal Slant

Presidential Privilege? Why Presidents Can’t Escape Litigation in Office

Posted in *BTW - Noteworthy

Unless you’ve been living under a rock for the past three weeks, you know Donald Trump was elected the next President of the United States.  You also probably know that some of Mr. Trump’s companies are defendants in various lawsuits.  Individuals have also threatened to file individual lawsuits against Mr. Trump.  Can Mr. Trump be forced to sit for a deposition while he’s in office?  Can plaintiffs take his cases to trial during his presidency?  Or does Mr. Trump enjoy a “Presidential Privilege” during his term that bars litigation against him that is unrelated to his office?

Presidents Are Not Immune From Lawsuits for Acts Outside of Office

Generally, Mr. Trump is not immune from lawsuits that do not relate to his activities in office.  The United States Supreme Court ruled in Clinton v. Jones that a sitting president is not immune from litigation for acts that occurred before he became president.  This means presidents may be forced to go to trial and engage in discovery, such as a deposition, during the presidency.  However, the Supreme Court noted that in “cases of extraordinary public moment,” such as times of war, a plaintiff may be required to delay prosecuting his or her case against the president to allow the president to perform his duties to promote “public welfare or convenience.”  So, for example, a plaintiff may be required to delay trial while the president deals with a natural disaster or a terrorist attack.

Will Presidents Always Be Required to Appear for a Deposition?

It’s important to remember that Mr. Clinton was being sued by a woman who claimed he sexually harassed her.  Mr. Trump faces similar allegations.  But some of his companies also face claims (Mr. Trump settled the Trump University lawsuits shortly after his election).  So can Trump be forced to sit for a deposition relating to the claims against those companies while he’s in office?  In addition to the Supreme Court’s concerns about the burdens on the office of the presidency, Mr. Trump might not have to appear for a deposition unless his personal involvement is significant to the case. Some courts have adopted an “apex deposition” doctrine that protects high level corporate executives from deposition where the executives do not have personal knowledge of facts or issues that are relevant to the lawsuit.  Thus, Mr. Trump may not be subject to deposition if he lacks that knowledge.

Tilting the Scales in Your Favor

Just because the president does not enjoy immunity probably does not mean there will be a rush of lawsuits against him.  As the Supreme Court notes in Clinton v. Jones, frivolous and vexatious lawsuits are usually terminated at the pleading stage and require little personal involvement from the president.  There have also been a small number of lawsuits filed against sitting presidents for acts that occurred before they took office.  It’s thus unlikely that the American public will be subjected to a “trial of the century” involving a sitting president.