US Customs and Border ProtectionLast week Emma Grant’s line cook and 25 other undocumented employees at her bar-b-que restaurant Emma Grant’s Bar-B-Que were working the lunch shift when it was raided by Immigration and Customs Enforcement personnel, apparently at least in partial response to a recent executive order. Can the President of the United States do that? Can this be a problem for Emma Grant and her bar-b-que restaurant?

Executive Orders

Recognized since George Washington as being authorized by Article II, Section 1 of the Constitution that provides “the executive power shall be vested in a President of the United States of America,” there have been more than 13,000 issued, in one form or another, since 1789. Notable executive orders were Abraham Lincoln’s Emancipation Proclamation and Franklin Roosevelt’s mandatory registration of aliens from World War II enemy countries. FDR also holds the record, by far, of the most Executive Orders at 3,721; next closest is Woodrow Wilson at 1,803. To date, President Donald Trump has issued twelve executive orders. Suggested as undoing many of President Barack Obama’s policies, here’s a list and short summary of each. The Federal Register details the executive orders transcripts, numbers and disposition tables from Herbert Hoover to date.

The Legal Reality

But what about Emma’s exposure? Yes, as the employer of the undocumented workers, Emma Grant could have liability. Employers must verify the identity and employment authorization of each person hired after Nov. 6, 1986 and complete and retain Form I-9. Failure to do so can result in civil fines ($539 for each at the first offense and up to $21,563 for each after multiple offenses), criminal penalties (when there is a pattern or practice of violations), and debarment from government contracts.

Tilting the Scales in Your Favor

Get a completed I-9 for each employee. Undertake reasonable and diligent investigation, if appropriate. For key employees, consider undertaking steps to secure their legal residency in the United States.

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.