Like all new presidents, President-elect Donald Trump has a crowded agenda for his first 100 days. Unlike his predecessors, Trump faces or is pursuing a slew of civil lawsuits, perhaps as many as 75.
Trump entities have sued Jose Andres and Geoffrey Zakarian related to leases in the Old Post Office building in Washington, D.C. Both backed out of leases after Trump’s controversial comments about Mexican immigrants. Most prominently, Trump faces the resumption of a fraud lawsuit related to Trump University. The news is awash with reports that Trump’s lawyers have asked for a delay of proceedings until inauguration, saying the president-elect is now too busy to participate. But it is hard to see how Trump would have more time for this suit after he moves into the White House. Being president is not a part-time job.
The new president appears doomed to be distracted by his private concerns. Fortunately, a solution is within our grasp. Congress can pass a law that would put these kinds of civil actions on hold while President Trump remains in office. The law would have to provide that any lawsuit against a sitting president or president-elect, filed before or after he or she assumed office, would not proceed until the president left office. Such a law wouldn’t protect the president from impeachment or criminal prosecution, but it would ensure that Trump would not be distracted by civil litigation arising out of his personal life or business interests.
Granting such temporary immunity may seem unprecedented. It’s not. Under the Servicemembers Civil Relief Act, federal law already protects soldiers and sailors by providing “for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect” them during their military service. Tailoring a new law to protect the president would ensure that the commander in chief, no less than our men and women in the armed forces, may “devote [his or her] entire energy to the defense [and civilian] needs of the Nation.” Any statute of limitations, federal or state, could also be suspended, or “tolled,” for the presidential term, meaning that such limits would not prevent parties from pursuing their claims after President Trump left office. (The law might have to make some exceptions — for divorce, or child custody decisions, for example.)
A Presidents Civil Relief Act is necessary because of the Supreme Court’s decision in Paula Jones vs. Clinton. In that case, Jones sued then-President Bill Clinton for sexual harassment dating to his time as Arkansas governor. When it got to the Supreme Court, the justices had to rule on whether the Constitution conferred temporary civil immunity on the president. The answer was no, and almost as an aside, the court predicted the Jones suit would be “highly unlikely to occupy any substantial amount of” the president’s time.
The court was right on the first point. The Constitution does not place the president above the law or make him temporarily immune from civil actions. But the court was utterly wrong in its prediction. The Paula Jones suit opened up a huge can of worms, occupying a tremendous amount of the president’s time. Statements the president made in the case were eventually found to be false, the president was held in contempt of court and he was disbarred from practicing law.
Donald Trump has a vast fortune. If Congress doesn’t shield him from the lawsuits that already afflict him, and those on the horizon, his time and attention will be dissipated trying to preserve his riches. As citizens, we don’t have to care about his personal finances. But we do have to worry that he will be distracted from the duties he now owes the public.
Admittedly, forcing plaintiffs to wait four or eight years seems unfair. Justice delayed could be justice denied. But as is true for members of the armed forces, there is a powerful, overriding case that the needs of the nation must outweigh the needs of the few. We simply cannot afford to have a president bogged down in lawsuit after lawsuit.
Congress can also make things fairer by taking a few additional steps. First, any law passed must not be Trump specific. Rather it should provide for immunity from civil suit for all future presidents. A President Sanders or a President Rubio should also serve without such distractions. Further, Congress should consider whether to shield the president from having to testify in court even if he or she is not a party to the particular lawsuit. A suit against a Trump corporation, though not against Trump himself, may still require his time and testimony. Such suits could be allowed to proceed, so long as they did not require any testimony on the president’s part.
Third and most importantly, symmetry is in order. If suits against a president cannot proceed, civil suits by the president in his personal capacity should not go forward either. In particular, President Trump should not be able to actively pursue libel suits or suits against those who breach contracts or owe him debts. Nor should he be able to testify on behalf of his business interests in their lawsuits. If we are going to temporarily protect Trump from suits, he must also be subject to a freeze on any personal legal actions he might wish to pursue or assist. Anything less would be a travesty.
Trump shouldn’t be defending himself or his businesses in civil court until he leaves office. And he shouldn’t be suing others. His time is now our time.
Saikrishna Prakash is a professor of law at the University of Virginia and the author of “Imperial from the Beginning: The Constitution of the Original Executive.”