But if Trump has his way, the merits of her lawsuit won’t be heard for at least four years. Even the most basic preliminary proceedings should be halted, his lawyers argued, advancing an expansive conception of presidential immunity. “Requiring President Trump to litigate the merits on a motion to dismiss the complaint, in addition to moving to dismiss on grounds of presidential immunity, would negate the very interests that that immunity is designed to protect,” the filing said.
Clinton v. Jones, which Trump’s lawyers cited multiple times in their filing, presented a novel constitutional question for the justices two decades ago. To keep its ruling narrow, the Court said it would decline to address two issues. One was whether courts could compel the president to appear at any time or place—a potentially onerous requirement for the nation’s chief executive. The other unresolved question was whether presidential immunity from civil lawsuits existed in state courts. Jones’s lawsuit was filed in federal court, raising separation-of-powers questions for the Supreme Court to resolve. A lawsuit in a state court, the justices noted, would revolve around federalism concerns instead. Monday’s filing by Trump aims to resolve that open question.
On a historical level, presidents were almost never sued in their private capacity before Clinton. Only Theodore Roosevelt, Harry Truman, and John F. Kennedy had faced civil lawsuits for their pre-office conduct while president at that point, according to the Court. And those cases were also relatively trivial in nature: The lawsuits against Roosevelt and Truman were eventually dismissed, while the case against Kennedy, which sprung from a car accident in which he was involved, was settled out of court.
Trump’s private legal affairs are far more complex, to say the least. The president was notoriously litigious during his decades as a real-estate businessman: An extensive USA Today investigation during the 2016 presidential campaign estimated Trump had been involved in more than 3,500 lawsuits, both as a plaintiff and as a defendant, in his business career. In October, the newspaper found at least 75 pending cases involving Trump ahead of Election Day. It’s not immediately clear how many of those lawsuits are still ongoing today; he settled at least one high-profile case—with former customers of the now-defunct Trump University—before his inauguration.
If the courts adopt a presidential immunity rule for state-level civil lawsuits, the impact could be devastating for those suing Trump. Prolonged litigation can be costly in almost every sense—in time, energy, and most of all, money. Suspending those proceedings for at least four years would be a significant boon for someone with Trump’s resources, who’s in a better position to outlast less-wealthy plaintiffs. And if he’s re-elected in 2020, currently active cases would go unresolved for almost a decade.
There are good reasons for the courts to grant presidents some procedural leeway when facing civil litigation, for both the White House’s benefit and for the country. But when it comes to a claim of immunity—even a temporary one—Trump’s choice to become the federal government’s top civil litigator summarized it best.
“In a case involving his private conduct, a president should be treated like any private citizen,” Conway wrote. “The rule of law requires no more—and no less.”