Donald Trump and Sovereign Immunity

By Sanjay Dureseti
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Sanjay Dureseti is a sophomore at the University of Pennsylvania and an associate editor of the Penn Undergraduate Law Journal.

The election of Donald Trump as president has ushered in a period of unprecedented uncertainty. Never has a person bereft of any political or military experience taken the oath of office of president. Along with his status as a governmental neophyte, Trump ran a campaign in which he refrained from articulating substantive policy points about a variety of issues, leaving the country in the dark about his plans to implement his legislative agenda. But perhaps the biggest shadow looming over Trump’s future is the status of several pending and active lawsuits against the incoming President and his vast conglomerate.

75 cases involve Trump and his holdings, and, though many of them are frivolous, several legitimate charges could threaten the stability of his regime. Trump, in the days after his electoral victory, attempted to postpone some of these trials until after his inauguration. These civil claims, other than potentially derailing the transition of power from President Barack Obama to his successor, also raise fundamental questions about the judicial liabilities, or lack thereof, that face the highest office in the land.

Since the days of the Founding Fathers, the notion of sovereign immunity, or the inability of private actors to sue the federal government and its officials, has troubled the members of the Supreme Court. Federal structures have remained largely immune from lawsuits throughout the course of American history, with the exception of the 1946 passage of the Federal Tort Claims Act, which allowed the waiving of sovereign immunity in certain cases. The Eleventh Amendment of the Constitution also prohibits suing individual states in federal court. But the insulation of the President of the United States from civil lawsuits is far less impervious.

Like any individual or private actor, the President may be criminally prosecuted without restriction. This was concretely established in the 1982 case of Nixon v. Fitzgerald, which pitted former President Richard Nixon against a former civilian analyst for the US Air Force named A. Ernest Fitzgerald. Fitzgerald had testified before Congress on rampant inefficiencies in the production process of an Air Force transport plane and Nixon, irked by the unfavorable remarks, had him fired. Fitzgerald then filed for damages based on a ruling that his termination was wrongful. The Court ruled 5-4 in favor of Nixon, citing that Presidents receive absolute immunity from civil liabilities while conducting the business of their office. The opinion, delivered by Justice Lewis Powell Jr., cites the attention necessary to combat such lawsuits would too significantly distract the President from his or her duties and present “unique risks” to governmental function. The Court also extended this immunity to include all acts within the “outer perimeter” of the President’s executive actions, effectively protecting the individual holding office from any judicial liability, regardless of circumstance. [2]

Putting aside the irony of the Court’s defense of Nixon’s legal privileges, Fitzgerald remains the jurisprudential standard regarding civil lawsuits filed against the actions of sitting Presidents. Any conduct before their inauguration and after their retirement is, however, fair game in the eyes of the law. The case of Clinton v. Jones, decided in 1997, established that the pre and post-office behavior of Presidents is subject to the jurisdiction of civil courts. Paula Jones, a former Arkansas state employee working for then-Governor Bill Clinton’s administration, sued the incumbent President for sexual harassment allegedly committed during his years in Little Rock. An Eighth Circuit judge, relying on Fitzgerald, ruled initially that a President could not be sued and delayed the trial till after Clinton’s time in office, a decision that was reversed on appeal. The Supreme Court upheld the appellate court’s decision. The unanimous opinion stated that the separation of powers was not sufficient justification for unqualified executive immunity and postponement of a private civil case, even if it concerns the President. Allowing civil proceedings to occur, in the eyes of the Court, is a simple exercise of powers found in Article III of the Constitution and not an attempt by the judicial branch to encroach or replace the privileges granted to the executive branch. [3]

So, in yet another prime example of jurisprudential irony, the Trump University lawsuits may proceed through the President-elect’s first term because of Paula Jones, a woman who appeared alongside him during his campaign against Hillary Clinton.

But, President Trump may have more far-reaching worries, as the principle of sovereign immunity may be extrapolated to the arena of international relations. The principle has long been used as a geopolitical weapon by hostile countries.

A recent report from the Law Library of Congress has examined the lifting of sovereign immunity by certain foreign countries over the course of their dealings with the US. These nations include Iran, Russia, Cuba, and Syria, all states with whom America has rocky diplomatic relationships. After years of economic sanctions and geopolitical isolation, these nations are determined to receive damages, even if it means rejecting sovereign immunity and suing other countries. The implementation of counterterrorism legislation has proven to be a crucial tool in justifying the seizure and freezing of foreign assets, as Iran and Syria have shown a particularly blatant disregard for sovereign immunity. Other countries adopt a dual policy of deterrence and repudiation. Russian law incorporates the notion of “negative reciprocity,” which is meant to enforce other countries’ adherence to Russia’s sovereign immunity while simultaneously allowing its own legal action against foreign governments. Civil suits filed against foreign governments may be tried in domestic courts rather than international bodies and the law also allows foreign-owned property in Russia to be assessed in calculating damages for liability claims against other nations. And, despite the normalization of diplomatic relations in some of these formerly hostile states, some still insist on holding the US liable in civil courts. Cuba, which has been in extensive talks with the Obama administration about a post-Cold War thaw, nevertheless claims personal injury damages and sanction-created economic damages of over 300 billion dollars. [4]

And along with the challenges facing the diplomatic novice that is Trump, his party’s Congress recently passed legislation that poses an internal threat to the concept of sovereign immunity. In an overwhelming override of President Obama’s first unsuccessful veto, Congress ensured that the Justice Against Sponsors of Terrorism Act (JASTA), which allows 9/11-affected families to sue Saudi Arabia over its potential involvement in the attacks, became law. It is a resounding repudiation of Saudi Arabia’s sovereign immunity and it could create a dangerously broad exception to the rule that foreign-based officials remain exempt from trial in the domestic courts of their temporary homes. [5]

President-elect Trump has defied expectations throughout every step of the political process. His inexperience proved to be a boon to his candidacy and elevated him above the field. But Trump’s rejection of carefully constructed policies, his questionable international reputation, and his checkered corporate past force the American electorate to wonder who it really chose.

[1] Larson, Erik. “Trump Loses Latest Bid to Derail University Fraud Lawsuit,” Chicago Tribune, August 30, 2016. Accessed November 14, 2016. http://www.chicagotribune.com/news/nationworld/politics/ct-trump-university-fraud-lawsuit-20160830-story.html.
[2] Nixon v. Fitzgerald. 457 U.S. 731 (1982). Cornell University Law School: Legal Information Institute. Accessed November 14, 2016. https://www.law.cornell.edu/supremecourt/text/457/731.
[3] Clinton v. Jones. 520 U.S. 681 (1997). Cornell University Law School: Legal Information Institute. Accessed November 15, 2016 https://www.law.cornell.edu/supct/html/95-1853.ZS.html.
[4] U.S. Law Library of Congress. Global Legal Research Center. Laws Lifting Sovereign Immunity in Selected Countries, by Gustavo Guerra, Shadi Karimi, Peter Roudik, and George Sadek. 2016. Accessed November 15, 2016. https://www.loc.gov/law/help/sovereign-immunity/lifting-sovereign-immunity.pdf.
[5] Chang, Alisa, and Scott Horsley. “Congress Overrides Obama's Veto On Sept. 11 Lawsuit Bill.” National Public Radio, September 28, 2016. Accessed November 16, 2016. http://www.npr.org/2016/09/28/495709481/sept-11-lawsuits-vote-today-could-be-first-reversal-of-an-obama-veto.
Photo Credit Flickr User: Gage Skidmore

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

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