This piece first appeared on the Law and Justice page of the Daily Observer
By Shyikh Mahdi
Within a month of the presidency of Donald Trump, the 45th president of the United States, the lawyers and legal analysts are getting frenzy as the number of executive orders of the President are coming as shocks to the progressive-liberal camps. What makes it more interesting that there was no president before Trump who took over the Office with the litigation cloud of about 75 cases hanging over his head.
With a plethora of executive orders, the most criticized one till date was the order which restricted the entry of Syrian refugees as well as citizens from certain Muslim-majority countries including Iran, Iraq, Syria, Libya, Somalia, Sudan and Yemen to the US. As the travelers are being detained at the Airports across America, protests erupt in cities led by civil society and community organizations, and lawsuits followed. The American Civil Liberties Union (ACLU) is playing the pivoting role to mobilize people, resources and legal attention to this discriminatory order of the President.
As a prompt response, five federal judges had blocked its enforcement so far. The New York court prohibited the government from sending home the people affected the order; Boston judges barred detaining them as well. It was not surprising that Trump immediately fired Sally Yates, the Acting Attorney General of the US who instructed the Justice Department to not to defend the Executive orders in the Court. However, activists and protesters are complaining that the refugees and the detainees are still held despite the Court orders.
As a result, Washington state’s attorney general became the first this week to declare plans to file a lawsuit against Trump. San Francisco City Attorney Dennis Herrera has already filed a lawsuit in U.S. District Court on Tuesday challenging Trump’s executive order and Xavier Becerra, the California Attorney General also said that he will challenge President Donald Trump’s widely disputed executive order.
Suing the US President: What happens then?
In the last stage of the Presidential campaign, Trump faced lawsuits accusing him of fraud and racketeering, which were centered on a series of wealth seminars called “Trump University” which collected over $40 million from consumers seeking to learn Trump’s real estate investing strategies. There are other cases including fraud and defamation as well.
There have been some previous instances where the President of the US was sued. Thodore Roosvelt was sued by a disgruntled police officer of New York (Hurley vs. Roosevelt). Although there was no merit in the case, the plaintiff keep appealing and the case was finally disposed off when Roosevelt became the President. In the same way, Harry S Truman (while serving as a Judge of a District Court) was sued by an attorney, and the suit was dismissed when he took the office of the President (DeVault vs. Truman). John F Kenney was sued for a car accident during the presidential campaign, which was later settled outside the Court (Bailey vs. Kennedy).
Indeed the US president does have some immunity, which was cemented when President Richard Nixon was sued for allegedly firing an employee in retaliation for unfavorable congressional testimony during his tenure. In the case of Nixon vs. Fitzgerald held in 1982, the US Supreme Court held that “in view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.” A more precise decision was delivered in the case of Bill Clinton vs. Paula Jones (1997). President Clinton was sued by Paula Jones in 1994, while he was serving his first term in the White House. She alleged that Clinton sexually harassed her while serving as Governor of Arkansas. The Supreme Court unanimously (9-0) held in May 1997 that a sitting president has no immunity from civil litigation involving actions undertaken before entering office. This case received further momentum with the entanglement of Monika Lewnski, and Clinton barely survived the impeachment in the Senate.
In an unprecedented manner, Donald Trump got his knees dipping in lawsuits, before and after the Presidential election. Some analysts believe that the fraud charges (if proved) has the materials of impeachment; and the states suing the US president in official capacity might add some more salt to the ensuing debate. Only time will say about the fate of the litigious president of the United States of America, and the implications might be far reaching for all concerned.
Shyikh Mahdi is a blogger based in Dhaka. He can be reached at [email protected]