The president can sue you, but you can’t sue him.
It seems like an absurd thing to say but that’s effectively the reality of our legal system today, one that has become increasingly alarming during Donald Trump’s second term. It’s a dynamic that has been thrust into the center of national politics amid Trump’s lawsuit against The Wall Street Journal over the paper’s reporting on his relationship to the late convicted sex offender Jeffrey Epstein.
The Supreme Court has been steadily building up an extraordinary level of immunity for presidents, on both civil and criminal fronts. And Trump has benefited from — and exploited — the law like no other president in American history.
Last year, in the case concerning his efforts to overturn the 2020 election, Trump became the first president in U.S. history to receive criminal immunity from prosecution — based on a previously nonexistent doctrine that has no credible basis in the Constitution’s text or the Framers’ expectations. The decision paved the way for Trump’s reelection.
On the civil side, Trump has frequently invoked presidential immunity established in decades-old Supreme Court precedent to force civil plaintiffs with serious legal claims against him to endure years of litigation just to get him into the courthouse. Only a few ultimately succeeded, including the plaintiffs seeking to hold him liable for his conduct surrounding the siege of the U.S. Capitol on Jan. 6, as well as E. Jean Carroll, who managed to secure roughly $90 million in two cases regarding allegations he sexually assaulted her; she is now facing yet another effort by Trump to toss the case out on the theory — you guessed it — that he is immune from claims that he defamed her.
Yet somehow, Trump is free to sue the Journal over an unflattering story — this despite the fact that it concerns a subject that the Trump administration first placed into the public spotlight and which has attracted the public’s attention like virtually no other issue during Trump’s second term.
It does not make much sense that the president is too busy to defend against lawsuits but can go around filing his own. It means that Trump can use the law as both sword and shield, however he sees fit. But this fundamental incongruity in the law isn’t likely to change any time soon, especially under the current Supreme Court.
“In all these cases where the president can claim immunity from suit or a prosecution, yet is affirmatively going to court while he’s president — it really is asymmetry in the extreme,” Ted Boutrous, a well-regarded free speech and media lawyer, told me. Boutrous happens to be experiencing this dynamic firsthand in the form of his work defending Mary Trump, the president’s niece and critic, in a New York state court lawsuit filed by Trump concerning her role as a source for The New York Times.
Trump’s case against the Journal, however, appears to mark the first time in American history that a sitting U.S. president has sued a media organization, despite the fact that on its face, the case is “extraordinarily weak” and “somewhat nonsensical,” as Boutrous put it. In fact, there’s a chance Trump ends up regretting he ever filed this lawsuit in the first place.
This episode is not surprising. Trump has a long history of threatening or actually suing media outlets, and his record is at best highly mixed.
He has lost cases filed by his campaign against The New York Times, CNN and The Washington Post. He literally lost another case last Friday when a judge dismissed Trump’s lawsuit against the journalist Bob Woodward after Trump claimed that he had some sort of copyright interest in Woodward’s own recordings of interviews with Trump. (You read that correctly.)
Trump has recently managed to secure large settlements from ABC and CBS’ parent company Paramount Global, but they are exceptions. ABC legitimately bungled its reporting in a serious way while the CBS settlement appears to reflect an effort to facilitate the merger between Paramount and Skydance.
Trump’s lawsuit against the Journal may provide some short-term political relief because it provides a rallying point for his supporters, but if history is any guide and the Journal holds firm, Trump will probably lose the case. That is what typically happens when Trump’s lawsuits against the media are not settled and proceed to a final judicial resolution with a credible judge. (Some potential bad news for Trump: The judge that has been assigned the case is not a Trump appointee like Aileen Cannon but a Barack Obama appointee.)
The weakness of Trump’s case is clear. To take just one example, the complaint alleges that the Journal’s story contains the following false statements, with the bold and italics drawn from the complaint itself:
The letter bearing Trump’s name, which was reviewed by the Journal, is bawdy—like others in the album. It contains several lines of typewritten text framed by the outline of a naked woman, which appears to be hand-drawn with a heavy marker. A pair of small arcs denotes the woman’s breasts, and the future president’s signature is a squiggly “Donald” below her waist, mimicking pubic hair.
If you read the language closely, you will notice that all of it could be true even if Trump himself did not author the letter, as he claims. The language quoted in the complaint appears to reflect careful reporting on the part of the Journal’s reporters, good lawyering by the paper’s attorneys or both. (POLITICO hasn’t independently verified the letter.)
On top of that, if the case is not dismissed or settled, it would proceed to discovery, in which the Journal’s lawyers would almost certainly get the chance to depose Trump both about the alleged letter and drawing as well as his broader relationship with Epstein — the latter of which would be relevant in assessing the credibility of Trump’s denial of his authorship. The Journal would also presumably seek all of Trump’s records or correspondence with Epstein — which again are relevant to the credibility of Trump’s denial and any potential motive to mislead the public about the letter.
Depending on how this all unfolds, the case could ultimately generate even more damaging revelations for Trump. Court proceedings are presumptively public, so anything that the Journal puts in court papers about the deposition or discovery more generally would be available to the whole country.
One cynical possibility: Trump knows all this and will never let the case get to discovery but was compelled to follow through on his threat to sue, so as not to lose face with his base. We have seen him do something similar in the past.
Setting aside the merits of the case, there is still something fundamentally strange about the idea that Trump can go around suing seemingly whoever he wants while everyone else is largely precluded from suing him.
The law on civil immunity for the president is relatively sparse. As a Congressional Research Service report last year noted, “This is perhaps unsurprising, given that presidential immunity is a legal doctrine with no explicit textual basis in the Constitution that has theoretically applied to only 45 individuals in all of American history — most of whom have not been faced with legal proceedings implicating questions of civil or criminal liability.”
In fact, the concept of civil immunity for the president has no basis either in the Constitution’s text or in prior historical practice, as the legal scholar Saikrishna Prakash has demonstrated.
President George Washington “was something of a regular litigant in court,” Prakash noted in a 2021 paper. “While threatening to litigate, bringing lawsuits, facing lawsuits and injunctions, Washington never suggested that he could not be sued or subject to judicial process.”
Today, two key Supreme Court decisions provide the guideposts for presidential immunity in civil cases.
First, in the 1982 decision Nixon v. Fitzgerald, the Supreme Court held that former President Richard Nixon was immune from civil suits concerning actions within the “outer perimeter” of his official duties. There were two key rationales: (1) that exposing presidents to civil liability for acts while in office would inhibit their decision-making because they would fear endless lawsuits; and (2) that civil lawsuits against presidents would distract them from their work for the nation as president.
Then, in 1997, the Supreme Court issued a decision in Clinton v. Jones in which the court held that President Bill Clinton was not immune from a civil suit filed by Paula Jones — who had accused Clinton of sexual harassment — because the case involved unofficial conduct on the part of the president.
Taken together, these cases create a distinction between the president’s official duties, where he is not civilly liable, and the president’s unofficial conduct, where he is.
That may seem sensible, but Trump has collapsed the distinction between official and unofficial conduct like no other president. He wields the power of the presidency against his critics and political enemies. And Trump himself made his private dealings with Epstein a matter of public concern — and now part of his official duties — by telling his supporters that he would release information from the so-called Epstein files and blaming the opposing political party (falsely) for stirring it all up.
Trump’s case against the Journal also marks a fundamental shift in the legal terrain: This is active litigation filed by the president himself based entirely on an event — the publication of the story on Epstein — that occurred during his presidency.
The upshot is that the law on civil immunity allows Trump to be a plaintiff and file lawsuits to advance both his personal and political interests, but everyone else is constrained by Trump’s immunity any time he can plausibly claim that his conduct has something to do with his role as president.
Trump’s executive orders targeting large law firms provide a useful example. Trump has made a variety of claims against the firms that refused to settle with him — for example, that the law firm Perkins Coie “manufactured a false ‘dossier’ designed to steal an election.” The firm has vigorously denied Trump’s charges.
If Trump were not the sitting president, the firm might plausibly have large monetary claims for defamation or tortious interference with the company’s contracts and business relationships. That is much harder in a situation where Trump can claim that he issued the executive order as part of his responsibilities as president and would therefore be immune from claims filed against him by the firm.
Even the Journal might plausibly have claims against Trump for defamation and tortious interference given the manner in which he has denied the veracity of the story — not just by denying that it was written by someone else, for instance, but by affirmatively declaring the letter was “FAKE.” The Journal may not assert its claims simply because the time and expense of litigating Trump’s immunity would be too high, and because the paper has its own large and influential public platform to defend itself.
Trump’s lawsuit also directly challenges one of the rationales for granting the president civil immunity in the first place. The notion that Trump doesn’t have time to defend against lawsuits while leading the country but can go around filing his own is hard to accept. If he’s not too busy with his job as president to sue other people, why is he too busy to be a defendant?
The stakes for the media, in particular, during Trump’s second term are significant.
“It really is an escalation and a disturbing threat to democracy and the First Amendment,” Boutrous said, “to have a sitting president who has the bully pulpit, who can simply respond and tell the whole world his side of the story [while] wielding defamation suits” against his critics.
Considering all this, you might be tempted to conclude that the Supreme Court would at some point step in and either refine the doctrine of presidential civil immunity or throw it out altogether. This is very unlikely to happen.
We know this because the court’s Republican appointees already relied on the decision in Nixon v. Fitzgerald — which first established civil immunity for presidents — to justify their decision to give Trump criminal immunity last summer.
The conservative majority’s reasoning and approach to court precedents have also been tilted decidedly in favor of Trump and the Republican Party, providing him with a host of dispensations and favorable rulings that have helped advance his second-term agenda.
There are many things to say about all this, but for the time being, if you are hoping that the current Supreme Court might step in and make it harder for Trump to exploit the law on presidential immunity as it currently stands — well, don’t hold your breath.
