Elizabeth Alexander v. President Donald J. Trump

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ELIZABETH ALEXANDER, et al.,

Petitioners,

v.

PRESIDENT DONALD J. TRUMP,

Respondent.

No. 4D2025-1019

[May 28, 2025]

Petition for writ of certiorari to the Circuit Court for the Nineteenth

Judicial Circuit, Okeechobee County; Robert L. Pegg, Judge; L.T. Case No.

472022CA000246.

Charles D. Tobin, Chad R. Bowman, and Maxwell S. Mishkin of Ballard

Spahr LLP, Washington, D.C., and Paul R. Berg of Whitebird, PLLC, Vero

Beach, for petitioners.

Timothy W. Weber, Jeremy D. Bailie, and R. Quincy Bird of Weber,

Crabb & Wein, P.A., St. Petersburg, for respondent.

KLINGENSMITH, C.J.

Petitioners-Defendants Elizabeth Alexander, Anne Applebaum, Nancy

Barnes, Lee C. Bollinger, Katherine Boo, Nicole Carroll, Steve Coll, Gail

Collins, John Daniszewski, Gabriel Escobar, Kelly Lytle Hernandez,

Edward Kliment, Carlos Lozada, Kevin Merida, Marjorie Miller, Viet Thanh

Nguyen, Emily Ramshaw, David Remnick, Tommie Shelby, and Neil Brown

have filed a petition pursuant to Florida Rule of Appellate Procedure

9.100(c) for review of the trial court’s order denying their motion to

temporarily stay the underlying civil action given Respondent Donald J.

Trump’s status as President of the United States.

This case is before us for the second time. See Alexander v. Trump, 404

So. 3d 425 (Fla. 4th DCA 2025). In their petition, Petitioners assert they

are entitled to a stay of the underlying proceedings, including discovery,

because the Plaintiff-Respondent is the current President of the United

States. They argue a stay of the case will avoid the constitutional conflicts

arising from allowing Respondent to proceed as a plaintiff in a state court

civil action on claims that may involve his official conduct as the President.

For the reasons set forth below, we deny the petition and affirm the trial

court’s order.

Appellate courts have discretionary certiorari jurisdiction to review an

order denying a motion to stay an action. See REWJB Gas Invs. v. Land

O’Sun Realty, Ltd., 645 So. 2d 1055, 1056 (Fla. 4th DCA 1994); Fla. R.

App. P. 9.030(b)(2)(A). Similarly, a trial court has broad discretion in

ordering or denying a stay. Sauder v. Rayman, 800 So. 2d 355, 358 (Fla.

4th DCA 2001). That ruling will not be disturbed on appeal absent an

abuse of discretion, which for certiorari must be a serious error that

amounts to a departure from a clearly established principle of law. Office

Depot, Inc. v. Marsh & McLennan Cos., Inc., 937 So. 2d 1139 (Fla. 4th DCA

2006).

At the outset, we acknowledge that state court litigation involving a

sitting President raises unique and profound questions under the

Constitution. The President “occupies a unique position in the

constitutional scheme,” Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982), as

“the only person who alone composes a branch of government,” Trump v.

Mazars USA, LLP, 591 U.S. 848, 868 (2020). Because the President

embodies the Executive Branch of the federal government, state courts

must be restrained from interfering with his office’s operations under both

the Supremacy Clause, contained in Article VI, Clause 2, of the United

States Constitution, and Article II of the United States Constitution. See

Mississippi v. Johnson, 71 U.S. 475, 500 (1866) (“[T]he President is the

executive department.”).

Petitioners argue the trial court’s order denying their request to stay

the proceedings invites an unavoidable constitutional collision between

the trial court’s exercise of “[t]he judicial power” under Article V of the

Florida Constitution and Respondent’s exercise of “[t]he executive Power”

under Article II, as well as the Supremacy Clause. Petitioners further

argue allowing this matter to proceed while Respondent is in office will

interfere with his official duties and responsibilities under the

Constitution. Petitioners effectively ask that the court invoke a temporary

immunity under the Supremacy Clause on Respondent’s behalf to stay

this civil proceeding, even though Respondent has not sought such relief.

They further allege that it would violate due process to allow Respondent

to claim constitutional entitlement to stay cases because of his office but

not allow them the same ability.

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Article II, section 1, clause 1 of the United States Constitution, also

known as the Vesting Clause, provides that “[t]he executive Power shall be

vested in a President of the United States of America.” The United States

Supreme Court has held that the powers and immunities granted under

Article II, in addition to other privileges, belong to the President and can

be asserted by him. See United States v. Nixon, 418 U.S. 683, 708 (1974).

That privilege, like others, “relates to the effective discharge of a President's

powers,” and is “fundamental to the operation of Government and

inextricably rooted in the separation of powers under the Constitution.”

Id. at 708, 711. But such privileges are afforded to the President alone,

not to his litigation adversaries. See id. at 708.

Such privileges are not unique to the presidency. Other public officials

enjoy similar protections as well. See § 11.111, Fla. Stat. (2024) (providing

for the continuance of court proceedings during any session of the

Legislature when a member of the Legislature is a party, witness, or

attorney representing one of the litigants in the case). As explained in Ferri

v. Ackerman, 444 U.S. 193 (1979):

[Public servants] represent the interest of society as a whole.

The conduct of their official duties may adversely affect a wide

variety of different individuals, each of whom may be a

potential source of future controversy. The societal interest in

providing such public officials with the maximum ability to

deal fearlessly and impartially with the public at large has long

been recognized as an acceptable justification for official

immunity. The point of immunity for such officials is to

forestall an atmosphere of intimidation that would conflict

with their resolve to perform their designated functions in a

principled fashion.

Id. at 202–04. Likewise, a narrow immunity is given to Members of

Congress found in the Speech or Debate Clause, Article I, Section 6, Clause

1, of the United States Constitution, but by its express terms, such

immunity does not apply to non-officeholders. See Lake Country Ests., Inc.

v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 404 (1979). Although Ferri, 444

U.S. at 202-04, and Lake Country Estates, Inc., 440 U.S. at 404, address

absolute immunity from suit—which is not at issue in this case—the

justification for the immunity discussed in both cases is comparable to the

justification supporting the privileges afforded to the President, namely

preventing interference with the performance of a government official’s

designated functions.

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In this case, Petitioners claim the right to assert a constitutional

entitlement to a stay of the underlying proceedings like that available to a

President by invoking it on Respondent’s behalf. While government

officials may claim the immunities and protections provided to them in

court proceedings, the law is clear that such privileges are not available to

third parties to claim, nor may such privileges be asserted by others on

the officials’ behalf. See, e.g., United States v. Reynolds, 345 U.S. 1, 7

(1953) (executive privilege “can neither be claimed nor waived” by a third

party). The principle of standing says that, generally, one cannot assert

someone else’s constitutional rights. United States v. Hansen, 599 U.S.

762, 769 (2023); see also Warth v. Seldin, 422 U.S. 490, 499 (1975)

(explaining that a litigant must assert his own legal rights and interests).

Immunities and privileges, by their very nature, inure solely to the benefit

of the individual for whom they are intended. Thus, application of a

governmental immunity cannot be asserted by the Petitioners as private

citizens.

For their claim of entitlement to a stay of the underlying proceedings,

Petitioners rely primarily on Clinton v. Jones, 520 U.S. 681 (1997), and

Zervos v. Trump, 94 N.Y.S.3d 75 (N.Y. App. Div. 2019). 1 Petitioners also

reference the President’s arguments in another case pending against him

in a Delaware state court, where he has requested a stay of the proceedings

based on his status as a sitting President. See Defendant’s Motion to

Dismiss, or Alternatively, to Stay on the Basis of Temporary Presidential

Immunity, United Atlantic Ventures, LLC v. TMTG Sub Inc., No. 2024-0184-

MTZ (Del. Ch. Jan. 24, 2025). However, reliance on those cases is

misplaced.

Both Jones and Zervos involved requests by President Clinton and

President Trump, respectively, for stays in litigation when each was a party

defendant. But in both cases, the courts found that although the

President was certainly entitled to ask for a pause in the underlying legal

proceedings, he was not necessarily entitled to one as a matter of law. In

Jones, the Supreme Court held President Clinton could be sued in federal

court for alleged sexual advances that occurred before becoming President.

520 U.S. at 685, 693-95. The Court further held that “the doctrine of

separation of powers does not require federal courts to stay all private

actions against the President until he leaves office.” Id. at 705-06. The

Court also recognized that, while the trial court had discretion to stay the

1 This court is not bound by the decisions rendered in Zervos or in any other state

court relating to stays of those proceedings. See J. J. Murphy & Son, Inc. v. Gibbs,

137 So. 2d 553, 562-63 (Fla. 1962).

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case, discretion would have been abused under the circumstances. Id. at

706-08. In Zervos, a New York court held that President Trump, as the

sitting President of the United States, was not entitled to a stay in a state

court action grounded in claims of defamation brought against him based

on alleged actions that occurred before taking office. 94 N.Y.S.3d at 78,

82-88.

Petitioners also rely on Zervos and United Atlantic to assert that

Respondent is estopped from objecting to their request to pause this case

because of legal arguments made on his behalf seeking stays in other

courts. These cases are not substantially similar to the one at bar to estop

Respondent from objecting to a stay. By trying to draw parallels to those

cases, Petitioners conflate situations where the President is a defendant in

an action, in contrast to this case, where the President is the plaintiff.

Because those cases involve situations where a President was the

defendant on claims brought against him, and not a plaintiff pursuing

claims initiated by him, those cases are inapposite.

Petitioners correctly point out that whenever a President is sued in state

court in his individual capacity, and attempts are made to institute

compulsory process over him, the risk of distractions to his public duties

in dealing with such lawsuits creates an inherent risk to the effective

functioning of government. Such lawsuits subject a President not only to

potential harassment, but also risk diverting him from his official duties

which are of “unrivaled gravity and breadth.” Trump v. Vance, 591 U.S.

786, 800 (2020). That is not in dispute.

However, this is not a case where the state court is asserting

jurisdiction over Respondent without his consent. Quite the contrary.

Here, Respondent is a willing participant in the underlying proceedings

and has thus far declined to assert a privilege to cease this action. Even

though litigants may be entitled to claim a privilege, they may also

voluntarily elect not to. See Garner v. United States, 424 U.S. 648, 653

(1976) (explaining that the Fifth Amendment privilege against compulsory

self-incrimination does not prevent a person from voluntarily testifying in

matters that may be incriminating); Gay v. Whitehurst, 44 So. 2d 430, 432

(Fla. 1950) (“One may waive or remit any constitutional or statutory

privilege made for his personal benefit.”).

Here, Respondent has not sought the affirmative relief of a stay in the

trial court. When the President is a willing participant, courts do not risk

improperly interfering with the essential functioning of government. The

President—by virtue of his exceptional position—is uniquely equipped to

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determine how to use his time, to assess the attention a lawsuit will

require, and to decide whether the lawsuit will divert him from his official

business. When an officeholder chooses to initiate litigation, courts must

assume the officeholder already has weighed the burdens on their official

duties. Although Petitioners raise several claims about how this case will

negatively impact Respondent’s ability to perform his duties as President,

the trial court correctly observed that the filing of any request for a stay or

other relief from court orders in the underlying proceedings because of his

role as the nation’s Chief Executive would be solely in his prerogative:

Should the duties of the President interfere with his ability to

perform his obligations in this action, he is certainly entitled

to seek the appropriate relief. Should he not do so, yet not

comply with the rules of this court, defendants may apply for

the appropriate sanctions as they would against any other

plaintiff. These could be the usual sanctions of fines, costs,

attorney’s fees, and the ultimate sanction of dismissal of the

action should that be appropriate. Defendants would not be

precluded from seeking another stay of the proceeding if

plaintiff fails to perform his obligations under Florida law and

the [R]ules of [C]ivil [P]rocedure.

Although Petitioners claim this litigation will be a distraction to the

Presidency, Respondent is in the best position to determine if these

proceedings would be a diversion and interfere with the obligations of his

office, or whether his continued participation is consistent with the

performance of his official responsibilities. And, as the trial court correctly

pointed out in its order, Respondent also retains the right to either dismiss

this case or seek a stay in the future should an assessment of his time

commitment change, or if scheduling issues arise due to circumstances

occurring during the litigation. Further, if such issues were to occur,

courts have flexible tools to handle timing without freezing litigation

altogether. See Fla. R. Civ. P. 1.090(b)(1) (“In General. When an act may

or must be done within a specified time, the court may, for good cause

extend the time[.]”); Fla. R. Civ. P. 1.460 (permitting trial courts to grant

motions to continue upon good cause shown).

In sum, the right to claim burdens on executive functions belongs to

the Executive Branch—not to its opponent. Separation of powers protects

the Executive from undue burdens imposed by other branches, not

burdens which the Executive willingly accepts. While both Article II and

the Supremacy Clause operate as a shield to protect both the President

and the Presidency from the risks of harassment and distraction by being

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hailed into state courts as an unwilling defendant, those same protections

may not be used by his adversaries as a sword to prevent Respondent from

voluntarily initiating or continuing civil litigation in his individual capacity.

Though Petitioners raise several speculative concerns about the potential

impact this litigation may have on the ability of Respondent to fulfill his

Presidential duties, they lack standing to raise such concerns. Courts

should focus only on real burdens raised by the Executive as a plaintiff,

not those hypothesized by any defendants. Whether the pursuit of this

litigation is in his best interests, or consistent with the responsibilities of

his office, is exclusively within Respondent’s purview. Therefore, the

petition for review is denied.

Petition denied.

WARNER and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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