Trump recently received a subpoena that would have forced him to testify at a trial. He appealed it saying he couldn't be compelled to testify as the sitting president. The appeal is now dismissed as moot since he is no longer president:

While president, Trump had tried to quash a subpoena that would force him to testify at the civil trial in the Bronx and sit for a videotaped deposition beforehand. In 2019, his lawyers appealed a judge’s order denying his request.

On Tuesday, the state’s Appellate Division dismissed Trump’s appeal as moot.

“This appeal concerning the proper standard for determining whether a sitting President may be compelled to give videotaped trial testimony about unofficial acts in a civil action against him or her is moot given that the rights of parties will not be directly affected by our determination,” the court said in its ruling, “and that there will not be an immediate consequence of the judgment.”


Why would the court do this instead of rule on it anyway? This sounds like it just postpones the ruling until some time in the future when it happens again. True, it might not happen again, but it also might. It feels like running away from a problem on the grounds that it doesn't need to be solved today, and therefore shirking responsibility.

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    It’s worth noting that “moot” in US English means “no longer relevant” while moot in other Englishes means “still open to discussion” (although the word is by no means in common usage). That is, they have almost exactly the opposite meaning depending on where you are.
    – Dale M
    Apr 28, 2021 at 6:15
  • @DaleM So as an American, telling a British English speaker their point is moot is just going to lead to an unrelated argument? I'll have to keep that in mind when I need to change the subject
    – TCooper
    Apr 28, 2021 at 23:26
  • The subpoena was issued on December 28, 2018. Is that "recent"?
    – phoog
    Apr 29, 2021 at 4:33
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    The auto-antonymic nature of 'moot' is context- not location-based.
    – mcalex
    Apr 29, 2021 at 5:26
  • Do you really believe that the former president (or anyone) would continue to pay for attorneys to argue this appeals case when it can no longer benefit them? The costs are significant for both sides, and there's no longer anything for them to win. Even if the judge didn't dismiss it, it's unlikely that either side would still want to pursue it. Apr 30, 2021 at 17:52

3 Answers 3


The court is not running away from the problem; Trump isn't president, so the problem has actually gone away.

Because there's no point in resolving a purely academic question, the courts generally accept the idea that it shouldn't spend taxpayer money on work that doesn't need to be done. When there are thousands of other cases working their way through the system, it doesn't make much sense for the court to answer questions that don't require answers.

The other reason for the mootness doctrine is that the courts believe they can get the best available information, argument, and advocacy from parties that actually have something to gain from winning the case. Here, the court can't trust Trump to argue the case because it doesn't know whether Trump has any real interest in defending the prerogatives of the presidency. Maybe he's planning to run again, but maybe he's more interested right now in making life miserable for President Biden. And if that's the case, maybe he'd like to tank the case so the Texas attorney general can start issuing subpoenas to the president and his son.

This tendency is the rooted in centuries of common-law precedent acknowledging that the courts shouldn't just sit around and offer answers to questions that aren't part of a real dispute. That principle resulted in the "cases or controversies" clause that limits the jurisdiction of Article III courts. There is no such constitutional limitation on the New York courts handling the case you're asking about, but they honor the mootness doctrine anyway. Society of Plastics v. Suffolk, 77 N.Y.2d 761, 772 (N.Y. 1991) (“Under the common law, there is little doubt that a "court has no inherent power to right a wrong unless thereby the civil, property or personal rights of the plaintiff in the action or the petitioner in the proceeding are affected." ”)

There are some exceptions to the mootness doctrine, including one for controversies that are "capable of repetition, yet evading review" -- essentially, for disputes that occur frequently but are too short-lived to be fully litigated. Abortion cases are a great example of this: If a woman is unable to obtain an abortion, she generally has less than nine months to take a case from filing through all its appeals before the baby is born, mooting the case.

But that exception isn't a good fit for Trump's case, because subpoenas like this to sitting presidents aren't all that common, and the four or eight years of a presidential term are typically going to be enough time to fully litigate the question.

This is especially true given the speed with which courts typically resolve cases that pose a credible threat to presidential prerogatives. For instance, Trump challenged another subpoena in Trump v. Vance, 140 S. Ct. 2412, (2020). In that case, the prosecutor issued the subpoena on August 1, 2019, and it was less than a year before the U.S. Supreme Court had weighed in.

So even though it's possible that the issue could come up again without being resolved before the president is out of office, it is not particularly likely, and therefore not a good candidate for resolution despite its mootness.

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    You might want to add that in the US, Federal courts are Constitutionally prohibited from considering moot cases unless the decision is likely to impact many other cases. Some State constitutions also prohibit this; others don’t.
    – Dale M
    Apr 28, 2021 at 6:12
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    @Barmar Yes, but the precedent is exactly the problem. The courts don't want to be stuck with a rule they came up to settle a dispute where one side can't be trusted to present its most persuasive arguments. There is an exception to avoid the treadmill problem, though; I've amended my answer to address that question.
    – bdb484
    Apr 28, 2021 at 15:56
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    Thanks. Your last paragraph, of course, raises the "January exception" issue that came up with Trump -- they're effectively immune from punishment for something they do close to the end of their term. But as you say, this doesn't come up often enough to warrant the mootness exception.
    – Barmar
    Apr 28, 2021 at 16:00
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    @Barmar Trump can still be subpoenaed, but now he can't avoid the subpoena by being the sitting president, thus the mootness. Apr 28, 2021 at 17:59
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    @Allure Ah, I see what you're saying. The problem is that the rule is phrased a bit more broadly than it's applied. It's not enough for the moot issue to simply be "capable" of repeating without being reviewed. Instead, the court is going to ask whether the issue -- by its very nature -- is going to evade review because of time constraints. I'm about to add a bit more to the answer about why that isn't the case here.
    – bdb484
    Apr 29, 2021 at 18:28

Federal (Article III) courts only may adjudicate current and ongoing controversies, that exist along the whole case length.*

A case initially presenting all the attributes necessary for federal court litigation may at some point lose some attribute of justiciability and become “moot.” The usual rule is that an actual controversy must exist at all stages of trial and appellate consideration and not simply at the date the action is initiated. Source

Mr. Trump was subpoenaed in late 2018 and appealed in or around early 2019 with the argument: While I am POTUS, I can't be subpoenaed to testify. That appeal was up for decision in the New York Court of Appeals and entered the docket in 2019.

On January 20th, Mr. Trump stopped being POTUS. His argument lost the foundation, the case if he, as sitting POTUS, could be subpoenaed became no longer a controversy: he became a private citizen that noon.

Since this is in the state court and not the federal court, the rules of the New York Court of Appeals are to be looked at, which pretty much mirrors the Article III mootness doctrine. It's right in the text there, that the case has to be dismissed:

V. APPEALABILITY AND REVIEWABILITY B Appealability 4 Miscellaneous Appealability Problems f Mootness

Where the issues presented are no longer determinative of a live controversy, the Court will not entertain an appeal or motion for leave to appeal. The Court cannot entertain the motion or appeal because it cannot give advisory opinions (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714 [1980]). However, the Court may entertain an appeal or motion when each of the three prongs of the mootness exception is satisfied: "(1) a likelihood of repetition . . .; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e. substantial and novel issues" (id. at 714-715).

As the case was no longer current and ongoing and can not fulfill the 3-prong test, the case is indeed moot and has to be dismissed.

*Only if presidential terms would be as frequent and short as pregnancies (evading review, repetition-able, important question), the court might need to rule on a technically moot case because the fact pattern is bound to repeat itself. But presidential terms are 5.5 times as long and subpoenas to POTUS are well below 100 per term, making that exception inapplicable.

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    @Trish I think the edit made your answer the best of the three so far. +1.
    – Allure
    Apr 29, 2021 at 8:38
  • @Allure Yes, this revision is a major improvement over the original. +1 also.
    – bdb484
    Apr 29, 2021 at 18:42
  • This is the only answer that's even close to correct, as it's the only one that points out that this is not something the US judiciary does as a matter of philosophy or optimal procedure, but rather as a matter of constitutional mandate (and sometimes law at the state level). Apr 29, 2021 at 19:32
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    @zibadawatimmy: That's just a matter of proximate vs ultimate causes. It's like the difference between answering "why is murder illegal" with "because people don't like it" or "because 18 U.S. Code § 1111 and a variety of state laws". Apr 29, 2021 at 21:55
  • @user2357112supportsMonica "because the lawmaker said so" is the better argument ;)
    – Trish
    Apr 29, 2021 at 21:58

For the same reason we don’t put the deceased on trial. It’s moot. John Doe may have been the worst serial killer ever, but if he’s dead, there’s no point having a fake trial, finding him guilty, and then sentencing him to prison (with or without the possibility of parole).

Even though it may settle a general issue in the future, it’s no longer a problem. If it’s no longer a problem, you can’t expect expect either side to work the case as hard as they would otherwise, let alone both. While one side may be pursuing principal or fame or something that would lead them to doing their best, it’s likely the other side would be pragmatic and just say “OK”. What would it even mean to pursue a clients best interest when the client no longer has an interest in the outcome?

Whatever happens, we know that at least for the next 4 years, Trump can’t decline to testify on the grounds that he is the sitting President. Whoever wants him to testify has at least that long to try to compel him to testify.

Wasting time on trying to prove that he could/could not have been compelled is not a good use of the court’s time. Particularly since going forward with that would clearly be a delaying tactic, which means that the other side would have a strong incentive to concede. “Your Honor, they are absolutely right, and we give up. Once you’ve ruled in their favor we would like to address the issue of....”

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