The Legality of Suing a Sitting President
On Page 9 of her decision in Zervos v. Trump, Judge Jennifer Schecter of the Supreme Court of the State of New York for New York County begins her analysis with the sentence, “No one is above the law.” The decision has paved the way for lawyers to seek depositions from several women who have accused President Donald Trump of sexual harassment prior to being elected President of the United States.
In 2005, Summer Zervos was a contestant on the hit reality television show, The Apprentice. At the time, Donald Trump not only produced, but also starred in the show, which pitted contestants’ business skills against each other. Though he “fired” her from the show, Zervos and Trump remained in touch. Zervos alleges that two years later, President Trump kissed her twice on the lips without her permission and that he made other unwanted sexual advances on her.
Zervos made her allegations as Trump’s presidential election campaign ramped up in the summer and autumn of 2016. When asked about these allegations, Trump repeatedly accused her of being dishonest, stating in public that Zervos told “phony stories” and that her statements were “total fiction” and “all false stuff.”
Counseled by leading women’s rights attorney Gloria Allred, Zervos filed a defamation lawsuit in New York state court, alleging that Trump had harmed her reputation by implying that she was a liar. She argued that she suffered financial losses and emotional distress. In mid-March 2018, Judge Schecter denied Trump’s motion to dismiss. She cited both the statements that Trump made while campaigning and his Twitter posts and found that that Zervos had made a sufficient claim that Trump’s statements could constitute defamation. As such, Zervos’s lawsuit can move forward.
In the United States’ history, four sitting presidents have been subject to suits for private actions. Suits against Presidents Theodore Roosevelt and Harry Truman were dismissed and one involving President John F. Kennedy was settled. The fourth, Paula Jones’ lawsuit against President Bill Clinton, formed the basis of the 1997 Supreme Court of the United States case, Clinton v. Jones. In that case, the Supreme Court distinguished between “official” and “unofficial” conduct and ruled that a sitting president may be sued for the latter, but not the former.
Paula Jones had alleged that in 1991, while she was an Arkansas state employee, then-Arkansas Governor Bill Clinton made numerous “abhorrent” sexual advances towards her and that her supervisors punished her for rejecting them. Jones sued Clinton for intentional infliction of emotional distress and defamation.
Clinton argued that any action against him should be postponed until he left office. He argued that the powers and responsibilities of the presidency demand devotion of undivided time and attention to public duties and interests. If a sitting President is threatened by the risks of politically motivated lawsuits, then he’ll be distracted and won’t be able to serve the American public to the best of his abilities.
The Court disagreed with President Clinton. In an opinion written by Justice John Paul Stevens, it recognized that while a president must be shielded from liability for actions taken in office, so he can “perform designated functions effectively without fear,” that protection and immunity from civil suits in federal court does not extend to matters unrelated to the presidency. During a lawsuit for unofficial conduct, the high respect owed to the president’s office “is a matter that should inform the timing and scope of discovery,” but the Court reasoned that the separation of powers did not prohibit the federal courts from hearing Jones’ sexual harassment suit, reasoning that “[t]he litigation of questions that relate entirely to the unofficial conduct of the individual who happens to be the President poses no perceptible risk of misallocation of either judicial power or executive power.” In November 1998, President Clinton reached an out-of-court settlement with Jones, agreeing to pay her $850,000 but acknowledged no wrongdoing.
While the Jones decision ruled that a sitting president could be sued in federal court for unofficial conduct, it left unresolved the question of whether an aggrieved party can pursue a state court action against a sitting president. President Trump’s attorneys have argued that the Constitution’s Supremacy Clause protect him from civil litigation in the state court because placing a sitting president at the mercy of a state court would create tension between the federal and state governments.
The Supremacy Clause, Article VI of the U.S. Constitution, states: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” Since the President holds an important federal office and is responsible for executing the supreme law of the land, President Trump’s attorneys argued that a state court decision adverse to him would appear to take precedence over him.
However, Judge Schecter disagreed with President Trump, finding no conflicts with federalism. She held that President Trump’s presidential privileges aren’t a ‘get out of court free’ card, especially when the lawsuit is about alleged transgressions that predate his assumption of the presidency in 2017. She wrote “Nothing in the Supremacy Clause of the United States Constitution even suggests that the President cannot be called to account before a state court for wrongful conduct that bears no relationship to any federal executive responsibility.” Here, Zervos sued Trump for statements made on the campaign trail. Zervos is not suing Trump for what he did or said after becoming president. Like Jones, who was suing Clinton for actions taken before he was elected president, Zervos sued Trump for statements he made when campaigning and prior to his election.
Judge Schecter reasoned that a state court could accommodate President Trump’s needs or defer to him when he’s conducting Presidential responsibilities. For example, the state court presumably could not compel him to attend a trial on a day that his presence in Washington is needed for national security purposes. Delaying the lawsuit isn’t justified merely because the President may have to attend to a domestic or international crisis at any moment. Should any such crises arise, a court adjudicating the dispute will always recognize that his federal responsibilities take precedence and will handle the lawsuit accordingly.
Summer Zervos isn’t the only woman suing President Trump for defamation. Two other women, model Karen McDougal and adult film actress Stormy Daniels, have filed lawsuits against Trump in California for defamation after he publicly denied sexually harassing them and questioned the truthfulness of their allegations. Though it appears that the floodgates for similar civil suits are now opened, Professor Edward Foley, director of Election Law at The Ohio State University’s Moritz College of Law, cautions against reaching such a conclusion. He said that the state courts adjudicating each suit will exercise individual discretion when reaching a decision as to whether to allow the suits to go forward. A state court will recognize that on the one hand, “the judiciary will want to look to the principle that no one is above the law,” while on the other, there is “the risk of a civil lawsuit being a genuine distraction such that it outweighs the interests of the litigants in the civil suit.”
In response to the New York State Supreme Court decision, President Trump’s attorney, Marc Kasowitz, announced that he would appeal Judge Schecter’s decision immediately. For a President who relishes the spotlight, it doesn’t appear that it will be taken off him any time soon.
 CHUTZPAH, FEATUREAN INTERVIEW WITH GLORIA ALLRED, 43 Litigation 36, (2017).
 Mark Niles, “Nothing but Mischief: The Federal Tort Claims Act and the Scope of Discretionary Immunity,” 54 ADMIN. L. REV. 1275, (2002).
 U.S. Const. art. VI