//  12/21/17  //  Commentary

Cross-posted from Balkinization

Twenty years ago, the Supreme Court in Clinton v. Jones ruled unanimously that a sitting President may be sued for conduct occurring before he became President.  Jones was a suit in federal court, so the decision in that case does not resolve the question of whether a sitting President may be sued in a state court in otherwise parallel circumstances.  Right now, there is a pending suit in state court in New York raising that next question.

The suit, Zervos v. Trump, involves a defamation claim brought by a former contestant on the television show The Apprentice.  In 2016, when Donald Trump was campaigning for the Presidency, now-plaintiff Summer Zervos was one of several women who accused Trump of having sexually harassed them in the past.  Trump responded in public, saying some things about Zervos that Zervos alleges constituted actionable defamation under New York law.  Trump’s legal team is arguing that the suit cannot proceed because a state court cannot exercise jurisdiction over a sitting President; in their view, Clinton v. Jones should be limited to federal court.  On the other side, Zervos argues that the principle of Clinton v. Jones should govern in state courts and that plaintiffs may indeed sue sitting Presidents there, subject of course to appropriate docket-management in consideration of the unique demands on a President’s time.  (For doctrinal purposes, the demands on a President’s time are, and I think should be, imagined as constant from President to President, regardless of how the particular President who is the defendant in a given case actually spends his or her time.)   

I’m open to the view that Clinton v. Jones was a hard case, even though it was decided unanimously.  But it seems to me that if Jones is the law, which it is, then Presidents should be subject to suit for pre-presidential conduct in state courts as well as federal ones.  There are various reasons why one might think that a line should be drawn between the two kinds of courts, but on closer inspection I don’t think any of them holds up well.  So, as part of a team that included lawyers from the Protect Democracy Project and the law firm of Ropes & Gray, I submitted an amicus brief in the case explaining why.  The brief is submitted on behalf of three law professors who, twenty years ago, filed an amicus brief in support of Paula Jones’s right to sue Bill Clinton.

I won’t here rehearse the substantive arguments that seem to me persuasive.  That’s what the brief is for.  But I’ll mention two quick points.  First, one might worry that if Presidents can be sued in state courts, there will be no end of vexatious, politically motivated lawsuits before state judges whose own distaste for the relevant Presidents will encourage the judges to be complicit as the politically motivated plaintiffs wreak havoc for Presidents.  In principle, I see the worry.  But the strength of this concern needs to be assessed, I think, in light of a striking fact: between Bill Clinton and Donald Trump, our legal system went through four complete presidential terms without any such vexatious litigation, even though Jones stood as an invitation to try and even though there was no shortage of people with pronounced distaste for Barack Obama or George W. Bush.  Indeed, those four terms saw basically no vexatious litigation against Obama or Bush in their individual capacities even in federal court, where Jones was conspicuously holding the door open.  So perhaps we can’t simply assume that rejecting a state-court immunity will bring on a deluge.  Second, if people were to think that the risk of tying up a President with vexatious litigation is still too great to warrant a rule requiring Presidents to answer for their non-Presidential actions in state court, the problem could easily be solved by Congress through the creation of either an applicable tolling statute or a Presidential-removal provision.  In the absence of such a legislative solution, the case for judicially deeming Presidents subject to suit in federal courts but not state courts strikes me as weak.  

Readers interested in a more extensive explanation for why are encouraged to read the brief.

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