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.