Three law professors who 20 years ago submitted an amicus brief arguing that Bill Clinton wasn't immune from civil suit during his presidency are again appearing in court to make a similar contention with respect to Donald Trump. On Tuesday, Pennsylvania Law School professor Stephen Burbank, Harvard Law School professor Richard Parker,and University of Texas law professor Lucas Powe Jr. submitted a proposed amicus brief in Summer Zervos' defamation lawsuit against Trump.
Zervos, who appeared on season five of The Apprentice, alleges her reputation was damaged when Trump accused her of making up a story about being kissed and attacked in a hotel room in 2007.
In response to the lawsuit, Trump's attorney characterizes the lawsuit as "politically motivated" and asserts that the U.S. Constitution forbids this case from proceeding at this juncture. The argument is grounded upon the Supremacy Clause, which a dismissal motion interprets as meaning "that state governments, including their courts, refrain from interfering in the operations of the federal government."
"No one in our nation is above the law, not even the President," responds the professors' amicus brief. "The Supreme Court has accordingly held that the Constitution does not immunize the President against civil suits based on conduct that is wholly unrelated to the President’s execution of his office."
That refers to Clinton v. Jones, a 1997 U.S. Supreme Court opinion regarding a lawsuit that Paula Jones filed against Bill Clinton in 1994, while he was serving his first term in the White House. Jones alleged that Clinton sexually harassed her while serving as Governor of Arkansas. Clinton's attorneys argued that in all but the most exceptional cases, any litigation against the president should be deferred until he left office. In 1997, the high court came back with its answer that a president can't escape private litigation.
Notwithstanding the ultimate conclusion, Trump's lawyer seized upon a footnote in the Jones opinion where Justice John Paul Stevens wrote that it was "not necessary to consider or decide whether a comparable claim might succeed in a state tribunal."
According to the defense, a president being sued in state court while in office is a "crucial threshold issue," raised, but not decided by the Supreme Court.
The law professors argue Trump's lawyers are misinterpreting what the Supreme Court wrote.
"The concern animating footnote 13 is not that a civil suit against a President in state court would inherently raise a problem for federal supremacy," states the amicus brief. "It is that a certain subset of such lawsuits could raise such a problem. Specifically, a problem could arise if a state court were to order the President to take or refrain from taking some action, or to appear personally at a specific time.... The Supreme Court’s concern with 'direct control' is not implicated in the current case. Ms. Zervos’s suit does not attempt to force a sitting President to execute or abstain from executing his duties. Indeed, this suit has nothing to do with the defendant’s federal duties."
The law professors also contend that the Supremacy Clause is about the status of federal laws, not the status of federal officials. The amici reject the narcissistic view of the U.S. Constitution that claims that federal officials are entitled to be exempt from non-federal legal authority. They add that if state-court litigation is perceived to interfere, Congress could enact such immunity, but "any concerns about the burdens on Presidential defendants should be tempered by an overriding reality about the frequency of civil litigation against sitting Presidents: it barely ever happens. Even after Jones prominently announced that sitting Presidents are amenable to suit, four full Presidential terms went by without any President’s having to spend significant time on civil suits brought against him in his personal capacity."
Represented by attorneys at Ropes & Gray, with assistance from The Protect Democracy Project and University of Michigan Law School professor Richard Primus, the professors also speak about how New York's judicial system "is in some ways more able to shield" presidents from unnecessary litigation. That's because in New York, litigants are afforded wide opportunity to make interlocutory appeals, meaning appeals of judgments before any trial is conducted.
The ability to quickly appeal is also why the Zervos case stands a good chance of eventually climbing the ladder to the U.S. Supreme Court before the merits of her claims get adjudicated.