President Donald Trump during a meeting in the Roosevelt Room at the White House on Nov. 28, 2017 in Washington, DC.
Kevin Dietsch/Pool—Getty Images
By Tessa Berenson
December 15, 2017

Summer Zervos, a former Apprentice contestant who claims Donald Trump sexually assaulted her in 2007, is suing the president in state court for defamation. But now that Trump is in the White House, the suit raises an important new question: can someone bring a civil lawsuit in state court against the President of the United States?

Trump’s lawyers say no. “State court can’t exercise any control over the president under any circumstances,” Trump’s lawyer Marc Kasowitz argued in New York state court in early December. The motion to dismiss the case, Kasowitz continued, is about “protecting the ability of the president to do his constitutionally mandated job.”

In court filings, Trump’s team has cited the Supreme Court’s 1982 decision in Nixon v. Fitzgerald, which held that the president has “absolute immunity” from being held liable for damages in civil lawsuits for conduct within the “outer perimeter” of his official presidential duties. “Because of the singular importance of the President’s duties,” the decision reads, “diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.”

This is a key element of Trump’s lawyers’ argument for why he can’t be sued in state court. But there are limits to the holding in Nixon v. Fitzgerald as it’s concerned here: the case only applied to civil suits in federal court, not state court, and only to civil suits related to official actions as president, not personal conduct.

Zervos is seeking an apology and at least $2,914 in damages from Trump in the lawsuit she filed, which states that she “has suffered as a direct result of Mr. Trump’s false, defamatory statements, both emotionally and financially.” During the presidential campaign, Trump said Zervos and other women who accused him of sexual misconduct were lying and suggested Hillary Clinton’s campaign brought them forward.

It’s a later Supreme Court case, 1997’s Clinton v. Jones, that introduces private acts to the patchwork of laws on presidents and civil lawsuits. This time, 15 years after the prior decision, facing a case in which former Arkansas state employee Paula Jones accused President Bill Clinton of sexual harassment, the Supreme Court said the Nixon v. Fitzgerald ruling on immunity from civil damages did not apply to “unofficial conduct” by the president.

“We have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity,” the Court held. “The 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.”

This decision is good for Zervos’ team, ruling definitively that presidents can be sued while in office for private conduct.

Clinton v. Jones makes clear that this Defendant is not entitled to qualified immunity — or any other species of official acts [of] immunity — because this case involved unofficial conduct by Defendant before he assumed office,” Zervos’ lawyers said in a court filing earlier this year. “Precisely because Defendant’s underlying tortious behavior has nothing to do with his current duties or office, and because it occurred before he took that office, he does not have immunity from suit.”

But again, there’s a critical unanswered question in the Clinton v. Jones opinion: that case only applies to litigation in federal court, and did not decide the issue of whether a civil suit can be brought against a sitting president in state court.

In fact, the Supreme Court made it an explicit point not to rule on that question, explaining that state court suits could raise different legal questions than the ones decided in Clinton v. Jones. “Because the Supremacy Clause makes federal law “the supreme Law of the Land,” any direct control by a state court over the President, who has principal responsibility to ensure that those laws are ‘faithfully executed,’ may implicate concerns that are quite different from the interbranch separation of powers questions addressed here,” the majority opinion notes in a footnote.

The power difference between state and federal court arises in part from the Supremacy Clause of the Constitution, which establishes that federal law is supreme and prohibits states from interfering in federal functions. But in civil suits, “there’s no absolute immunity from being sued in state court for a president,” explains Samuel Issacharoff, constitutional law professor at New York University Law School. He gives the example of if a president and his or her spouse wanted to get a divorce while in office — that would be handled in state court.

“Divorce matrimonial matters are not actionable in federal court, and it is inconceivable that we would make [the spouse] wait four or eight years [to get a divorce],” Issacharoff says. “The ordinary conduct of the life of the president as an individual may give rise to legal issues, and we’ve never said that there’s immunity from that.”

And some legal experts think that footnote was merely standard practice by the Supreme Court to limit the scope of its ruling on a constitutional issue, and that there’s no reason to think the Court wouldn’t have decided the case the same way had it been a state court in question.

“There’s nothing in the opinion that would militate heavily against the same type of process in state court,” says George Washington University Law School professor Jonathan Turley. “Indeed, one could argue that the federal system has a greater likelihood to recognize a form of immunity than the state system. Under federalism principles, these are two different systems, and the state system has its own independent authority and right to pursue defendants.”

So as it stands now, Trump cannot be held liable for civil damages in conduct related to his presidential powers, but he can be held liable in federal court for civil damages related to his personal conduct before he became president. And if any presidency will lead to a clear decision on whether he can be subject to a civil suit on personal conduct in state court, there’s good reason to think it might be Trump’s.

“President Trump came to office dragging a long chain of existing civil lawsuits,” says Turley. “No president has come to office with as much experience as a litigant as President Trump.”

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