John Dean: Can Trump Claim Immunity From His Defamation Suits?

This article first appeared on the Verdict site.

On January 17, 2017, three days before Donald Trump was sworn in as president of the United States, Summer Zervos filed a lawsuit against him in a New York state court in Manhattan, for defamation.

Zervos was one of several women who came forward after the Access Hollywood recording of Trump boasting to Billy Bush that he could sexually assault any woman he wanted and get away with it, only to later claim his own statement was untrue and merely locker-room talk.

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Trump called all the women who claimed they had been sexually assaulted by him liars and worse—repeatedly trashing them during the final weeks of his presidential campaign.

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Summer Zervos tells reporters about allegations of sexual misconduct against Donald Trump, alongside lawyer Gloria Allred, in Los Angeles November 11. John Dean writes that Zervos’s lawsuit is merely one of some 75 lawsuits currently pending against the president, but it is a uniquely important case because Trump, through his attorneys, is claiming that he cannot be sued now that he is president. Kevork Djansezian/reuters

Zervos’s lawsuit is merely one of some 75 lawsuits currently pending against the president, according to USA Today. But it is a uniquely important case because Trump, through his attorneys, is claiming that he cannot be sued now that he is president.

Accordingly, he has requested the judge in the case stay it until he is no longer in the White House—and if Trump has his way that would be in 2025 after finishing his second term.

Trump’s lawyers are requesting the New York court delay their answering the complaint filed by Zervos until after they have filed a motion, and the court has ruled on that motion, addressing President Trump’s immunity from such a lawsuit while serving as president.

This question of presidential immunity is not new, for the U.S. Supreme Court addressed it in Nixon v. Fitzgerald (1982) and Clinton v. Jones (1997). But Trump is trying to create an additional exception to the established law based on the fact that Zervos filed in a New York state court rather than a federal court.

Let me explain.

Presidential Immunity from Civil Lawsuits

In a lawsuit filed by a contract employee at the Department of Defense, President Nixon was named as a defendant. Nixon moved to be dismissed from the action, claiming presidential immunity from such a civil lawsuit.

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While the federal trial court and court of appeals rejected Nixon’s claim, the U.S. Supreme Court agreed in a 5-4 ruling. The court’s ruling that a president is immune from civil litigation for his “official actions” appears based on common sense (footnotes and citations omitted):

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The President’s unique status under the Constitution distinguishes him from other executive officials. Because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. As is the case with prosecutors and judges—for whom absolute immunity now is established—a President must concern himself with matters likely to “arouse the most intense feelings.”

Yet, as our decisions have recognized, it is in precisely such cases that there exists the greatest public interest in providing an official “the maximum ability to deal fearlessly and impartially with” the duties of his office. This concern is compelling where the officeholder must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system.

Nor can the sheer prominence of the President’s office be ignored. In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages.

Cognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.

The scope of this presidential immunity, which covers “official acts within the scope of the Executive authority” of a president, is not always clear.

For example, Donald Trump clearly defamed former president Barack Obama, tweeting on March 4, 2017, as follows: “How low has President Obama gone to tapp [sic] my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!”

Trump is accusing Obama of a serious felony, and it has been shown he has no evidence whatsoever that this action occurred, or that Obama was involved in any such activity even if it did occur.

Similarly, Trump has defamed a former Obama administration national security adviser, Susan Rice. As reported by The New York Times, Trump repeated a claim of a right-wing publication that Rice had leaked names of Americans overhead in national security surveillance, and without any supporting evidence, claimed she had committed a crime.

Are Trump’s gratuitous defamations of former President Obama, and his national security adviser, official actions by President Trump? While he would probably make this claim, it is doubtful any court would agree with him. We will never find out, because neither Obama nor Rice will bring an action against him, stooping to his level.

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Trump’s Effort to Stretch Presidential Immunity

In Summer Zervos’s case, on March 27, 2017 Trump’s attorneys filed a motion seeking further delay answering the complaint, as well as bifurcating the proceedings, and blocking the media coverage of the lawsuit. It is not clear why they delayed until now to announce they will request the court grant immunity to Trump, now that he is president, or as stated in their motion:

Defendant Donald J. Trump, the President of the United States, intends to file a motion to dismiss this action on the ground, among others, that the United States Constitution, including the Supremacy Clause contained therein, immunizes the President from being sued in state court while in office. This crucial threshold issue was raised, but not decided, by the U.S. Supreme Court in Clinton v. Jones . . . .

Paula Jones filed a lawsuit against Bill Clinton on May 6, 1994, some 16 months after he had become president of the United States. Jones’s lawsuit arose from events she said occurred on the afternoon of May 8, 1991, when she was an Arkansas state employee working the registration desk at an official conference held at the Excelsior Hotel in Little Rock, Arkansas, and when Clinton was governor.

Jones claimed that a state trooper from Governor Clinton’s protective-detail requested she go to the governor’s room after his speech, where Clinton dropped his pants and solicited oral sex. Because she refused, she said she was later subject to retribution in her job working for the state.

Later, when Clinton became president, Jones said the state trooper told reporters she had acceded to Clinton’s sexual request, and that agents of Clinton falsely called her a liar. Jones filed her lawsuit in federal court seeking damages for violations of her civil rights, and intentional infliction of emotional distress and defamation.

When the suit was filed, Clinton promptly responded with a motion to dismiss it based on presidential immunity. The federal district court granted Clinton immunity and deferred the case until he completed it. The federal court of appeals reversed the ruling, holding the president liable like any other citizen.

A unanimous U.S. Supreme Court agreed there was no presidential immunity for “unofficial acts” of a president, merely because he was president, and since these actions occurred before Clinton became president they clearly were not official actions.

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In issuing this ruling, however, Justice Stevens noted that Jones had filed a federal lawsuit, so the court was not expressing any opinion regarding presidential immunity from a state lawsuit.

More specifically, Justice Stevens wrote:

It is not necessary to consider or decide whether a comparable claim might succeed in a state tribunal. If this case were being heard in a state forum, instead of advancing a separation of powers argument, petitioner would presumably rely on federalism and comity concerns, as well as the interest in protecting federal officials from possible local prejudice that underlies the authority to remove certain cases brought against federal officers from a state to a federal court [citations omitted]. Whether those concerns would present a more compelling case for immunity is a question that is not before us.

This is the narrow passage Trump’s attorneys are relying on to find that President Trump is entitled to immunity that was denied Bill Clinton. As many legal commentators have noted, the underlying basis of the High Court’s ruling is that no president is above the law.

It would, in fact, be more than ironic for the current Supreme Court to rule that because Zervos selected to file in a state court—although it appears she could also have filed a federal (diversity) action—that Trump is, in fact, above the law!

As the Zervos case works its way through the courts, it raises a question only the Supreme Court can answer when it did not address lawsuits against presidents filed in state courts. And it can only be answered in Trump’s favor if our highest court has become as blindly partisan as the rest of Washington.

John W. Dean was a counsel to President Richard Nixon.

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