Ahoy there, fellow law nerds!
In light of the news that President Donald Trump is facing a defamation lawsuit in connection with allegations that he assaulted a woman by the name of Summer Zervos, the question on many of our minds is whether or not Trump can even be sued while he’s the president of the United States.
We know what Trump’s position on the matter is: He thinks that the Constitution immunizes him from being sued in state court while he’s in office.
“But wait!” you might be thinking. “Paula Jones filed a lawsuit against Bill Clinton alleging sexual assault and the U.S. Supreme Court permitted that lawsuit to proceed in its 1997 decision in Clinton v. Jones. Why is this different?”
Allow us to explain.
Summer Zervos, who was a contestant on the fifth season of The Apprentice in 2006, came forward in October of last year, after “Grab Them by the Pussy”-gate rocked the nation. Zervos accused Trump of groping and aggressively kissing her back in 2007 when she met with him at a Beverly Hills hotel as part of her attempt to get a job with the Trump Organization.
Trump, of course, denied her allegations, claiming that her story—like the story of myriad other women who have accused him of sexual misconduct—was a “total fabrication.” He took to Twitter, as he is wont to do, to accuse Zervos of being a “phoney” [sic] and suggest her allegations were a “hoax.”
Zervos, through her attorney, demanded a retraction, but to the surprise of exactly no one, Trump did not provide one. So Zervos sued him, alleging that “it was Donald Trump who was lying when he falsely denied his predatory misconduct with Summer Zervos, and derided her for perpetrating a ‘hoax’ and making up a ‘phony’ story to get attention.” The complaint also alleges that the defamation was “detrimental to Ms. Zervos’s reputation, honor, and dignity.”
Whether or not her allegations are a hoax is ultimately what the lawsuit will decide; for something to be defamation, it has to be a false statement.
The question is: At what point will Zervos be able to proceed with her claims?
That’s up to the courts.
Generally, government officials have immunity when it comes to official conduct. That means that you can’t sue the president for actions they take in their capacity as president of the United States.
And this makes sense. The purpose of immunity is so that government officials, like the president, can do their jobs without being concerned that everything they do will ultimately lead to personal liability in a lawsuit. The nature of those jobs means that some people will be upset regardless of the specific actions; absent immunity, the president would constantly be defending lawsuits and wouldn’t be able to get any work done.
As the Supreme Court pointed out in Clinton v. Jones, “Immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability.”
But presidents are not immune from liability for unofficial conduct. And since Zervos’ allegations plainly have nothing to do with Trump’s conduct as president—Trump’s initial response to her claims was back in October— Zervos will be able to proceed with her claims.
The key question is: When? Can Zervos proceed with her lawsuit while Trump is president, or does she have to wait until he’s out of office?
The answer to that question is, “Who knows?”
Trump’s lawyers have filed court documents asking the trial court in New York to decide whether it has the authority to hear a lawsuit filed against a sitting president.
You may be saying to yourself, “Duh. The answer is yes.” Because you’re a child of the ’90s, perhaps, and you remember Paula Jones’ lawsuit against Bill Clinton while he was in office. You may also recall that Bill Clinton tried to put off Paula Jones’ sexual harassment lawsuit against him, claiming that he was immune from all lawsuits while he was in office, whether or not the lawsuits were related to his duties as president.
The Supreme Court disagreed: In Jones, it wrote that President Clinton’s “effort to construct an immunity from suit for unofficial acts grounded purely in the identity of his office is unsupported by precedent.”
Ultimately, the Court permitted Jones to proceed with her lawsuit, noting that any court presiding over it would need to be sensitive to the president’s busy schedule.
But that was federal court. Again, Zervos sued in state court. At the time of its ruling in Jones, the Supreme Court explicitly said it was not deciding that matter: “It is not necessary to consider or decide whether a comparable claim might succeed in a state tribunal.”
You may be wondering, then, why Zervos didn’t file her lawsuit in federal court, so that Clinton v. Jones would be controlling law and binding precedent. In that case, she would have been able to proceed with the litigation right away.
Well, the short answer is because defamation is a state cause of action, and a federal court doesn’t have jurisdiction over it. The long answer would require delving with me into the morass that is civil procedure law, and trust me: You don’t want me to go on a diatribe about original jurisdiction, diversity jurisdiction, and removal to federal court.
You just don’t.
So there you have it: The New York court will hear both sides’ arguments about whether Trump has immunity and decide one way or the other. Whichever way it decides, the losing party will likely appeal the ruling to the Supreme Court. But no matter what happens, it will likely be a couple of years before we have a decision on whether Zervos can sue sitting President Trump in the first place, let alone whether he defamed her. By then, he might not even be a sitting president anymore.