Must private litigation against the president be suspended?

Zervos v. Trump raises a constitutional issue of first impression: Whether the U.S. Constitution requires a state court to defer or suspend private civil litigation against President Donald Trump until his term as president ends. The allegations against Trump are for defamatory acts taken before he became president. Trump's claim of temporary civil immunity is now pending before the New York Court of Appeals, which is the highest court in the state.

Summer Zervos, a former contestant on the TV show the Apprentice, claims that Trump sexually assaulted her. When the charges resurfaced during the 2016 presidential campaign, Trump responded publicly on Twitter, at campaign rallies, and at a presidential debate that her claims were "all made up," "false," and based on "lies" designed to steal the election. He threatened to sue her, as well as other women who made similar claims, after the 2016 election. But she beat him to the courthouse when she sued him for defamation under New York law in 2017.

Trump responded by moving to dismiss the complaint on the theory that the state court has no jurisdiction against a sitting president based on the supremacy clause and the Supreme Court's decision in Clinton v. Jones, 520 U.S. 681 (1997). The trial court denied the motion, and Trump appealed.

Trump broadly argues that the supremacy clause is violated when a state court exercises "direct control" over a sitting president by asserting jurisdiction. But nothing in the supremacy clause provides that a sitting president cannot be called to account before a state court for wrongful conduct having no relationship to his presidential responsibilities. The supremacy clause operates as a preemption mechanism to adjust conflicts of law between federal and state law, and not as a source of presidential immunity. In addition, the traditional power of state courts to try cases against federal officials is recognized by the 10th Amendment.

In Clinton v. Jones, Paula Jones sued President William Clinton for damages in federal district court for making "abhorrent sexual advances" and publicly branding her a liar before he became president. Clinton moved to dismiss the complaint on the theory of presidential immunity. The Supreme Court held that Clinton was not immune for unofficial acts taken before he assumed the presidency. It found that Clinton's "effort to construct immunity from a suit for unofficial acts grounded purely in the identity of his office is unsupported by precedent." The court rejected the argument that the burden on the president to respond to the civil case was too great: "if properly managed ... [the civil suit] appears to us highly unlikely to occupy any substantial amount of [the president's] time." In short, the court reasoned that the unofficial acts of the president and the presidency are separable.

The court did leave open, however, whether a comparable immunity claim might succeed in a state court. "If this case were being held in a state forum, instead of advancing a separation-of-powers argument, petitioner would presumably rely on federalism and comity concerns." The court cautioned that any direct control by a state court over the president "may implicate concerns" that are quite different from the interbranch separation of powers issue presented in the current case.

State courts are clearly competent to adjudicate private claims against a sitting president. They are as competent as the federal courts in assuring that the exercise of control does not interfere with or impede the president in discharging his constitutional duties. Trump's testimony, both for discovery and use at trial, may be taken at the White House at a time that accommodates his schedule, and should a trial be necessary, Trump has the option of attending or simply being represented by counsel.

Since the beginning of his presidency, Trump has found the time to actively participate in numerous lawsuits across the country, including in state court, without interfering with the discharge of his duties. Trump cannot now avoid liability for his unofficial conduct because the suit was filed in state court. Although Trump may wish otherwise, it is a fundamental precept of our constitutional system that he is not above the law as president. 