Constitution Daily

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State judge denies legal immunity for President

March 21, 2018 by Lyle Denniston


Answering a constitutional question that the Supreme Court left open nearly 21 years ago in a case against President Bill Clinton, a state trial judge in New York ruled Tuesday that President Trump does not have immunity to being sued in state court on claims related to sexual misconduct that did not involve official acts.

The ruling keeps alive a lawsuit filed in January last year by a former TV reality show performer, who alleges that Trump has harmed her reputation by accusing her of lying about her claims of sexual assault.

Judge Jennifer G. Schechter, who sits in New York City on the New York County Supreme Court, declared that “no one is above the law” as she rejected two pleas by personal lawyers for the President: first, that the Constitution gives him, as President, immunity to being sued in state court, and, second, that the case should be postponed until he is no longer President.

The judge’s ruling came in the defamation lawsuit pursued by Summer Zervos, a California woman who had been a contestant in 2005 on Trump’s reality TV show, The Apprentice.  The lawsuit seeks a court order requiring Trump either to retract or apologize for all of the public statements she claims he made that defamed her, to pay damages to cover her personal loss, and to pay punitive damages designed to make an example of his conduct.  The amount of damages would remain unspecified until a trial is held.

Judge Schechter recited a litany of statements that the lawsuit asserted Trump had made, especially when campaigning for the presidency and in Twitter messages specifically calling women who had accused him of sexual misconduct liars.   The judge said that Ms Zervos had made a sufficient claim at this early point in the case that Trump’s statements, if a jury finds them to be false and that they were aimed at Ms Zervos personally, would prove her defamation complaint.

The part of the ruling refusing to dismiss the Zervos lawsuit was based by the judge on reasoning that the Supreme Court had used in 1997 in rejecting a plea by then-President Bill Clinton that he was immune as President to a civil damages lawsuit based on allegations about unofficial actions.  That lawsuit, by an Arkansas woman, Paula Jones, had been filed in federal court.  The Supreme Court said explicitly that it was not deciding whether an immunity claim would succeed if a president were to be sued in state court over unofficial acts.

Judge Schechter wrote: “It is settled that the President of the United States had no immunity and is subject to the laws for purely private actions.”  She cited the Clinton decision for that conclusion, and she noted that the Justices had ruled that a federal court lawsuit based on private conduct would not lead to judicial interference with official presidential actions or duties.

“The rule is no different for suits commenced in state court related to the President’s unofficial actions,” the judge concluded.  “Nothing in the Supremacy Clause of the Constitution even suggests that the President cannot be called to account before a state court for wrongful conducgt that bears no relationship to any federal executive responsibility.”

When unofficial conduct is at issue, the judge added, “there is no risk that a state will improperly encroach on powers given to the federal government by interfering with the manner in which the President performs federal functions.  There is no possibility that a state court will compel the President to take any official action or that it will compel the President to refrain from taking official action.”

The judge handling such a lawsuit in state court will be able to manage the case so that it does not keep the President away from his duties, including the need to be called away from a trial to perform necessary duties.

Turning to the President’s plea to postpone the case while he remains in office, Judge Schechter said that “a lengthy and categorical” postponement of the case is not justified “based on the possibility that, at a moment’s notice, the President may have to attend to a governmental or international crisis.  If and when he does, of course, important federal responsibilities will take precedence.”

While the judge left for the trial in the case the judgment about whether Trump had caused legal harm to Ms Zervos, the judge commented that the statements he is accused of making “cannot be characterized simply as opinion, heated rhetoric, or hyperbole.”

Ms Zervos’ legal complaint recites what Trump was recorded as saying on the now-famous “Access Hollywood” videotape about his treatment of women.  Her claims of sexual misconduct are based on her account of an encounter she had with him in 2007 in his office in New York, and shortly after that in his hotel room in Beverly Hills, Calif.

She took her story to the public after the “Access Hollywood” tape emerged during the 2016 presidential campaign.  After that, she contended, Trump repeatedly accused her of lying or of being an operative for the Hillary Clinton presidential campaign in pursuit of harming his candidacy.

The lawsuit claimed a loss of dignity and other personal harms, and a decline of business at her California restaurant in the wake of his alleged accusations against her.  The text of her lawsuit contended that she “never consented to any of this disgusting touching.”

The proceedings in her case presumably will now move in to what is called the “discovery” phase when each side demands information from the other, in hopes of bolstering their side of the case before a jury.  Her lawsuit seeks a jury to try the facts.

The case will proceed under New York state law and its trial procedures.  The President’s lawyers could attempt to appeal Judge Schechter’s refusal to dismiss the case and her refusal to postpone it.  However, such an appeal presumably could not reach the U.S. Supreme Court until after it had gone through New York state courts.

An effort to file a lawsuit in federal court to try to stop the case would have little chance of succeeding, because of Supreme Court precedents requiring federal courts to stand back when a case is already moving through state courts.

Under the U.S. Constitution, state courts have the same power as federal courts do to decide issues of constitutional meaning, as Judge Schechter did Tuesday on the immunity and separation-of-powers issues.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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