Appellate Division allows defamation claim against Trump to proceed

A state appellate court in Manhattan has ruled that a woman may sue Donald Trump for defamation even while he occupies the White House, rejecting an expansive interpretation of the constitutional Supremacy Clause and holding that this provision "does not provide a basis for immunizing the President from state court civil damages actions."

The case is Zervos v. Trump, decided on March 14. Zarvos was a contestant on the Apprentice, a game show starring the future President. After the Access Hollywood tape surfaced in October 2016 in which Trump was caught on video stating he was able to use his celebrity to sexually assault women, Zervos publicly accused Trump of sexually assaulting her in 2007. Trump then called Zarvos and other accusers liars. Zervos sues Trump for defamation.

The primary issue is whether the Supremacy Clause prevents you from suing the President in state court for acts that predate the presidency. The Appellate Division holds in a 3-2 vote that the Clause does not prohibit such a lawsuit. The Supremacy Clause states that federal law has primacy over state law, so that any state law that conflicts with federal law is a nullity. Trump's lawyers argued that the Supremacy Clause also means that a state court has no authority over the President because he is the "ultimate repository of the Executive Branch's powers and is required by the Constitution to be 'always in function.'" The Appellate Division says this interpretation "finds no support in the constitutional text or case law," and that "Despite the assertion in his brief that he is the 'embodiment of the Executive Branch,' and although he is tasked with significant responsibilities, the President is still a person, and he is not above the law."

The case is full of irony. The key precedent in this area is Clinton v. Jones, a Supreme Court ruling from 1997 that held Paula Jones could sue President Clinton for sexual harassment that predated Clinton's presidency, so that Jones' lawyers could require Clinton to give sworn testimony as a sitting President. The Appellate Division says Clinton v. Jones compels the holding that Trump may also be subjected to pretrial discovery. It was the deposition testimony in Jones' case that led to Clinton's perjury and impeachment. For the first time in 20 years, impeachment is back in the American conversation. What if Trump denies assaulting Zervos, but Zervos produces solid eyewitness testimony or other evidence to the contrary?

As an aside, during the oral argument in Clinton v. Jones, the Solicitor General (who defends the federal government before the Supreme Court) tried to argue that even Paula Jones' lawsuit would intrude on presidential scheduling. Justice Scalia shot back the following:

But we see Presidents riding horseback, chopping firewood, fishing [laughter in the courtroom], playing golf and so forth and so on. Why can't we leave it to the point where, if, and when a court tells a President to be there or he's going to lose his case, and if and when a President has the intestinal fortitude to say, ''I am absolutely too busy'' -- so that he'll never be seen playing golf for the rest of his Administration [laughter] -- if and when that happens, we can resolve the problem. But really, the notion that he doesn't have a minute to spare is just not credible.

The Appellate Division ruling also has a few passive-aggressive case and other citations. The Court summarizes the holding in Nixon v. Fitzgerald, a Supreme Court ruling from 1982 that said a federal employee cannot sue an ex-President for actions the defendant took while in the Oval Office. We all know about President Nixon's retaliatory impulses, but the Appellate Division does not have to remind us that Nixon resigned the presidency to avoid impeachment. Another passive-aggressive act in the ruling is citation to a prior defamation case against Trump for the proposition that the false but rock-solid denial of an embarrassing allegation (along with calling someone a liar) is potentially libelous as opposed to nonactionable hyperbole, which the listener may not take seriously. As that legal principle is well-settled under New York law, the Appellate Division did not really have to cite that case. But, what the hell, right?

The Appellate Division also cites a law review article written by Brett Kavanaugh in 2009 that suggests Congress can enact a law prohibiting lawsuits against sitting Presidents for pre-presidential actions. (Congress has never passed such a law). The Appellate Division did not have to cite the Kavanaugh article, as the Court also cites Clinton v. Jones for the same proposition. My guess is the Appellate Division highlights the Kavanaugh piece because this case may wind up in the Supreme Court, a place that Kavanaugh now calls home. And, again, what the hell.

Two judges dissent from this ruling, stating in part that the Supremacy Clause cannot allow this case to proceed because a state court does not have authority to regulate presidential behavior by compelling him to respond to discovery demands, to sit for a deposition, and to appear before it. The dissenters also offer what it deems the unacceptable hypothetical that, under the majority's holding, the state court would have power to hold the President in contempt. I just throw that out there.