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Trump's lawyer: Summer Zervos can't sue in state court. Legal expert: Wrong.

Not so fast, Mr. President.
Image: Gloria Alred, Summer Zervos
Gloria Allred, right, and Summer Zervos, leave Manhattan Supreme Court in New York on Dec. 5, 2017.Kathy Willens / AP

Earlier this week, a state court in Manhattan was the unusual setting for the latest novel legal question to arise from the Trump presidency: Can a sitting president be sued in state (rather than federal) court?

The question has arisen as part of a defamation suit brought by Summer Zervos — a former “Apprentice” contestant — who claims that Trump sexually assaulted her in 2007, and then made a series of materially false statements about her while denying the claims during the 2016 campaign.

The Supreme Court has never addressed the question of whether (and when) a sitting president can be sued in state court. But a careful unpacking of other relevant decisions — along with an important but obscure federal statute — suggest that, at least in Zervos’s case, Trump won’t be able to quash this lawsuit without a fight.

Let’s start with what the Supreme Court has settled. The first of the two key decisions is Nixon v. Fitzgerald, a 1982 ruling in which the justices held that a president has “absolute immunity” (meaning he cannot be subject to civil suit for damages) for actions taken within the “outer perimeter” of his official duties while he’s the president. (This remains true regardless of when the suit is brought).

Thus, the court threw out a First Amendment claim by a former government employee who argued that the president had him fired in retaliation for whistleblowing testimony at a congressional hearing. Because supervising the federal bureaucracy is part of the president’s official duties, the court concluded he could not be sued personally for damages even for the wrongful discharge of an employee.

The Supreme Court has never addressed the question of whether (and when) a sitting president can be sued in state court.

Fifteen years later, the court unanimously refused to extend the Fitzgerald rule to claims against a sitting president based upon conduct that pre-dated his White House tenure. Thus, in Clinton v. Jones, the Supreme Court held that the separation of powers did not prohibit the federal courts from hearing a sexual harassment suit by Paula Jones against President Bill Clinton. The court held that “[t]he litigation of questions that relate entirely to the unofficial conduct of the individual who happens to be the President poses no perceptible risk of misallocation of either judicial power or executive power.”

Between them, then, Nixon v. Fitzgerald and Clinton v. Jones establish a clear rule that even a sitting president can be sued for damages in federal court so long as the claim relates to actions that did not happen while the defendant was president. So far, so good for the Zervos suit.

But the Supreme Court in Clinton v. Jones went out of its way to reserve — rather than decide — whether the same rule would apply to suits against the president in state court. As Justice John Paul Stevens explained, “[b]ecause the Supremacy Clause makes federal law ‘the supreme Law of the Land,’ any direct control by a state court over the President, who has principal responsibility to ensure that those laws are ‘faithfully executed,’ may implicate concerns that are quite different from the interbranch separation-of-powers questions addressed here.”

In other words, allowing a state court to entertain a suit against a sitting president could raise different constitutional concerns than the ones the court brushed aside in 1997. Not surprisingly, this is the argument that Trump’s lawyers are now making, emphasizing the burden that litigation could place on the president’s ability to discharge his official duties.

But will it? There are three reasons why, now that the question has been properly presented, courts should conclude that the Clinton v. Jones rule should also apply in state court.

No questions, please.
No questions, please.Pete Marovich / Pool via Getty Images file

First, if the concern is that litigation will unduly burden Trump’s official responsibilities, that argument has already been considered and rejected by the Supreme Court in Clinton v. Jones. That case distinguished civil suits from cases in which courts were asked directly to interfere with ongoing government policy: “The burden on the President’s time and energy that is a mere byproduct of such review [in the context of damages suits based upon unofficial conduct] surely cannot be considered as onerous as the direct burden imposed by judicial review and the occasional invalidation of his official actions.”

There is no reason why the burden of litigation in state court raises constitutional concerns distinct from the burden of litigation in federal court.

Second, if the concern is that state courts will somehow deprive Trump of rights that he would otherwise have had in the same litigation in federal court, that concern is resolved by the plain text of the Constitution’s Supremacy Clause. (This clause expressly binds state court judges to follow federal law over state law.) If the state courts somehow get the relevant federal law questions wrong, the president, like any other defendant in such a case, would have the right to appeal all the way to the U.S. Supreme Court.

Third, as Clinton v. Jones itself recognized, if there were real concerns that a state court was neglecting Trump’s specific claims based upon his status as president, he could easily transfer the case to federal court. (A Civil War-era federal statute expressly allows him to do this). That Trump has not sought to transfer the Zervos case to federal court suggests that he has no specific federal claim there. This makes it seem even more clear that the state court should be allowed to do its job.

It may well be that Trump could defeat Summer Zervos’s defamation suit based on the merits of his case — that’s a matter for another time. But there’s no good reason (albeit plenty of bad ones) why he cannot be sued in state court. Based on legal precedent, Trump should find his presidential privileges do not constitute a “get out of court free” card — at least where the suit is based on transgressions that predated his presidency.

Steve Vladeck (@steve_vladeck) is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law, and national security law. Steve is co-editor-in-chief of the Just Security blog (@just_security) and co-host of the National Security Law Podcast (@nslpodcast).