President Trump’s lawyers have argued that the Constitution makes the president completely immune from being sued in state court even when the lawsuit concerns pre-office conduct. The president first made this argument in Zervos v. Trump, which concerned allegations that President Trump defamed a woman who accused him of groping her. He reprised the arguments in People of the State of New York v. Trump, which concerned allegations that the Trump Foundation violated New York charities law.

These arguments are wrong as a matter of constitutional law. In Clinton v. Jones, the Supreme Court made clear that presidential immunity only extends to the president’s official acts, not his unofficial conduct. Of course, President Trump could not take an official presidential act before assuming office.

Protect Democracy has filed amicus briefs in both of the aforementioned cases reiterating the argument made in Clinton v. Jones and arguing that the president should not be immune from suit in state court. This is the first time this argument has been litigated.

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