Decision in Trump Foundation case

  • November 23, 2018

On November 23, 2018, Justice Scarpulla of the New York Supreme Court ruled, citing an amicus brief filed by Protect Democracy and Richard Primus, that the President is not immune from civil suit in state court for acts undertaken in his personal capacity. This case, New York v. Trump concerns allegations that the Trump Foundation violated New York charities law. This is the second New York state court to reject President Trump’s claim of immunity. Read the decision here.


“Since he took office, President Trump and his lawyers have repeatedly claimed that he is above the law. Whether claiming he has the absolute right to do what he wants with the Justice Department; that he can ignore laws prohibiting conspiracy with foreign powers to influence an election; or that he can avoid accountability for his conduct because of the office he holds, the President all too often claims to be beyond the reach of the law.  

Today’s decision rejects that view and reaffirms a core tenant of our democracy—that we are a nation of laws and that no one is above the law, not even the President. The President cannot use the office he holds to avoid accountability for his personal, pre-office conduct.

The court agreed with us in Zervos v. Trump that the President is not above the law and we are gratified that it did so again here.”


Protect Democracy filed a brief in N.Y. v. Trump (read our brief here) reiterating the argument made in Clinton v. Jones that the president is not immune from suit in state court. Protect Democracy represents the same constitutional experts who filed the brief Clinton v. Jones — Stephen B. Burbank, Richard D. Parker, and Lucas A. Powe Jr.

We also filed amicus briefs in both state and appellate courts in Zervos v. Trump (read our brief here) making the same arguments. Our clients wrote an op-ed explaining why the President is not above the law last month. George Conway (Kellyanne Conway’s husband) retweeted it!

Key Excerpts from Protect Democracy’s Brief

You can read the full brief here:

No one in our nation is above the law.  In Jones, the Supreme Court unanimously held that sitting Presidents are not immune from civil lawsuits in federal court for their unofficial acts.  There is no reason grounded in Supreme Court precedent, the Constitution, public policy, or logic to reach a different conclusion with respect to suits brought in state courts against sitting Presidents based on their unofficial conduct.  

In the four Presidential terms following Jones, suits against sitting Presidents in state court were either nonexistent or close to it.  Respondent has identified no instance in which either President George W. Bush or President Barack Obama was required to spend time dealing with a lawsuit in a private capacity during their combined sixteen years of service.  There is accordingly no factual basis for thinking that Presidents will often be civilly sued unless immunized, and courts should not make bad constitutional law for generations simply because of the exceptional circumstances created by one President’s pre-office conduct.  


“No man in this country is so high that he is above the law.  No officer of the law may set that law at defiance with impunity.  All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”  United States v. Lee, 106 U.S. 196, 220 (1882).  To be sure, the President is entitled to immunity for his official acts.  See Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982).  But with respect to wrongful conduct outside of his official duties, the President is subject to suit like any other person.  

To immunize the President in all cases, including cases having nothing to do with the President’s official duties, would be to attach Presidential immunity not to the federal office but to a person.  That would violate the principle that ours is “a government of laws and not of men.” Cooper v. Aaron, 358 U.S. 1, 23 (1958) (quoting Massachusetts Declaration of Rights, pt. 1, art. 30 (1780)).