Protect Democracy Files Brief in Trump Foundation case Rejecting Trump’s Claim To Be Above the Law

Late last week, Protect Democracy filed an amicus brief in a New York state court in New York v. Trump, countering Mr. Trump’s argument that because he is President he cannot be sued in state court. The brief was filed on behalf of three constitutional law professors who filed a similar brief earlier this year in Zervos v. Trump. These were also the same law professors who filed a brief twenty years ago in Clinton v. Jones. The brief argues that the office of the Presidency does not place a person above the law, and therefore the same legal framework that the Supreme Court applied to President Clinton in 1998 should also apply to President Trump today.

The NYS Attorney General’s Office is suing President Trump and the Trump Foundation for violating New York charities law. Mr. Trump sought to dismiss the case, claiming that because he is President he cannot be sued in a state court — even if he’s being sued for conduct that took place before he was President and that has no connection to his official duties. In Zervos v. Trump, the trial court rejected the President’s claim to above the law and agreed that he can be sued in state court. We expect the same outcome here.

The professors signing onto the brief are Stephen B. Burbank, Richard D. Parker, and Lucas A. Powe Jr. Professor Richard Primus was co-counsel on the brief with Aditi Juneja and Ian Bassin of Protect Democracy.

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.

As Protect Democracy argued to the court on behalf of the same constitutional experts who made this point twenty years ago in Clinton v. Jones, ‘No one in our nation is above the law, not even the President.’ The court agreed with us in Zervos v. Trump and we fully expect that they will do so again.

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.

“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)).

[President Trump] 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.