Protect Democracy Files Amicus Brief in Zervos Rejecting Trump’s Claim To Be Above the Law

On August 8, 2018, Protect Democracy filed an amicus brief in a New York appellate court in Zervos 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 twenty years ago in Clinton v. Jones.  The brief argues that the same legal framework that the Supreme Court applied to President Clinton in 1998 should also apply to President Trump today: the office of the Presidency does not place a person above the law.  

Ms. Zervos, a former Apprentice contestant, sued Mr. Trump for defamation based on remarks he made disparaging her.  Mr. Trump sought to dismiss the case, claiming that because he is President he cannot be sued in a state court — even for conduct that took place before he was President and that has no connection to his official duties.  Protect Democracy filed the lone amicus brief in the trial court, on behalf of the constitutional scholars who had submitted a brief in Clinton v. Jones.  The trial court agreed with Protect Democracy’s argument, holding that Mr. Trump could not make the case go away just because of the office he holds.  

Mr. Trump has appealed that ruling.  Protect Democracy’s amicus brief in the First Division appellate court rejects Mr. Trump’s latest arguments.  The professors signing onto the brief are Stephen B. Burbank, Richard D. Parker, and Lucas A. Powe Jr. Professor Richard Primus and Ropes & Gray LLP were co-counsel on the brief with Protect Democracy.

Justin Florence, Legal Director at Protect Democracy released this statement:

“Since he took office, President Trump and his lawyers have repeatedly trotted out the argument 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 trial court was correct to agree with that basic principle, and its decision should stand up on appeal.”

Key Excerpts from Protect Democracy’s Amicus Brief

Read the full brief here.

No one in our nation is above the law, not even the President.  The Supreme Court in Jones clearly held that the Constitution does not immunize the President from civil suits based on conduct wholly unrelated to the execution of his office.  520 U.S at 694. Despite appellant’s arguments to the contrary, neither the Supremacy Clause nor any other constitutional principle prevents state courts from adjudicating claims brought against sitting Presidents when those claims implicate only the defendant’s unofficial acts and capacities.  

“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, 218 (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)).

As the trial court held, 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.  This Court should uphold the trial court’s decision and allow the trial court to adjudicate the claims against appellant.