Defamation Suit Against Trump Can Wait

(Bloomberg View) -- With the settlement approved last week in the Trump University case, Donald Trump's lawyers were free to shift their attention to another civil case with the potential to be a nuisance to his presidency. They are poised to argue that he can't be sued in state court while he's president.

The U.S. Supreme Court allowed Paula Jones to sue Bill Clinton while he was president -- but that was a federal suit, not a state suit. The difference between state and federal gives the courts an opening to make Trump temporarily immune from private suits while he's in office. And if they're wise, the courts will do exactly that. The practical consequences of the Jones case were disastrous for the republic. And no matter how much you might think Trump is a lawbreaker, his civil comeuppance should come from Congress, not the courts.

In the case in point, Summer Zervos, a former contestant on “The Apprentice,” is suing Trump for defamation. Zervos has alleged that Trump, the show's host, attacked her in her hotel room and twice kissed her without permission.

But the suit isn't for those actions. It's based on Trump's denial.

In an official statement and in tweets, Trump said he had never met Zervos at a hotel and that she had “made up events THAT NEVER HAPPENED.” (Capital letters in the original. Obviously.)

Zervos is suing Trump under New York law for defaming her by calling her a liar.

That brings us to Trump's defense. In a filing before the New York trial court, his lawyers say they will be asking the court to stay the suit “until the end of his Presidency.” The reason they give is the “crucial constitutional grounds that this Court lacks authority to adjudicate Zervos's claim under, among other things, the Supremacy Clause of the United States.”

To unpack this argument requires a look back to the era-defining 1997 case of Clinton v. Jones. The justices then unanimously rejected Clinton's argument that Jones's federal sex-harassment suit should be frozen until after his presidency.

Because the suit was federal, Clinton argued that the separation of powers would be violated if the judiciary had authority over him while he was serving as president. The court said that didn't matter because the case only involved unofficial conduct. Thus, Justice John Paul Stevens wrote in a fateful sentence, “Whatever the outcome of this case, there is no possibility that the decision will curtail the scope of the official powers of the Executive Branch.”

That may have been true in theory, but it wasn't true in reality. To simplify only slightly, the case led to discovery, which led to taking the president's testimony under oath, which led to his denial of his sexual relationship with Monica Lewinsky, which led to the Kenneth Starr report, which led to Clinton's impeachment. Over the course of this process, Clinton's ability to do the job of president was, in practice, drastically curtailed.

On the surface, this decision would seem to mean that Zervos's suit must go forward. After all, if the president can be sued in federal court, why not in state court?

But the Supreme Court explicitly stated that it wasn't deciding the different question of whether the president could be sued in a state court. Should that happen, the court suggested, the presidents' lawyers could argue their case for a delay on the basis of “federalism and comity concerns,  as well as the interest in protecting federal officials from possible local prejudice.”

Stevens then dropped a footnote (No. 13, if you're keeping track at home) providing a specific constitutional basis: the supremacy clause, which makes federal law “the supreme Law of the Land.”

As Stevens put it, because the president has the constitutional responsibility to ensure the enforcement of federal law, a state court proceeding against him “may implicate concerns that are quite different from the interbranch separation of powers questions.”

The idea behind all this is that pesky litigants in state courts might seek to tie up the president and block him from performing his duties by bringing an array of state claims. Of course, that could happen in federal court, too. But the Supreme Court was hinting that, in the federal courts, it could use its supervisory powers to shut down frivolous lawsuits.

By contrast, the Supreme Court has no power over state courts except to the extent that the issues before them implicate federal law. And suits like Zervos v. Trump ordinarily involve no federal issue at all. As a consequence, if the president were hit with dozens or hundreds of state suits against him in his personal capacity, there would be nothing the Supreme Court could really do about it -- except through a blanket rule that such suits are constitutionally required to be frozen while he's president.

The New York court therefore has the authority to freeze the suit against Trump, applying either state law or the Constitution, which binds state courts as much as it binds federal ones.

It should do so, citing footnote 13 of Clinton v. Jones.

The real reason is the same one I gave back in November: Private lawsuits can devastatingly distract a president from performance of his duties.

It may seem perverse for a Trump critic like me to say he should be immune from private suit while he's president.

But this is about much more than Trump, the same way Clinton v. Jones was about much more than Bill Clinton. We now have concrete evidence that a suit against a sitting president can lead to impeachment -- not for high crimes and misdemeanors, but for conduct irrelevant to the exercise of the office.

Trump should be allowed to do his job, the same as Clinton. And if he abuses the presidential trust, committing high crimes and misdemeanors while in office, he should be impeached. But whether Trump defamed Zervos before the election isn't germane to whether he should be impeached now.

The test of a constitutional principle is whether you're willing to extend it to your political opponents. This time, Democrats should remember the mistake of Clinton v. Jones -- and its consequences for nation.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America's Church-State Problem -- and What We Should Do About It.”

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net.

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