Defamation Case Against Trump Not Barred By Supremacy Clause, First Department Holds

In Zervos v. Trump, 2019 NY Slip Op 01851 (App. Div. 1st Dept. March 14, 2019), the court held, inter alia, that Summer Zervos’ defamation lawsuit against President Trump may proceed, and is not barred by the U.S. Constitution’s Supremacy Clause.[1]The court also denied defendant’s motion to dismiss plaintiff’s defamation claim for failure to state a cause of action, but here I will address only the court’s discussion of the “presidential immunity” issue.

The court focused, first, on “a constitutional issue of first impression: whether the Supremacy Clause of the United States Constitution requires a state court to defer litigation of a defamation action against a sitting President until his terms end.”

The court rejected Trump’s attempt “to shield himself from consequences for his alleged unofficial misconduct by relying upon the constitutional protection of the Presidency” as well as his “argument that the Supremacy Clause of the United States Constitution prevents a New York State court – and every other state court in the country – from exercising its authority under its state constitution.” Rather, it found “that the Supremacy Clause was never intended to deprive a state court of its authority to decide cases and controversies under the state’s constitution.”

In reaching its conclusion, the court analyzed the relevant case law, including Clinton v. Jones, 520 U.S.681 (1997) and Nixon v. Fitzgerald, 457 U.S. 731 (1982).

From the decision:

Defendant’s reading of the Supremacy Clause — that it bars a state court from exercising jurisdiction over him because he is the “ultimate repository of the Executive Branch’s powers and is required by the Constitution to be always in function'” — finds no support in the constitutional text or case law. Defendant’s interpretation conflicts with the fundamental principle that the United States has a “government of laws and not of men” (Cooper v Aaron, 358 US 1, 23 [1958] [internal quotation marks omitted]). Despite the suggestion in his brief that he is the “embodi[ment of] the Executive Branch,” and though he is tasked with significant responsibilities, the President is still a person, and he is not above the law. Supremacy Clause jurisprudence makes clear that an affirmative act is required to divest a state court of jurisdiction and defendant is not exempt from state court jurisdiction solely because of his identity as commander-in-chief (see Clinton v Jones, 520 US at 695 [“(I)mmunities are grounded in nature of the function performed, not the identity of the actor who performed it”] [internal quotation marks omitted]). Therefore, the Supremacy Clause does not provide blanket immunity to the President from having to defend against a civil damages action against him in state court. [Emphasis added.]

Defendant has not demonstrated entitlement to immunity from a state court civil damages lawsuit where his acts are purely unofficial.

In short, the Supreme Court’s decision in Clinton v Jones clearly and unequivocally demonstrates that the Presidency and the President are indeed separable. Hence, the Court in Clinton v Jones effectively recognized that the President is presumptively subject to civil liability for conduct that had taken place in his private capacity.

The court distinguished this case from Clinton v. Jones, noting, inter alia, that ” Plaintiff’s state law claims against defendant are based purely on his pre-presidential unofficial conduct.”

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1. The court also denied defendant’s motion to dismiss plaintiff’s defamation claim for failure to state a cause of action, but here I will address only the court’s discussion of the “presidential immunity” issue.