WASHINGTON — An appeals court in New York on Thursday became the first appeals court nationwide to rule that a sitting president — in this case, President Donald Trump — is not immune from civil lawsuits in state court.
The Appellate Division of the Supreme Court for the First Judicial Department rejected Trump's challenge to a defamation lawsuit brought by a former contestant on The Apprentice, Summer Zervos. Although the US Supreme Court ruled in 1997 that then-president Bill Clinton could be sued in federal court, the justices left open the question of what was allowed in state court.
"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," Judge Dianne Renwick wrote in the majority opinion.
The appeals court upheld a lower court judge's decision in March 2018 denying Trump's efforts to have the case dismissed. Trump's personal attorney in the case, Marc Kasowitz, said in a statement that they plan to appeal to the Court of Appeals, which is New York's highest state court. A ruling from that court can be appealed to the US Supreme Court.
"We respectfully disagree with the majority decision in the Appellate Division. We believe that the well-reasoned dissenting opinion by 2 of the 5 justices, citing the U.S. Supreme Court decision in the Clinton v. Jones case, is correct in concluding that the Supremacy Clause of the U.S. Constitution bars state courts from hearing cases against the President while he or she is in office," Kasowitz said.
Zervos's lawyer Mariann Wang said in a statement that they were "very pleased that the First Department has affirmed once again that Defendant 'is not above the law.'"
"The case has proceeded in the trial court and discovery continues. We look forward to proving to a jury that Ms. Zervos told the truth about Defendant’s unwanted sexual groping and holding him accountable for his malicious lies," Wang said.
At a press conference in October 2016, Zervos claimed that years before he was president, Trump on two separate occasions kissed her against her will and groped her, once in his office and another time at a hotel when they met for dinner. Trump denied there was any inappropriate sexual activity, and repeatedly charged that the women accusing him of bad acts were lying. Zervos filed a defamation lawsuit in New York Supreme Court in January 2017.
Renwick wrote that the supremacy clause of the US Constitution — which generally says that when state and federal law conflict, federal law prevails — did not override a state court's authority to decide cases under the state's own constitution. There is no federal law that conflicts with the defamation claims that Zervos brought against Trump, the judge wrote.
Like the Clinton case in the 1990s, Zervos's lawsuit involves "purely unofficial acts," Renwick wrote. There were practical policy reasons why presidents were immune from lawsuits challenging their official decisions, she said, but Congress had never passed a law extending that immunity to personal behavior. Once the case went forward, Renwick wrote that there were ways for the trial judge to limit how much the case might interfere with the president's duties — setting clear ground rules for the president's involvement in the exchange of evidence and allowing the president to testify by video, for instance.
Judge Angela Mazzarelli, who dissented on the constitutional issue and was joined by one other judge from the five-person panel, raised concerns about the court's ability to hold a sitting president in contempt. Renwick said contempt wasn't at issue now, and a court would deal with it later if it did. She did write, however, that it was "likely" that holding a president in contempt would be the type of "impermissible 'direct control'" that the Supreme Court warned against in the Clinton case.
The appeals court also rejected Trump's other challenges to Zervos's lawsuit. The court found that Trump's allegations that his accusers were liars was a statement of fact that could be proven true or false, as opposed to opinion that couldn't be the subject of a defamation case.
"Here, defendant's denial of plaintiff's allegations of sexual misconduct is susceptible of being proven true or false, since he either did or did not engage in the alleged behavior," Renwick wrote.
This post has been updated to include a comment from Marc Kasowitz.