Amicus Brief of Law Professors as Amici Curiae in Zervos V. Trump

24 Pages Posted: 27 Dec 2017  

Douglas Hallward-Driemeier

Ropes & Gray LLP - DC

Robert Fischler

Ropes & Gray LLP - New York

Patrick Reinikainen

Ropes & Gray LLP - New York

Justin Florence

The Protect Democracy Project

Larry Schwartztol

The Protect Democracy Project

Richard Primus

University of Michigan Law School

Date Written: September 19, 2017

Abstract

Zervos v. Trump is a pending defamation suit, against the sitting President, in state court in New York, arising from conduct occurring before the Defendant became President. The Defendant seeks dismissal on the grounds that a sitting President cannot be sued in a state court. Amici, three law professors who twenty years ago submitted an amicus brief in Clinton v. Jones in support of a plaintiffs' right to sue the sitting President in federal court, have submitted this brief explaining why the rule of Clinton v. Jones should not be limited to federal court. Given that Jones is the law, a President should be amenable to suit in state as well as federal court, with appropriate docket-management accommodations made in light of the demands on a President's time and attention. If as a policy matter it is unwise to permit state courts to exercise jurisdiction over such suits, the appropriate remedy is for Congress to legislate either a tolling statute or a Presidential-removal provision. Absent such legislative intervention, the best reading of the Constitution, the requirements of federalism and the rule of law, and the Supreme Court's decision in Clinton v. Jones direct that state courts be permitted to entertain suits against sitting Presidents for conduct arising from their pre-Presidential conduct, just as federal courts can.

Keywords: Federalism, Separation of Powers, Immunity

Suggested Citation

Hallward-Driemeier, Douglas and Fischler, Robert and Reinikainen, Patrick and Florence, Justin and Schwartztol, Larry and Primus, Richard, Amicus Brief of Law Professors as Amici Curiae in Zervos V. Trump (September 19, 2017). Available at SSRN: https://ssrn.com/abstract=3091431 or http://dx.doi.org/10.2139/ssrn.3091431

Douglas Hallward-Driemeier

Ropes & Gray LLP - DC

2099 Pennsylvania Avenue, NW
Washington, DC 20006-6807
United States

Robert Fischler

Ropes & Gray LLP - New York

1211 Avenue of the Americas
New York, NY 10036
United States

Patrick Reinikainen

Ropes & Gray LLP - New York

1211 Avenue of the Americas
New York, NY 10036
United States

Justin Florence

The Protect Democracy Project

2020 Pennsylvania Ave. NW, #163
Washington, DC 20006
United States

Larry Schwartztol

The Protect Democracy Project

2020 Pennsylvania Ave. NW, #163
Washington, DC 20006
United States

Richard Primus (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734-647-5543 (Phone)
734-764-8309 (Fax)

Register to save articles to
your library

Register

Paper statistics

Downloads
183
rank
153,320
Abstract Views
492
PlumX