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

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