Devil With the Sages As New York Judge Okays Suit vs. Trump
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Nearly every legal sage I know thinks New York justice Jennifer Schecter was right in ruling this week that President Trump can be forced to appear in a New York state court to answer for defamation. The suit is being brought by Summer Zervos, an ex-contestant on “The Apprentice,” who says Mr. Trump defamed her after she accused him of sexual harassment.
Justice Schecter cited the United States Supreme Court’s ruling in favor of Paula Jones, the Arkansas woman who sued President Bill Clinton for sexual harassment and defamation.
In federal court, Mr. Clinton argued that as president he was immune. The Supreme Court, in 1997, ruled against him nine to zero. Nearly all legal giants agree with the decision.
The devil with them, I say. I’m with Thomas Jefferson, who warned long ago that allowing a sitting president to be haled to court would violate the principle of separated powers.
“Would the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience,” Jefferson wrote to a Virginia lawyer, George Hay.
Jefferson suggested that if the courts could “bandy” the president “from pillar to post,” they could “withdraw him entirely from his constitutional duties.”
Though Justice Schecter didn’t cite Jefferson, she clearly disagrees. “It is settled that the President of the United States has no immunity and is ‘subject to the laws’ for purely private acts,” the justice wrote, pronouncing: “No one is above the law.”
No one is arguing the president is above the law. They’re arguing that the law that applies is the Constitution, which protects anyone from being dragged into court while he or she is president.
The Constitution acknowledges this point en passant. It provides for a process of impeachment. It enables the House of Representatives to charge a president with either high crimes or misdemeanors.
It enables the Senate to try him and remove him. Once a president is removed, the Constitution says specifically that he is then subject to trial in the courts for any alleged misdeeds.
In the Clinton impeachment trial, one of President Clinton’s lawyers, Nicole Seligman, made precisely this point.
“Once he leaves office,” Ms. Seligman argued, “the President is amenable to the law as any citizen, including for private conduct during his term of office.” His status as a former president would not prevent a trial.
Moreover, Ms. Seligman argued a president is different from, say, a judge. Judges are appointed and confirmed by the Senate, Ms. Seligman noted. Judges get to serve “during good behavior,” meaning for life.
Good behavior, though, isn’t required of a president, Ms. Seligman pointed out in the most astonishing moment in a brilliant summation that, I believe, won Mr. Clinton’s acquittal.
“Presidents,” she said, “are elected by the people in one of the great periodic exercises of national will, and their tenure is blessed as the choice of the people.”
Ms. Seligman’s winning summation in the Clinton impeachment couldn’t be more timely reading as Democrats and some Republicans ramp up their legal campaign to bring President Trump down.
Which brings me back to Justice Schecter. She believes she can manage the trial of Summer Zervos’ defamation complaint in a way that won’t interfere with Mr. Trump’s presidential duties. She reckons that in the Paula Jones lawsuit, the Supreme Court “flatly rejected” that even “burdensome interactions” between the court and the president “rise” to “forbidden impairment.”
It’s no different in a state court from a federal court, she harrumphs. She insists that as “unofficial conduct is at issue, there is no risk that a state will improperly encroach on powers given to the federal government.”
In the Paula Jones case, the Supreme Court itself stopped short of deciding “whether a court may compel the attendance of the President at any specific time or place.”
We’ll see. Justice Schecter’s allowance of a state civil suit against a sitting president is reportedly the first time this has happened in America. Maybe the Founding Fathers understood the presidency better than modern legal sages.
This column first appeared in the New York Post.