NEW YORK – When the U.S. Supreme Court decided this month that the presidency isn’t a shield against a New York prosecutor’s criminal investigation, the justices didn’t say whether the same goes for civil suits against the president in state courts.
That has quickly become a question in two closely watched defamation lawsuits filed by women who say President Donald Trump smeared them while denying their sexual assault allegations.
Lawyers for the women, E. Jean Carroll and Summer Zervos, are now trying to persuade New York courts that the U.S. Supreme Court’s ruling strengthens their arguments for letting the suits go forward. Trump’s attorneys are contending just the opposite.
The dispute comes with one of the cases now before New York’s highest court, which is weighing whether a sitting president is constitutionally protected from being sued in state courts.
“The answer is no” under the U.S. Supreme Court’s reasoning, Zervos attorneys Beth Wilkinson and Moira Penza wrote in a letter Friday to the top-level state Court of Appeals.
Although the Supreme Court case was about a criminal probe, Zervos’ and Carroll’s lawyers maintain that the justices rejected essentially the same presidential immunity claims that Trump’s attorneys have raised in the lawsuits.
“The Supreme Court has now spoken,” Carroll lawyer Roberta Kaplan wrote to the judge in her defamation case last week. She said it follows from the ruling “that Trump’s assertions of immunity in this case ... are completely baseless.”
Trump’s lawyer Marc Kasowitz said that doesn’t follow at all.
“The Supreme Court’s holding ... was limited to the criminal context, and its reasoning does not extend to civil actions,” Kasowitz wrote to the judge Tuesday. He pointed to various pieces of the court’s logic to argue it backs Trump’s argument that the defamation suits must be postponed until after his presidency.
Carroll, a former advice columnist, has accused Trump of raping her in the mid-1990s. Zervos, a restaurateur and former contestant on the Trump-hosted reality show “The Apprentice,” alleges he subjected her to unwanted kissing and groping in 2007. The Associated Press generally does not identify people who allege they have been sexually assaulted unless they come forward publicly, which Zervos did during the 2016 presidential campaign, and Carroll did last year.
Trump denied their claims. Among other comments, he said Carroll was “totally lying” to sell a memoir and retweeted a message calling Zervos’ claims “a hoax,” with a comment added: “Terrible.” The women are suing for damages and retractions, saying Trump's remarks harmed their reputations and careers.
Past Supreme Court cases established that presidents are subject to federal criminal subpoenas and to federal civil suits regarding private behavior. The court has said they can’t be sued over official actions, so their decision-making won’t be clouded by concerns about getting tied up in lawsuits.
In both the Supreme Court case and the New York lawsuits, Trump’s legal teams have argued it’s unconstitutional for presidents to be dragged into state court proceedings — whether by a request for tax records for a state grand jury investigation or by a defamation suit.
The Supreme Court said July 9 that the president isn’t immune from criminal probes by state prosecutors, though the justices left room for Trump's lawyers to challenge Manhattan District Attorney Cyrus R. Vance Jr.’s subpoena more specifically. Trump, a Republican, has called the Democratic DA’s inquiry into his financial dealings “a pure witch hunt” and “a hoax.”
Legal scholars debate what the high court’s decision might mean for civil cases in state courts.
The court generally views criminal cases as more compelling matters than civil suits, said Albany Law School professor Vincent Bonventre, who maintains a blog on the Supreme Court.
“The court is going to be a little bit more protective of the president if it’s a civil matter,” he said, while noting that the Supreme Court hasn’t been entirely protective. It allowed Paula Jones’ federal sexual harassment suit against then-President Bill Clinton to go forward in 1997.
Some other legal experts say the high court’s reasoning holds promise for plaintiffs.
If “presidents are not immune from state criminal subpoenas, it’s very hard to see why presidents would be immune from civil lawsuits in state court,” said University of Chicago Law School professor Daniel Hemel said.
Bridget Crawford, a Pace University tax law professor who followed the Supreme Court case closely, thinks people interested in suing a president in state court “have reason to take heart.”
“I don’t think it’s a ‘green light -- go!’ for all plaintiff’s claims,” she said, “but nor do I think there is a red light on, either.”