By James J. Barney
Associate Professor of Legal Studies, School of Security and Global Studies, American Military University

Note: The opinions and comments stated in the following article, and views expressed by any contributor to In Homeland Security, do not represent the views of American Military University, American Public University System, its management or employees. This blog article, written by a licensed lawyer, is intended solely for educational purposes, not to provide any legal advice or to solicit clients in any U.S. or foreign jurisdiction. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state or locality.

Recently, E. Jean Carroll, a well-known advice columnist for Elle magazine, alleged that President Trump engaged in inappropriate behavior of a sexual nature with her in an upscale Manhattan department store in the 1990s. Trump vigorously denied Carroll’s allegations, arguing that politics or personal interest motivated her recent allegations.

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While Carroll’s claims likely will not expose President Trump to any direct criminal liability in New York, their explosive nature has raised the stakes posed by a defamation suit currently pending against Trump in New York state. The suit was brought by a former Apprentice contestant on Trump’s TV show, “The Apprentice.”

With former Special Counsel Robert Mueller’s July 24 long-awaited testimony before Congress over, the litigation in New York against President Trump will undoubtly garner more attention.

New York Courts Rule Defamation Suit Can Proceed Against Trump

During the 2016 presidential campaign, Summer Zervos, a former contestant on “The Apprentice,” alleged that Trump engaged in behavior that constituted sexual harassment against her in the early 2000s. In a complaint filed in New York, Zervos alleged that she suffered harm to her reputation when Trump repeatedly called her a liar during his 2016 presidential campaign.

In his court pleadings seeking the dismissal of her defamation suit, President Trump argued that 1) his statements during the 2016 presidential campaign were protected by the First Amendment; 2) as a sitting President, he is too busy to be subject to a state civil suit for pre-presidency actions; and 3) a sitting President is immune from civil suits in state courts under the Supremacy Clause of the United States Constitution.

The case raises several novel legal issues, including whether an individual can force a sitting President to defend state-based claims in a state court for behavior that allegedly occurred prior to assuming the presidency.

In March, the Supreme Court of the State of New York, Appellate Division, First Judicial Department, one of the immediate courts of appeals in the New York court system, in a 3 to 2 decision, held that the state law defamation claims brought by Zervos against President Trump could proceed to discovery.

Relying heavily on Clinton v Jones, 520 US 681 (1997), the majority held that a sitting President is not immune from a civil suit in a state court while in office for pre-presidency actions. This decision affirmed a previous lower court decision that reached the same conclusion.

President Trump appealed the March decision to the New York Court of Appeals, the highest court in New York state. Recently, the Court of Appeals denied Trump’s motion to stay the proceedings. The New York Court of Appeals has yet to decide the merits of President Trump’s appeal, but if the Court rules against him, Trump has vowed to take the matter to the United States Supreme Court.

While the Zervos defamation case may not directly or immediately undermine his presidency, the case could establish a legal precedent, that President Trump is subject to civil or criminal proceedings in state courts. That could potentially expose him to years of civil litigation and possible criminal exposure in the state courts. Given such risks, Trump probably will settle the Zervos defamation suit as the 2020 presidential election nears.

Trump Faces the Possibility of Extensive Discovery

In March, the decision of the Supreme Court of New York, Appellate Division, First Judicial Department attracted only a few days of media coverage. Nevertheless, the suit is legally significant and consequential because, were the case to proceed to discovery, Trump could potentially face extensive discovery, including the possibility of a deposition.

While the Zervos case does not appear consequential at first glance, there are two main reasons why it is significant. First, the case potentially exposes the President to extensive discovery. Second, the case establishes an adverse precedent that a sitting President could be forced to defend state-based claims for pre-presidency actions in state courts.

If the state court judge allows broad discovery, Trump could face a series of questions about his treatment of women over the years during a deposition and other discovery mechanisms. Depending on the scope of the discovery that might include a deposition, Trump could also face questions related to his personal relationships and interactions with women, including Carroll’s recent allegations as well as the other allegations of sexual harassment and sexual assault that numerous women claimed during the 2016 presidential election.

A deposition of President Trump and other discovery in the Zervos case not only would be embarrassing and politically damaging during the 2020 presidential campaign, but could also expose him to criminal liability under New York state law should he answer questions in an untruthful manner or not fully cooperate in the discovery process.

Can a State Prosecutor Indict a Sitting President?

The Zervos defamation case also indirectly raises several legal questions of first impression. A question of first impression is a legal question that has not been firmly established by existing legal precedent.

The Mueller report released in April cited several instances when President Trump may have attempted to obstruct the investigation into Russian meddling in the 2016 presidential election.

Existing protocols established by the U.S. Department of Justice prevent a sitting President from being indicted for alleged violations of federal law. Therefore, even if Mueller or another federal prosecutor believed there was probable cause to conclude that President Trump had committed a federal crime, existing Justice Department guidelines bar federal prosecutors from seeking an indictment against a sitting President.

In response to a hypothetical question from a Democratic member of Congress during the Tuesday hearings, Mueller suggested that a former President could face criminal prosecution after leaving office for criminal acts conducted during his or her presidency.

However, questions of first impression exist regarding whether a state like New York can indict a President for violations of state law that occurred either before he or she assumed the Presidency or for violations of state criminal law committed during the President’s tenure in office. Separate legal issues exist regarding whether the presidency shields a sitting President from state prosecution via the Supremacy Clause or the United States federal system.

Sitting for a state court deposition and then providing false statements, omitting certain information as well as stonewalling or obstructing a state civil matter might expose Trump to criminal liability under state law. While such scenarios are purely hypothetical at the moment, Trump and his counsel must anticipate and prepare for as well try to avoid such risks if possible.

Expect a Settlement of the Zervos Suit before the 2020 Election 

If President Trump appeals any adverse decision in the Zervos defamation case to the Supreme Court, it is difficult to predict whether the Court would hear the case and what the results might be for any future Supreme Court cases.

President Trump’s litigation strategy, however, might decidedly change when he realizes that the Zervos defamation case, as well as any accompanying legal precedent in other New York state proceedings, would potentially expose him to years of state civil litigation and possible criminal liability in New York state.

Due to the high stakes legal and political risks raised by the Zervos case, one could reasonably expect that the President will soon resolve it if he can do simply by writing a check.

While there may be some monetary and short-term political costs associated with a settlement, Trump may prudently conclude that resolving the matter will mitigate some of his post-presidency legal exposure in the New York courts as well as stifle any potentially embarrassing discovery disclosures.

About the Author

James Barney is an Associate Professor of Legal Studies in the School of Security and Global Studies. In addition to possessing a J.D., James has several master’s degrees, including in American foreign policy. He is currently completing his Ph.D. in History. James serves as one of the faculty advisors of the Phi Alpha Delta law fraternity as well as the Model United Nations Club and acts as the pre-law advisor at APU. Currently, he is working on a year-long research project that focuses on Justice Kavanaugh’s impact on the Supreme Court.

James is licensed to practice law in New York, New Jersey, Alabama and the District of Columbia. Over the past several years, he has served in various roles at debating and moot trial competitions in New York and Washington, D.C. In 2019, James will co-coach the APUS mock trial team at Phi Alpha Delta’s annual mock trial competition in Arlington, Virginia, and also serve as one of the faculty advisors for the school’s Model UN delegation to the National Model United Nations conference in Washington, D.C.