A Little-Noticed Legal Ruling That Is Bad News for Trump

Can the president of the United States be sued for damages in a civil proceeding?

Can the president of the United States be sued for damages in a civil proceeding?

The answer depends on the nature of the president's alleged misconduct. In Nixon v. Fitzgerald (1982), the U.S. Supreme Court ruled that the president has immunity from civil suits that arise from the performance of his official duties. "In exercising the functions of his office," the Court said, "the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages."

The president's behavior off the job, however, is a different matter. In Clinton v. Jones (1997), the Supreme Court allowed former Arkansas state employee Paula Jones' sexual harassment and defamation suit against President Bill Clinton to proceed in federal court because the "rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct."

Which brings us to Donald Trump. In March, a judge allowed a defamation suit filed by former Apprentice contestant Summer Zervos to proceed against the show's former host. "It is settled," wrote New York Supreme Court Justice Jennifer Schecter, that even the president "has no immunity and is 'subject to the laws' for purely private acts."

The case originated in 2016, when Zervos claimed Trump had kissed and groped her in 2007 without her consent. Then-candidate Trump denied those allegations, repeatedly describing Zervos as a liar and fabricator. She filed suit in response in January 2017, saying he made those statements about her "knowing they were false and/or with reckless disregard for their truth or falsity." She seeks $2,914 in damages, which is the amount of money she says her restaurant business lost as a result of Trump's alleged defamations.

Justice Schecter's opinion did not address the merits of Zervos' complaint; it merely allowed the suit to move forward. But that is still a critical loss for Trump, who faces the possibility of real trouble as this litigation unfolds.

Remember that the effort to impeach Clinton did not truly begin to build steam until after Clinton lied under oath about his relationship with Monica Lewinsky. That act of perjury occurred during Clinton's deposition in the Paula Jones lawsuit. Trump's opponents are hoping the president will make a comparable misstep in this case.