Suggesting at least one reason he might have aggressively pursued the job in the first place, attorneys for President Donald Trump are arguing that he cannot be sued in state courts—for sexual harassment, to name one charge at random—while he’s in office. Specifically, Trump’s long-time attorney, Marc Kasowitz, is arguing that former Apprentice contestant Summer Zervos’ case against Trump—in which she says that the former reality show host kissed and groped her without her consent during a “meeting” in his hotel rooms—be thrown out on constitutional grounds.
This isn’t the first time a U.S. president has asserted his immunity to being sued for past conduct while in office. (Or, depressingly, even the first time it’s specifically related to being shitty to women in hotel rooms.) Back in 1997, Bill Clinton argued—in Clinton v. Jones, centered on Paula Jones’ assertions that Clinton sexually harassed her while he was governor of Arkansas—that civil cases against the president should be dismissed or deferred until after they leave office. Clinton’s argument was two-fold: first, that suing the president would violate separation of powers by allowing the judicial branch to “burden” the White House with legal demands, and second that the unique demands and time pressures of the presidency were too important to allow civil actions to distract from them.
The U.S. Supreme Court ruled against Clinton, rejecting the first assertion outright, while being hypothetically sympathetic to the second, with Justice John Paul Stevens writing, “The high respect that is owed to the office of the Chief Executive, though not justifying a rule of categorical immunity, is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery.” (While Clinton eventually won the case itself, his conduct at the trial—and later revelations about witness Monica Lewinsky’s own “high respect” for the office of the Chief Executive—later led directly to his impeachment proceedings.)
Conventional wisdom says that Clinton v. Jones shut the door on presidential arguments of immunity to civil suits. (The ability of the courts to charge the president in criminal cases, meanwhile, has never been in dispute.) But Trump’s lawyers—who are also invoking the “But we’re too busy to be sued!” approach, in the meantime—are taking a slightly different, still technically untested tack for their dismissal attempt. Kasowitz informed the Manhattan Supreme Court today that he’ll be arguing that the case be thrown out on the basis of its supposed violations of the Supremacy Clause of the U.S. Constitution, which says that federal authority and laws supercede those of the states. Hence, Kasowitz argues, Zervos’ case is invalid, since it would involve a state court passing judgement on the head of the executive branch of the federal government.
While that bit of chilling potential precedent is still up in the air, Trump’s team is working to drop a shitty cherry on the legal immunity sundae they’re busy whipping up. Invoking another part of Clinton v. Jones, they’re arguing that the presidential immunity question should be split off and addressed separately from—and in advance of—Zervos and lawyer Gloria Allred’s actual sexual harassment complaints. The upshot would be to focus the conversation (potentially permanently) on a legal discussion of Constitutional law, and not the actual question of whether the president of the United States forced himself on a woman without her consent.