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Exhibit A

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------ x
SUMMER ZERVOS,
:
:
Plaintiff,
:
:
– against –
:
:
DONALD J. TRUMP,
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Defendant.
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Index No. 150522/2017
IAS Part 57
(Justice Schecter)

BRIEF OF LAW PROFESSORS
AS AMICI CURIAE

Justin G. Florence
Larry Schwartztol
The Protect Democracy Project
2020 Pennsylvania Ave. NW, #163
Washington, DC 20006
Telephone: (202) 856-9191
Of Counsel to Amici Curiae
Law Professors

ROPES & GRAY LLP
1211 Avenue of the Americas
New York, New York 10036
Telephone: (212) 596-9000
Attorneys for Amici Curiae
Law Professors
Richard Primus
University of Michigan Law School
Affiliation provided for identification
purposes only
625 S. State St., Ann Arbor, MI 48109
Telephone: (734) 647-5543
Of Counsel to Amici Curiae
Law Professors

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TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ................................................................................................... 1
PRELIMINARY STATEMENT .................................................................................................... 1
ARGUMENT .................................................................................................................................. 3
I.

NO ONE IN OUR NATION IS ABOVE THE LAW; THE SUPREME COURT
HAS ALREADY HELD THAT A SITTING PRESIDENT IS NOT IMMUNE
FROM SUIT BASED ON HIS UNOFFICIAL CONDUCT .............................................. 3

II.

STATE COURTS ARE COMPETENT TO ADJUDICATE CLAIMS AGAINST
FEDERAL OFFICIALS, AND NO EXCEPTION NEED BE MADE FOR
PRESIDENTS ..................................................................................................................... 4

III.

IV.

A.

The Constitution Assumes State Courts Are Adequately Equipped to Address
Nearly Every Issue That Federal Courts Can................................................................ 5

B.

Suits in State Court Need Not Burden or Distract a Sitting President Any More
Than Suits in Federal Courts......................................................................................... 7

FEDERALISM DOES NOT REQUIRE PRESIDENTIAL IMMUNITY FROM
STATE COURT SUITS SEEKING DAMAGES FOR A PRESIDENT’S
UNOFFICIAL CONDUCT .............................................................................................. 10
A.

Footnote 13 of Clinton v. Jones, Relied Upon by Defendant, Does Not Support
Presidential Immunity From State Court Proceedings Challenging Unofficial
Acts ............................................................................................................................. 10

B.

The Supremacy Clause is About the Status of Federal Law, not the Status of
Federal Officials.......................................................................................................... 12

CONGRESS COULD CHOOSE, BUT HAS NOT CHOSEN, TO IMMUNIZE
THE PRESIDENT AGAINST SUIT IN STATE COURT............................................... 15

CONCLUSION ............................................................................................................................. 17

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TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Creighton,
483 U.S. 635 (1987) ...................................................................................................................6
Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971) ...................................................................................................................6
Butz v. Economou,
438 U.S. 478 (1978) ...................................................................................................................3
Claflin v. Houseman,
83 U.S. 130 (1876) .....................................................................................................................5
Clinton v. Jones,
520 U.S. 681 (1997) ......................................................................................................... passim
Cooper v. Aaron,
358 U.S. 1 (1958) .................................................................................................................4, 13
Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938) ...................................................................................................................10
Haines v. Lone Star Shipbulding Co.,
268 Pa. 92 (1920) .......................................................................................................................7
Hancock v. Train,
426 U.S. 167 (1976) .................................................................................................................13
Hortonville Joint School District No. 1. v. Hortonville Education Ass’n,
426 U.S. 482 (1976) ...................................................................................................................7
Kaplan v. Pointer,
501 A.2d 1269 (D.C. Dec. 18, 1985) .........................................................................................7
Mayo v. United States,
319 U.S. 441 (1943) .................................................................................................................12
Murdock v. City of Memphis,
87 U.S. 590 (1875) .....................................................................................................................7
Nixon v. Fitzgerald,
457 U.S. 731 (1982) .............................................................................................................3, 17

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Tafflin v. Levitt,
493 U.S. 455 (1990) ...................................................................................................................5
In re Tarble,
80 U.S. 397 (1872) ...................................................................................................................14
United States v. Lee,
106 U.S. 196 (1882) ...................................................................................................................3
Verlinden B.V. v. Central Bank of Nigeria,
461 U.S. 480 (1983) .................................................................................................................17
Wheeldin v. Wheeler,
373 U.S. 647 (1963) ...................................................................................................................7
Ziglar v. Abassi,
137 S. Ct. 1843 (2017) ...............................................................................................................6
Constitution and Statutes
U.S. Const. art. I.............................................................................................................................16
U.S. Const. art. VI.................................................................................................................... 13-14
28 U.S.C. § 1330 ............................................................................................................................16
28 U.S.C. § 1391 ............................................................................................................................16
28 U.S.C. § 1441 ......................................................................................................................16, 17
28 U.S.C. § 1442 .................................................................................................................... passim
28 U.S.C. §§ 1602–11 ..............................................................................................................16, 17
28 28 U.S.C. § 2679 .........................................................................................................................7
50 U.S.C. § 3901 ............................................................................................................................16
CPLR 5701.......................................................................................................................................9
Other Authorities
DAVID D. SIEGEL, NEW YORK PRACTICE § 526 (5th ed. 2017) ........................................................9
The Federalist No. 82 (A. Hamilton) ...............................................................................................5
U.S. Dep’t of Justice, Office of Legal Counsel, Memorandum for the Attorney
General, Oct. 16, 2000 ........................................................................................................... 8-9

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Brett M. Kavanaugh, Separation of Powers During the Forty-Fourth Presidency
and Beyond, 93 Minn. L. Rev. 1454, 1461 (2009) ..................................................................16
Kevin Diaz, Rep. Michele Bachmann Settles Suit Over Iowa E-Mail List,
StarTribune, July 15, 2013 .........................................................................................................7
Henry C. Jackson, Man Suing Ill. Rep. Over Burns Suffered in Prank, San Diego
Union Tribune, June 10, 2011....................................................................................................7

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INTEREST OF AMICI CURIAE
This amicus curiae brief is respectfully submitted by three law professors—experts in civil
procedure, jurisdiction, and constitutional law—who twenty years ago submitted an amicus curiae
brief in the Supreme Court of the United States in connection with the then-pending case of Clinton
v. Jones. 520 U.S. 681 (1997). That brief argued that the President of the United States was not
immune from civil suit. Amici now make the same argument, this time with specific attention to
state-court proceedings, in order to address the constitutional issue raised by defendant in his
motion to dismiss the complaint (Docket No. 44).
Amici take no position on the truth or falsity of the Complaint’s allegations or the merits
of plaintiff’s claim. Now as in 1997, their concern is with the legal principle that the President,
who is not above the law, is not immune from civil suit for the actions he takes in his unofficial
capacity.
PRELIMINARY STATEMENT
No one in our nation is above the law, not even the President. The Supreme Court has
accordingly held that the Constitution does not immunize the President against civil suits based on
conduct that is wholly unrelated to the President’s execution of his office. Jones, 520 U.S at 694.
Neither the Supremacy Clause nor any other source of constitutional authority prevents state courts
from adjudicating suits against sitting Presidents in their unofficial capacities. On the contrary, by
permitting injured parties to seek redress from a President under appropriate circumstances, state
courts reinforce a bedrock constitutional principle: that in this nation, no one is above the law.
State courts have always been deemed competent to address any legal issue unless
Congress or the Constitution affirmatively provides otherwise. There is no reason to assume that
suits in state court threaten to burden Presidents any more than suits brought in federal court, and
indeed history suggests that the burdens will generally be low. And if a President sued in the court

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of a state not his own for some reason distrusts the state forum, he has the same right as any other
party to remove the case to federal court, where the Supreme Court has already determined he is
amenable to suit.
Neither the Supreme Court’s decision in Jones nor the Supremacy Clause of the U.S.
Constitution immunizes a sitting President from claims brought in state court based on allegations
of unofficial conduct. The Jones Court explicitly declined to address whether a sitting President
may be sued for civil damages in state court. And the plain text of the Supremacy Clause states
that federal laws, not federal officials, are the “supreme law of the land.” The only relevance of
the Supremacy Clause to the issue of state court jurisdiction over federal officers is that state courts
may not block federal policy by exercising “direct control” over federal officers in ways that
prevent those officers from executing their federal duties. An action for money damages such as
this case does not implicate such direct control: subjecting a sitting President to litigation in state
court neither requires him to take particular action nor compels him to neglect his official duties.
Nor is Presidential immunity necessary in order to prevent the President from having to
spend large amounts of time on distracting lawsuits. In the four Presidential terms following Jones,
suits against sitting Presidents in state court have been infrequent. Indeed, amici are unaware of
any instance in which either President George W. Bush or President Barack Obama was required
to spend time dealing with a lawsuit in a private capacity at any time during their combined sixteen
years of service. And if matters were ever to change so much that private litigation against sitting
Presidents unduly impeded the President’s functions, Congress could exercise its authority under
Article I of the Constitution to grant Presidential immunity against claims brought in state court or
to authorize the removal of all suits involving the President to federal court. But no such need has
arisen, and Congress has not chosen to exempt the President from suits in state court.

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For all these reasons and others discussed below, the Court should reject the President’s
argument that he is immune from suit in this Court.
ARGUMENT
I.

NO ONE IN OUR NATION IS ABOVE THE LAW; THE SUPREME COURT HAS
ALREADY HELD THAT A SITTING PRESIDENT IS NOT IMMUNE FROM SUIT
BASED ON HIS UNOFFICIAL CONDUCT
“No man in this country is so high that he is above the law. No officer of the law may set

that law at defiance with impunity. All the officers of the government, from the highest to the
lowest, are creatures of the law and are bound to obey it.” United States v. Lee, 106 U.S. 196, 218
(1882) (quoted with approval in Butz v. Economou, 438 U.S. 478, 506 (1978)). To be sure, the
President is entitled to immunity for his or her official acts. See Nixon v. Fitzgerald, 457 U.S. 731,
754 (1982). But for wrongful conduct not falling within his official duties, the President is subject
to suit like any other person. Thus, in Jones, the Supreme Court unanimously determined that the
President is amenable to civil suit, under state law, in federal court based on events that occurred
before the President took office. 520 U.S. at 694-95.
In Jones, then-President Bill Clinton claimed that a sitting President enjoys temporary
immunity from civil claims based on conduct that occurred before he became President. Id.
Rejecting this contention, the Supreme Court noted that Presidential immunity applies only to a
President’s official acts. Id. at 694 (“[W]e have never suggested that the President, or any other
official, has an immunity that extends beyond the scope of any action taken in an official
capacity.”); see also Nixon, 457 U.S. at 759 (Burger, C. J., concurring) (noting that “a President,
like Members of Congress, judges, prosecutors, or congressional aides—all having absolute
immunity—are not immune for acts outside official duties”). It follows that no President is ever
immune from suits for wrongful conduct occurring before that President assumes office, because
nothing that a person does before becoming President can be an official Presidential act.
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The Jones Court further explained that the principal rationale for Presidential immunity is
to enable Presidents to perform their official functions without fear of personal liability. Jones,
520 U.S. at 693 (citing Nixon, 457 U.S. at 749, 752 & n.32). That rationale for immunity, the
Court noted, “provides no support for an immunity for unofficial conduct.” Id. at 694. It is wholly
inapplicable to suits, like the current suit, that have nothing to do with official Presidential
functions. All of the events at issue in this suit occurred before the defendant ever performed a
Presidential act, and the suit itself was filed before the defendant became President. As in Jones,
this suit arises out of a state law claim stemming from defendant’s unofficial, pre-Presidential
conduct. Id. at 684-85 (noting that the plaintiff brought claims under Arkansas law). It is therefore
unquestionable that the facts giving rise to this suit are far removed from even the “outer perimeter”
of a President’s official duties.
To immunize the President in all cases, including even in cases having nothing to do with
the President’s official duties, would be to attach Presidential immunity not to an office but a
person. And to immunize a person would violate the principle that ours is “a government of laws
and not of men.” Cooper v. Aaron, 358 U.S. 1, 23 (1958) (quoting Massachusetts Declaration of
Rights, pt. 1, art. 30 (1780)).
II.

STATE COURTS ARE COMPETENT TO ADJUDICATE CLAIMS AGAINST
FEDERAL OFFICIALS, AND NO EXCEPTION NEED BE MADE FOR
PRESIDENTS
State courts routinely adjudicate sensitive federal issues and can even exercise jurisdiction

over claims brought against federal officials. A state court’s adjudication of a claim against the
President need not threaten the President’s execution of his official duties any more than suits in
federal court. In consequence, President Trump’s contention that only federal courts can hear
claims brought against a sitting President is meritless.

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The Constitution Assumes State Courts Are Adequately Equipped to Address
Nearly Every Issue That Federal Courts Can

Confidence in state courts is part of the constitutional design. Indeed, it has long been
settled that state courts are presumed competent to adjudicate any case that federal courts can hear,
except for those few categories of cases in which the Constitution grants original jurisdiction to
the United States Supreme Court. See Tafflin v. Levitt, 493 U.S. 455, 458 (1990) (noting that the
Supreme Court “ha[s] consistently held that state courts have inherent authority, and are thus
presumptively competent, to adjudicate claims arising under the laws of the United States.”);
Claflin v. Houseman, 83 U.S. 130, 136 (1876).

To be sure, Congress can overcome the

presumption and by statute specify exclusive federal jurisdiction over particular classes of cases.
See Tafflin, 493 U.S. at 459 (noting that the presumption of concurrent jurisdiction is rebutted
when “Congress affirmatively ousts the state courts of jurisdiction over a particular federal claim”);
Claflin, 83 U.S. at 136 (laying down “the general principle” that “if exclusive jurisdiction be
neither express nor implied, the State courts have concurrent jurisdiction whenever, by their own
constitution, they are competent to take it”); accord The Federalist No. 82 (A. Hamilton) (“State
courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where
it was not expressly prohibited.”). Only when Congress affirmatively specifies that state courts
may not adjudicate a class of cases is the presumption of state court competence overcome.
The presumption of state-court competence extends to cases involving federal officers. For
example, state courts can hear Bivens actions, which allow federal officials to be held liable for
civil damages for violating the U.S. Constitution under the color of federal authority. See, e.g.,
Anderson v. Creighton, 483 U.S. 635, 641 (1987) (upholding a Bivens claim filed in Minnesota
state court); see also Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971) (establishing

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a cause of action against federal officials).1 If state courts are competent to hear damage claims
against federal officials for their official acts, it seems clear that state courts are competent to hear
claims against federal officials for their unofficial conduct. Indeed, Congress has implicitly
recognized the propriety of state-court jurisdiction over suits against federal officers for matters
not arising under the color of their offices. Under 28 U.S.C. § 1442, Congress has made many
such suits removable to federal court if the plaintiffs are aliens. See 28 U.S.C. § 1442(b). But no
provision is made for removal in cases where the plaintiffs are citizens. In short, in the judgment
of Congress, actions by American citizens against federal officials for matters not done under the
color of their offices are fit for resolution in state courts.
State court adjudication is particularly appropriate in cases that, like this one, are centrally
matters of state law. After all, the courts most expert in the application of a given state’s law are
the courts of that state.

In recognition of that expertise, federal courts regard state court

interpretations on matters of state law as fully conclusive. See, e.g., Hortonville Joint School
District No. 1. v. Hortonville Education Ass’n, 426 U.S. 482, 488 (1976) (“We are, of course,
bound to accept the interpretation of [state] law by the highest court of the State.”); Murdock v.
City of Memphis, 87 U.S. 590, 635 (1875).
In short, the Supreme Court has noted that “there is state court jurisdiction of damages
actions against federal officers.” Wheeldin v. Wheeler, 373 U.S. 647, 664 n.13 (1963). It follows

1

Because Congress has chosen in to create a right of removal to federal court for federal officers sued for actions
taken under the color of their offices, see 28 U.S.C. 1442(a)(1), Bivens actions are usually heard in federal court. But
section 1442(a)(1) does not oust state courts of jurisdiction over Bivens actions; state courts are still competent to hear
such cases. To be sure, it is difficult under current doctrine for plaintiffs to prevail on the merits of Bivens actions,
especially in areas where the courts have not already vindicated such claims. See Ziglar v. Abassi, 137 S. Ct. 1843,
1860 (2017) (largely limiting Bivens suits to the specific contexts where such actions have previously been permitted,
such as suits under the Fourth Amendment). But the Supreme Court has never questioned the idea that state courts
are just as competent as federal courts to adjudicate Bivens claims and to assess damages against federal officials when
the merits warrant that result.

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that state courts are competent to adjudicate damage claims against federal officials for wrongful
behavior not involving their official conduct. See, e.g., 28 U.S.C. § 2679(d)(3) (demonstrating
Congress’s recognition of state court competency by requiring remand to state court in cases
brought against federal officials that are subsequently removed to federal court if a district court
determines a federal employee was not acting within the scope of her employment).2
B.

Suits in State Court Need Not Burden or Distract a Sitting President Any More
Than Suits in Federal Courts

In Jones, President Clinton argued that sitting Presidents should enjoy temporary immunity
from all civil suits because litigation would unduly distract a President from the duties of his office.
Jones, 520 U.S. at 697-699. The Supreme Court rejected that argument. Id. at 708. Under Jones,
the general concern that the burdens of litigation might interfere with the President’s duties is not
sufficient to require that the President be immune from suit while in office. Id.
Because the suit in Jones was filed in federal court, the Supreme Court had no occasion to
rule on the question of Presidential immunity in state courts. But civil suits in state courts need
not subject Presidents to litigation burdens meaningfully greater than the burdens of federal court
litigation that the Supreme Court deemed acceptable in Jones. There are two reasons why. First,
state courts can manage cases so as to minimize the burdens of litigation, just as federal courts
can—and sometimes even better. Second, there is very little civil litigation against Presidents in
their unofficial capacities—and of what little there is, a fair amount could in any event be brought
in federal court.

2

See also Henry C. Jackson, Man Suing Ill. Rep. Over Burns Suffered in Prank, San Diego Union Tribune, June 10,
2011,
http://www.sandiegouniontribune.com/sdut-man-suing-ill-rep-over-burns-suffered-in-prank-2011jun10story.html (negligence suit filed against U.S. Rep. Bobby Schilling in Illinois state court); Kevin Diaz, Rep. Michele
Backmann Settles Suit Over Iowa E-Mail List, StarTribune, July 15, 2013, http://www.startribune.com/june-28bachmann-settles-lawsuit-over-iowa-e-mail-list/213609621 (suit for trespass, conversion, invasion of privacy, libel
and slander filed against U.S. Rep. Michele Bachmann in Iowa state court).

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In Jones, the Supreme Court noted that a federal district court adjudicating a suit against a
sitting President should manage the case so as to accommodate the legitimate demands of the
defendant’s office. 520 U.S. at 707. “Although scheduling problems may arise, there is no reason
to assume that the district courts will be either unable to accommodate the President’s needs or
unfaithful to the tradition—especially in matters involving national security—of giving ‘the utmost
deference to Presidential responsibilities.’” Jones, 520 U.S. at 709 (quoting United States v. Nixon,
418 U.S. at 710–711). A state trial court can manage a case with the same considerations in mind.
No less than a federal court, a state court can set the calendar for its proceedings, both with respect
to pretrial matters like discovery and with respect to in-court testimony, so as to minimize the
imposition on a defendant whose official duties properly keep him very busy. Indeed, a civil suit
can be conducted without ever requiring a defendant-President to appear in person.

The

President’s own testimony might not be needed, and if it is, arrangements can be made for him to
testify remotely, as Presidents have done in such circumstances in the past. See Jones, 520 U.S.
at 704-05 (describing instances in which Presidents have given videotaped testimony and also
instances in which Presidents gave depositions as witnesses, both voluntarily and under court
order); see also U.S. Dep’t of Justice, Office of Legal Counsel, Memorandum for the Attorney
General, Oct. 16, 2000 (distinguishing between civil litigation against a sitting President, deemed
permissible under Jones, and criminal prosecution of a sitting President, deemed impermissible by
the Office of Legal Counsel, partly on the ground that civil litigation does not require the
President’s physical presence).
Indeed, New York’s state judicial system is in some ways more able to shield a Presidential
defendant from unnecessary litigation burdens than the federal system is. One of the most
powerful judicial devices for reducing litigation burdens is interlocutory appeal, which permits the

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expedited settlement of potentially crucial issues, and the rules of civil procedure in New York
State Courts provide for interlocutory appeals more generously than the federal system does. See,
e.g., CPLR 5701(a)(2)(iv)-(v); see also DAVID D. SIEGEL, NEW YORK PRACTICE § 526 (5th ed.
2017) (“Although federal practice, like New York’s, allows appeal from final dispositions, an
appeal from an interlocutory order in federal practice is rarely allowed, in contrast with the
unusually generous New York attitude.”).
Finally, any concerns about the burdens on Presidential defendants should be tempered by
an overriding reality about the frequency of civil litigation against sitting Presidents: it barely ever
happens. Even after Jones prominently announced that sitting Presidents are amenable to suit,
four full Presidential terms went by without any President’s having to spend significant time on
civil suits brought against him in his personal capacity. To be sure, it will happen sometimes, as
the current case indicates. But if the past is any guide, such cases will be exceptional: there is
simply no evidence that permitting plaintiffs to file civil suits against sitting Presidents brings on
floods of burdensome litigation. And even within the small number of significant civil suits that
might be brought, some—perhaps most—will be in any event removable to federal court, whether
on federal-question grounds or diversity grounds.3 Considering the low rate of such suits to begin

3

If a case is not removable because the plaintiff and the President are citizens of the same state, or because an out-ofstate plaintiff sues the President in the President’s home state, concerns about state prejudice against the President as
a defendant should be at their lowest ebb. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 74 (1938) (noting that diversity
jurisdiction was created to prevent “discrimination in state courts against those not citizens of the state.”). That leaves
only suits that cannot satisfy the amount-in-controversy requirement. It seems unlikely that plaintiffs with good-faith
claims will bring many small-stakes suits against the President of the United States: suing a powerful person comes
with costs, and if the damages sought are modest, litigation will not likely be worth the effort. To be sure, there
remains the possibility of bad-faith, frivolous litigation in the President’s home state. But it is probably not necessary
to worry much about that prospect. For one thing, there is no history of groundswells of meritless local litigation
against sitting Presidents at any time in our history, including in the two decades since Jones. For another, competent
judges will usually dismiss meritless claims quickly, as Jones itself noted. See Jones, 520 U.S. at 708 (“Most frivolous
and vexatious litigation is terminated at the pleading stage or on summary judgment, with little if any personal
involvement by the defendant.”). Finally, if Congress were to conclude that a rash of small-stakes state-court litigation
were unduly consuming Presidential time, it could by statute waive the amount-in-controversy requirement for federal
diversity jurisdiction in suits against the President, much as it has done for many cases brought by aliens against
federal officers for matters not involving their official conduct. See 28 U.S.C. 1442(b); see also infra, Part IV.

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with—we are aware of none in four terms—and the frequent possibility of removal, the total
volume of cases in which Presidents will be required to spend time defending against civil
litigation in state court should be very small.
For these reasons, there is no basis for concluding that subjecting President Trump to claims
in state court will unduly distract him from the execution of his Presidential duties.
III.

FEDERALISM DOES NOT REQUIRE PRESIDENTIAL IMMUNITY FROM
STATE COURT SUITS SEEKING DAMAGES FOR A PRESIDENT’S
UNOFFICIAL CONDUCT
Neither the Supremacy Clause nor any other constitutional source of authority rooted in

federalism justifies a rule limiting damage actions against sitting Presidents in their unofficial
capacities to federal court. Jones did not involve a suit in state court, so the Supreme Court in that
case did not resolve the question of whether the President may claim immunity from suit in state
court. 520 U.S. at 691, 691 n.13. But the Court’s discussion of the state-court question in Jones
suggests that the federalism problems that might arise in some state-court cases with Presidential
defendants are of no moment in a suit like the current one, which merely seeks damages based on
the defendant’s pre-Presidential conduct.
A.

Footnote 13 of Jones, Relied Upon by Defendant, Does Not Support
Presidential Immunity From State Court Proceedings Challenging
Unofficial Acts

The Supreme Court’s decision in Jones establishes that a sitting President may be sued in
federal court. Because the complaint in Jones was filed in federal court, the Supreme Court
observed that it was “not necessary to consider or decide whether a comparable claim might
succeed in a state tribunal.” Id. at 691. But in footnote 13 of its Jones opinion, the Court took
care to note that suits in state court might require a different analysis—and, in gesturing toward
that analysis, showed that the federalism concerns that sometimes limit state-court jurisdiction are

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not at all implicated in suits for damages based on a defendant’s unofficial conduct. President
Trump’s argument to the contrary fails to grasp the meaning of footnote 13.
Footnote 13 reads as follows:
Because the Supremacy Clause makes federal law “the supreme Law of the Land,”
Art. VI, cl. 2, any direct control by a state court over the President, who has
principal responsibility to ensure that those laws are “faithfully executed,” Art. II,
§3, may implicate concerns that are quite different from the interbranch
separation of powers questions addressed here. Cf., e.g., Hancock v. Train, 426
U.S. 167, 178 -179 (1976); Mayo v. United States, 319 U.S. 441, 445 (1943). See
L. Tribe, American Constitutional Law 513 (2d ed. 1988) (“[A]bsent explicit
congressional consent no state may command federal officials . . . to take action
in derogation of their . . . federal responsibilities”).
Id. at 691 n.13.
The concern animating footnote 13 is not that a civil suit against a President in state court
would inherently raise a problem for federal supremacy. It is that a certain subset of such lawsuits
could raise such a problem. Specifically, a problem could arise if a state court were to order the
President to take or refrain from taking some action, or to appear personally at a specific time.
Those forms of judicial conduct are what the footnote means by “direct control by a state court
over the President[.]” Id. A state court exercising such “direct control” might issue an order that
would directly block a President from executing his office, and that would indeed raise a problem
of federalism. But the possibility of direct control is the only federalism problem to which footnote
13 points.
All three authorities cited in footnote 13 make clear that this kind of interference was the
Court’s concern in Jones. In the first case cited in footnote 13, Hancock v. Train, the Supreme
Court held that the State of Kentucky could not use its control over a permit system to prohibit the
federal government from operating an official federal facility. 426 U.S. 167, 178-79 (1976). In
the second case cited in footnote 13, Mayo v. United States, the Supreme Court ruled that the
Florida Commissioner of Agriculture could not order the cessation of a federal fertilizer
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distribution program. 319 U.S. 441, 443-45 (1943). Finally, the language that footnote 13 quoted
from the third cited authority—a leading constitutional law treatise—reads as follows: “[A]bsent
explicit congressional consent no state may command federal officials ... to take action in
derogation of their . . . federal responsibilities[.]” Jones, 530 at 691 n.13 (citing L. Tribe, American
Constitutional Law 513 (2d ed. 1988)). In short, everything about footnote 13, from its language
to its choice of illustrative authorities, indicates that the only federalism concern the Supreme
Court meant to flag was that state courts must not issue orders purporting to compel the President
to act in his official capacity or preventing him from doing so.
The Supreme Court’s concern with “direct control” is not implicated in the current case. Ms.
Zervos’s suit does not attempt to force a sitting President to execute or abstain from executing his
duties. Indeed, this suit has nothing to do with the defendant’s federal duties. Nor does the suit
call upon this Court to exercise the “direct control” that would be involved if the President were
required to appear in person at a particular time and place: this court has ample techniques for
avoiding such impositions on the President, including accommodation of the President’s schedule
and the ability to permit the President to testify remotely, as occurred in Jones.
Contrary to President Trump’s assertion, therefore, nothing in footnote 13 even hints that an
action merely seeking damages for a defendant’s unofficial conduct would raise any problem of
federalism. This Court can adjudicate Ms. Zervos’s defamation claim without in any way
implicating the concerns about “direct control” that the Supreme Court flagged in Jones.
B.

The Supremacy Clause is About the Status of Federal Law, not the
Status of Federal Officials

President Trump also misreads the Supremacy Clause when he maintains that that Clause
makes him immune from civil suit in state court. The plain text of the Supremacy Clause states
that federal laws, not federal officials, are the “supreme law of the land.” U.S. Const. art. VI, cl.

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2 (stating that “laws of the United States . . . shall be the supreme law of the land”). By claiming
that a constitutional provision securing supreme status for federal law actually confers supreme
status on federal officials, the defendant attributes to the Clause a meaning that the constitutional
text does not support. By then further claiming that those federal officials are thereby entitled to
be exempt from non-federal legal authority even when not acting in their official capacities at all,
the defendant treats the Supremacy Clause as if it subverted one of the most basic principles of our
constitutional system: that legal authority attaches to laws, and as necessary to offices, but not to
persons. See, e.g., Cooper, 358 U.S. at 23 (stating that ours is “a government of laws and not of
men”) (quoting Massachusetts Declaration of Rights, pt. 1, art. 30 (1780)). Like other federal
officials, the President has both an official capacity and a personal one. See, e.g., Jones, 520 U.S.
at 688 (noting that “the rationale for official immunity is inapposite where only personal, private
conduct by a President is at issue”) (citations omitted). When a person who happens to be a federal
official acts in an unofficial capacity, his or her actions do not have the status of law at all, let alone
supreme law.
The Supremacy Clause does not state or imply (1) that sitting Presidents or any other
federal officials are immune from claims brought in state court based on their unofficial conduct;
or (2) that state courts are unable to hear civil suits against the President of the United States. If
anything, the Supremacy Clause confers authority on state courts, rather than stripping them of
that authority. After all, the Clause identifies state judges as the judicial guardians of the supreme
law that the Constitution represents. See U.S. Const. Art. VI, cl. 2 (“This Constitution, and the
laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law
of the land, and the judges in every state shall be bound thereby.”) (emphasis added). To be sure,
the Clause indicates that state judges must exercise their authority so as to uphold the law of the

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land. But it plainly indicates that it expects those state judges to be up to the task, and it says
nothing suggesting that federal officials in their personal capacities are immune from their
authority.
The real Supremacy Clause concern when federal officials are sued in state court is merely
the one to which the Supreme Court pointed in footnote 13 of Jones: a state court must not exercise
“direct control” over federal officials in a way that interferes with, or purports to direct, their
official federal duties. Jones, 520 U.S. at 691 n.13 (1997). To take perhaps the most classic
example, the Supreme Court held long ago that a state court cannot order a federal officer to release
a federal prisoner.

See In re Tarble, 80 U.S. 397, 409 (1872) (“[T]he powers of the National

government could not be exercised with energy and efficiency at all times, if its acts could be
interfered with and controlled for any period by officers or tribunals of another sovereignty.”). All
three authorities in footnote 13 of Jones point to this same “direct control” problem, and that sort
of direct control would indeed raise a federalism issue. But a suit having nothing to do with a
President’s official duties, and in which there is no prospect of the President’s being ordered to do
something inconsistent with those duties, does not raise a Supremacy Clause issue at all.
Given that the Supreme Court in Jones took care to mark the issues that might arise in a case
where a state court exercised “direct control” over a President but gave no indication that such a
suit would be problematic in any other way, Jones should give this Court no qualms about denying
the President’s claim of immunity in the present case. As would be true in federal court, this Court
should manage a case involving the President in a way that reasonably accommodates his need to
perform important public duties. But that consideration does not bar civil suits against sitting
Presidents in federal court, and nothing—neither Jones, nor the Supremacy Clause, nor any other
consideration of federalism—suggests a different result in the courts of New York.

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CONGRESS COULD CHOOSE, BUT HAS NOT CHOSEN, TO IMMUNIZE THE
PRESIDENT AGAINST SUIT IN STATE COURT
If Congress ever came to think that litigation against the President in state courts did

threaten interference with the President’s duties, it could easily remedy the situation with a
statutory grant of immunity. As the federal legislature, Congress is well-positioned to decide
whether something is thwarting federal activity. And the Supreme Court has stated that there is
no reason for courts to invent a constitutional remedy of Presidential immunity given Congress’
ability to create one by statute. See Jones, 520 U.S. at 709 (“If Congress deems it appropriate to
afford the President stronger protection, it may respond with appropriate legislation.”).
Moreover, Congress has in fact exercised its legislative authority to create immunities
against state-court litigation: it just has not done so for suits involving unofficial conduct by the
President. Under federal statutes, uniformed military personnel and foreign sovereigns enjoy
certain immunities against litigation in state court. See, e.g., 50 U.S.C. § 3901 et seq (military
personnel); 28 U.S.C. §§ 1330, 1391(f), 1441(d), 1602–11 (foreign sovereigns). Federal statute
also grants all federal officers the right to move to federal court all litigation brought against them
in connection with the execution of their offices. See 28 U.S.C. § 1442(a). In some cases involving
noncitizen plaintiffs, a federal statute even permits federal officers (surely including the President)
to remove to federal court litigation that does not arise from their official federal conduct. See 28
U.S.C. § 1442(b). In short, Congress is not shy about exercising its authority to create immunities
against state court legislation. But Congress has created no immunity applicable to cases like this
one, in which the President is sued by a citizen for conduct having nothing to do with the
President’s official duties.
In the Servicemembers’ Civil Relief Act, 50 U.S.C. § 3901 et seq., Congress granted
temporary immunity to military servicemembers against suits that impair their ability to focus on

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their duties in service of the national defense. Without question, if Congress can provide immunity
to servicemembers, Congress can do the same for the Commander-in-Chief. Brett M. Kavanaugh,
Separation of Powers During the Forty-Fourth Presidency and Beyond, 93 Minn. L. Rev. 1454,
1461 (2009).4
The congressionally created immunities for foreign sovereigns are contained in the Foreign
Sovereign Immunities Act of 1976 (“FSIA”). 28 U.S.C. §§ 1330, 1391(f), 1441(d), 1602–11.
Notably, the FSIA establishes the scope of foreign states’ immunity in state courts as well as in
federal courts. 28 U.S.C. §§ 1602–11. Congress has also given foreign sovereigns sued in state
court an absolute right to remove those suits to federal court. 28 U.S.C. § 1441(d). Congress could
no doubt do the same with respect to suits against the President.5 Again, Congress has not taken
that step.
Finally, consider 28 U.S.C. § 1442, which creates special rights of removal in suits against
federal officers. In this statute, Congress has authorized federal officers to remove to federal court
all state-court cases “for or relating to any act under color of such office,” 28 U.S.C. § 1442(a)(1),

Congress’s power to grant temporary immunity to servicemembers derives from its power to raise and support armies,
U.S. Const. Art. I, sec. 8, cl. 12. That same congressional power certainly extends to granting immunity to the
Commander-in-Chief of the U.S. military. Given that the rationale for temporary immunity would be to prevent
interference with the President’s execution of his constitutionally assigned role, Congress could also enact temporary
immunity for the President under its power “to make all laws which shall be necessary and proper for carrying into
execution” the powers vested in any officer of the United States. U.S. Const. Art. I, sec. 8, cl. 18. Either way, there
can be no doubt that Congress could create temporary immunity for the President if Congress saw a need for such
immunity.
5
Congress’s power to provide for removal in all cases against foreign sovereigns rests on the existence of the FSIA,
which makes the question of a sovereign defendant’s immunity a question of substantive federal law that must be
addressed in any suit against a foreign state. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493-97 (1983).
It follows that Congress’s power to provide for removal in all cases against foreign sovereigns flows from its power
to enact the FSIA. The FSIA is an exercise Congress’s authority over commerce and foreign relations. Id. at 493.
Accordingly, a parallel federal statute creating immunities against state-court litigation for the President and thereby
creating a basis for the President to remove all state-court actions against him to federal court might require Congress
to invoke some power other than the one that allowed it to enact the FSIA: creating immunity for the President against
state-court legislation might not fall with Congress’s commerce power. But, as noted above, such a statute would
certainly fall within Congress’s power to raise and support armies (given the President’s role as commander-in-chief)
as well as its power to make all laws necessary and proper for carrying into execution the various powers vested in
the President.
4

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as well as lawsuits brought by aliens against federal officers in the courts of states other than the
defendant’s own state, regardless of whether the cases implicate official conduct, 28 U.S.C. §
1442(b). The President has no need of the right of removal granted in § 1442(a)(1), because he is
categorically immune from suits arising from his official actions. Nixon, 457 U.S. at 749. The
immunity granted in § 1442(b) attaches to the President as to all other federal officers, but it has
no applicability in a case like the current one, in which the plaintiff is a U.S. citizen and the state
in which the President is sued is the President’s own home state.
If state-court litigation by U.S. citizens or suits in the courts of Presidents’ home states
were one day perceived to interfere with the President’s duties, Congress could enact a relevant
immunity or, as it did in the FSIA, provide for the removal of all cases against the President to
federal court, where the propriety of litigation against the President has already been settled by
Jones. In short, any problem that might require the solution of Presidential immunity from suit in
state court is fully addressable by Congress. There is no need for courts to preempt legislative
judgment by inventing such an immunity themselves.
CONCLUSION
In Jones, the Supreme Court unanimously held that sitting Presidents are not immune from
civil lawsuits in federal court for their unofficial acts. There is no reason grounded in Supreme
Court precedent, the Constitution, public policy, or logic not to reach the same conclusion with
respect to parallel suits brought in state courts. This Court should reject President Trump’s claim
of immunity and adjudicate the claims brought against him in this case.

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Dated: New York, New York
September 19, 2017
ROPES & GRAY LLP
By: /s/ Robert S. Fischler
Robert S. Fischler
Patrick J. Reinikainen

Douglas Hallward-Driemeier
ROPES & GRAY LLP
2099 Pennsylvania Avenue, NW
Washington, DC 20006-6807
Telephone: (202) 508-4600

1211 Avenue of the Americas
New York, New York 10036
Telephone: (212) 596-9000

Of Counsel to Amici Curiae
Law Professors

Attorneys for Amici Curiae
Law Professors

Justin G. Florence
Larry Schwartztol
The Protect Democracy Project
2020 Pennsylvania Ave. NW, #163
Washington, DC 20006
Telephone: (202) 856-9191

Richard Primus
University of Michigan Law School
Affiliation provided for identification
purposes only
625 S. State St., Ann Arbor, MI 48109
Telephone: (734) 647-5543

Of Counsel to Amici Curiae
Law Professors

Of Counsel to Amici Curiae
Law Professors

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APPENDIX
A
List of Amici Curiae Law Professors
(Affiliations provided for identification purposes only.)
1. Stephen B. Burbank is the David Berger Professor for the Administration of
Justice at the University of Pennsylvania Law School. He is a recognized expert
in the fields of civil procedure and judicial administration.
2. Richard D. Parker is the Paul W. Williams Professor of Criminal Justice at
Harvard Law School, where he has taught constitutional law since 1974.
3. Lucas A. Powe Jr. holds the Anne Green Regents Chair in Law and is also Jr.
is a Professor of Government Law at the University of Texas at Law School. He
is an expert in constitutional law.