New York County Clerk?s Index No. 150522/2017 392133 33:31:13 ?upreme Qtuurt appellate Enigma-first Enlistment SUMMER ZERVOS, PlaintiffRespondem, -against- DONALD J. TRUMP . Defendant?Appellant. BRIEF OF LAW PROFESSORS AS AMI CI URIAE Justin G. Florence ROPES GRAY LLP Larry Schwartztol 1211 Avenue of the Americas The Protect Democracy Project New York, New York 10036 2020 Ave. NW, #163 Telephone: (212) 596-9000 Washington, DC 20006 Telephone: (202) 856?919]. Attorneysfor Amici Curiae Law Professors OfCormse! In Amiei Curiae Law Professors . Richard Primus 'I;.1U11iversity ofMichigan Law School I provider! for identi?cation purposes only 625 S. State St., Ann Arbor, MI 48109 Telephone: (734) 647?5543 Of Counsel to Amici Curiae Law Professors ON PAPER 3 TABLE OF CONTENTS INTEREST OF AMICI CURIAE 1 INTRODUCTION AND SUMMARY OF ARGUMENT 1 PROCEDURAL HISTORY 4 ARGUMENT 5 I. THE PRESIDENT IS NOT IMMUNE FROM SUIT BASED ON HIS UNOFFICIAL CONDUCT 5 II. THE SUPREMACY CLAUSE DOES NOT IMMUNIZE THE PRESIDENT FROM SUIT IN STATE COURT INVOLVING UNOFFICIAL CONDUCT 7 A. Footnote 13 of Jones, Relied Upon by Appellant, Does Not Support Presidential Immunity From State Court Suits Concerning Unof?cial Acts 8 B. Contrary to Appellant?s Arguments, the Supremacy Clause is About the Status of Federal Law, Not Federal Of?cials 11 STATE COURTS ARE COMPETENT TO ADJ UDICATE CLAIMS AGAINST FEDERAL OFFICIALS, AND NO EXCEPTION NEED BE MADE FOR PRESIDENTS 14 A. State Courts Can Manage Actions Unrelated to the President?s Of?cial Conduct 14 B. Suits in State Court Need Not Burden or Distract a Sitting President Any More Than Suits in Federal Courts 17 IV. CONGRESS COULD CHOOSE TO IMMUNIZE THE PRESIDENT AGAINST SUIT IN STATE COURT BUT HAS NOT DONE SO 22 CONCLUSION 24 TABLE OF AUTHORITIES Page(s) Cases Anderson v. Creighton, 483 U.S. 635 (1987) 15 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) 15 Cannaday v. Sandoval, 458 Fed. Appx. 563 (7th Cir.2012) 19 Cla?in v. Houseman, 93 U.S. 130 (1876) 15 Clinton v. Jones, 520 U.S. 681 (1997) passim Cooper v. Aaron, 358 7,12 Erie RR. Co. v. Tompkins, 304 U.S. 64 (1938) 21 Hancock v. Train, 426 U.S. 167 (1976) 8, 9 Mayo v. United States, 319 U.S. 441 (1943) 8,9 McClung v. Silliman, 19 U.S. 598 (1821) 10 Nevada v. Hicks, 533 U.S. 353 (2001) 14 Nixon v. Fitzgerald, 457 U.S. 731 (1982) 5, 6, 23 a?lin v. Levitt, 493 U.S. 455 (1990) 15 ii arble ?s Case, 80 U.S. 397 (1871). 10 Tennessee v. Davis, 100 U.S. 257 (1879) 10 United States v. Lee, 106 U.S. 196 (1882) 5 Wheeldin v. Wheeler, 373 U.S. 647 (1963) 15 Ziglar v. Abassi, 137 S. Ct. 1843 (2017) 16 Statutes 28 U.S.C. 1330, 1391(1), 23 28 U.S.C. 1442(a) 23 28 U.S.C. 1442(a)(1) 15, 16, 23 28 U.S.C. 1442(b) 17, 22, 23 28 U.S.C. 2679(d)(3) 16 50 U.S.C. 3901 et seq 23 Other Authorities Brett M. Kavanaugh, Separation of Powers During the arty-F ourth Presidency and Beyond, 93 Minn. L. Rev. 1454, 1460-61 (2009) 22 CPLR 18 DAVID D. SIEGEL, NEW YORK PRACTICE 526 (5th ed. 2017) 18 Man Suing Ill. Rep. Over Burns Su?ered in Prank, SAN DIEGO UNION- TRIBUNE, June 10, 2011, 1 jun 1 0?st0ry.html 1 6 Rep. Michele Bachmann Settles Suit Over Iowa E-Mail List, STAR TRIBUNE, July 15, 2013, 13 609621 16 US. Const. art. 1 15 US. Const. art. VI, cl. 2 passim U.S. Dep?t of Justice, Of?ce of Legal Counsel, Memorandum for the Attorney General, Oct. 16, 2000 18, 19 iv 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 12. Jones, 520 US. 681 (1997). That brief argued that the President of the United States was not immune from civil suit. As they did before the New York Supreme Court (the ?trial court?) in this case, amici now make the same argument, this time with speci?c attention to state court proceedings, to address the constitutional issue raised by appellant in his brief appealing the trial court?s denial of his motion to dismiss. Amici take no position on the truth of the allegations in respondent?s complaint (the ?Complaint?) or the merits of respondent?s underlying claim. Now as in 1997, their sole concern is the proposition that the President, who is not above the law, is not immune from civil suit for the actions he takes in his unof?cial capacity. INTRODUCTION AND SUMMARY OF ARGUMENT No one in our nation is above the law, not even the President. The Supreme Court in Jones clearly held that the Constitution does not immunize the President from civil suits based on conduct wholly unrelated to the execution of his of?ce. 520 US at 694. Despite appellant?s arguments to the contrary, neither the Supremacy Clause nor any other constitutional principle prevents state courts from adjudicating claims brought against sitting Presidents when those claims implicate only the defendant?s unof?cial acts and capacities. See US. Const. art. VI, cl. 2. It is axiomatic that state courts are competent to address any legal issue unless Congress or the Constitution af?rmatively provides otherwise. Congress has not immunized sitting Presidents from civil suits, though it clearly could do so. And contrary to appellant?s thesis, the Constitution?s Supremacy Clause does not oust state courts of jurisdiction over suits against a sitting President. The Supremacy Clause provides for the supremacy of federal laws, not federal of?cials. Because the Supremacy Clause does make federal laws supreme, the Jones Court recognized that the Supremacy Clause may prevent state courts from exercising ?direct control? over federal of?cers in ways that interfere with the execution of federal authority. 520 US at 691. But this concern has no relevance in suits involving only the unof?cial actions of people who happen to be federal of?cers. In a suit involving only unof?cial conduct?like this one?state?court jurisdiction cannot create a supremacy problem, because the court will not do anything requiring a federal of?cial to take or refrain from taking any of?cial action. The trial court correctly rejected appellant?s premise that state courts are less able than federal courts ?to accommodate the President?s needs or [to give] ?the utmost deference to Presidential Id. at 12?1 3 (citing Jones, 520 US. at 709). With respect to case management, a suit in state court need impose no greater burden on a President than a suit in federal court. And the trial court fully acknowledged that to the extent that the President must attend to a governmental or international crisis, ?federal responsibilities will take precedence.? Id. at 13. Appellant argues that Presidential immunity is necessary to protect the President from having to expend signi?cant time on distracting lawsuits. See Brief for Appellant-Defendant (?App at 15. History does not support that assertion. In the four Presidential terms following Jones, suits against sitting Presidents in state court were either nonexistent or close to it. Appellant has identi?ed no 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. Moreover, Jones authorizes suits against sitting Presidents in federal court, and there is no basis for believing that state court litigation involving unof?cial acts would interfere with the President?s duties any more than the same litigation in federal court would. Finally, if private litigation against sitting Presidents ever began to unduly impede the President?s functions, Congress could exercise its authority under Article I of the Constitution to grant the President immunity against claims brought in state court or to authorize the removal of all suits involving the President to federal court. Yet, in the twenty years following Jones, Congress has not deemed it necessary to pass such a law. Thus, the trial court properly concluded that ?[t]here are no compelling reasons for delaying plaintiff?s day in court here.? Trial Court Op. at 14. For all these reasons and others discussed below, the Court should reject appellant?s argument that he is immune from suit in state court. PROCEDURAL HISTORY On January 17, 2017, respondent commenced this defamation action in the trial court. Trial Court Op. at 8. Three days later, appellant became the 45th President of the United States. Id. On July 7, 2017, appellant moved to dismiss or in the alternative stay this action until he leaves of?ce. Appellant argued that the Supremacy Clause of the Constitution prevents the trial court from hearing this action. See Memorandum of Law in Support of President Donald J. Trump?s Motion to Dismiss and Strike the Complaint (?Def (Doc. No. 44) at 10-12. Appellant further argued that respondent failed to state a claim for defamation. Id. at 20-22. On March 20, 2018, the trial court denied appellant?s motion to dismiss. The trial court held that the rule articulated by the Supreme Court in Jones?that the President is not immune from a suit that relates entirely to his unof?cial conduct? applies with equal force to state-court suits. Id. at 9?10. The trial court reasoned that ?[n]othing in the Supremacy Clause of the United States Constitution even suggests that the President cannot be called to account before a state court for wrongful conduct that bears no relationship to any federal executive responsibility.? Id. at 10. When only unof?cial conduct is at issue, ?[t]here is no possibility that a state court will compel the President to take any of?cial action or that it will compel the President to refrain from taking any of?cial action.? Id.1 With respect to the merits of respondent?s allegations, the trial court held that the Complaint suf?ciently stated a claim for defamation. Id. at 18. The trial court therefore denied appellant?s motion to dismiss. Id. ARGUMENT I. THE 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 of?cer of the law may set that law at de?ance with impunity. All the of?cers 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 US. 196, 218 (1882). To be sure, the President is entitled to immunity for his o?icial acts. See Nixon 12. Fitzgerald, 457 US. 731, 754 (1982). But with respect to wrongful conduct outside of his of?cial duties, the President is subject to suit like any other person. Accordingly, the Supreme Court in Jones unanimously determined that the President is amenable to civil suit in federal court, for alleged violation of state law, based on events that occurred before the President 1 Adopting the reasoning in Jones, the Trial Court recognized that ?important federal responsibilities will take precedence? in the event of con?ict with the court?s case management, but that such a possibility could not justify a categorical rule of immunity. Trial Court Op. at 13. took of?ce. 520 US. at 694?95. The trial court correctly determined that ?[t]he rule is no different for suits commenced in state court related to the President?s unof?cial conduct.? Trial Court Op. at 10. In Jones, 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 of?cial acts. Id. at 694 have never suggested that the President, or any other of?cial, has an immunity that extends beyond the scope of any action taken in an of?cial capacity?); see also Nixon v. Fitzgerald, 457 US. 731, 759 (1981) (Burger, C. ., concurring) (noting that ?a President, like Members of Congress, judges, prosecutors, or congressional aides?all having absolute immunity?are not immune for acts outside of?cial duties?). A President thus enjoys no immunity from suit based on his unof?cial conduct. Nothing that a person does before becoming President could be an of?cial Presidential act. See, e. g, Jones, 520 US. at 685 (relevant acts occurred prior to Bill Clinton?s presidency). As the trial court observed, all of the events at issue in this suit occurred before appellant ever performed a Presidential act. Trial Court Op. at 1?8. Like Jones, this suit arises out of a state-law claim stemming from unof?cial, pre-Presidential conduct. See Jones at 684-85 (noting that the plaintiff brought claims under Arkansas law). It is therefore clear that the facts giving rise to this suit are beyond even the ?outer perimeter? of a President?s of?cial duties. Id. at 685. To immunize the President in all cases, including cases having nothing to do with the President?s of?cial duties, would be to attach Presidential immunity not to the federal of?ce but to a person. That would violate the principle that ours is ?a government of laws and not of men.? Cooper v. Aaron, 358 US. l, 23 (1958) (quoting Massachusetts Declaration of Rights, pt. 1, art. 30 (1780)). II. THE SUPREMACY CLAUSE DOES NOT IMMUNIZE THE PRESIDENT FROM SUIT IN STATE COURT INVOLVING UNOFFICIAL CONDUCT Appellant?s insistence that the Supremacy Clause bars suits against sitting Presidents brought in state courts, see App. Br. at 10, has no basis in precedent and relies on the fallacy that the Supremacy Clause attaches to the President as a person. Neither the Supremacy Clause nor any other constitutional principle would justify limiting to federal courts the jurisdiction Jones upheld over damages actions against sitting Presidents in their unof?cial capacities. Because Jones did not involve a state court suit, the Supreme Court did not resolve the question of whether the President may claim immunity from suit in that forum. In a footnote, the Court noted that a state-court suit against a sitting President might raise different issues. 520 US. at 691, 691 n.13. But those issues cannot arise in a case like this one, which concerns only the appellant?s unof?cial actions. Problems would arise under the Supremacy Clause, footnote 13 indicates, if state courts were to intrude into federal government operations. Id. But a suit like the present one, which has no connection to the appellant?s role in executing federal law, cannot raise a problem under the Supremacy Clause. A. Footnote 13 of Jones, Relied Upon by Appellant, Does Not Support Presidential Immunity From State Court Suits Concerning Unof?cial Acts Because the entirety of appellant?s argument rests on his misreading footnote 13, that footnote bears repeating in full. It 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. 11, may implicate concerns that are quite different from the interbranch separation of powers questions addressed here. Cf, Hancock v. Train, 426 US. 167, 178 ?179 (1976); Mayo v. United States, 319 US. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed. 1988) explicit congressional consent no state may command federal of?cials . . . to take action in derogation of their . . . federal responsibilities?). Jones, 520 US. at 691 n.13. As the trial court recognized, ?each and every one of the concerns that the United States Supreme Court raised [in footnote 13] implicates unlawful state intrusion into federal government operations.? Trial Court Op. 11 (emphasis supplied). In other words, the concern animating footnote 13 is not that any civil suit against a President in state court would inherently raise problems under the Supremacy Clause. It is that a certain subset of such lawsuits could raise such a problem. A Supremacy Clause problem would arise if a state court ordered the President to take or refrain from taking some of?cial action, or to appear personally at a speci?c time and place in a manner that would interfere with the President?s execution of his of?cial duties. Those forms of judicial conduct are what the footnote means by ?direct control by a state court over the Id. A state court exercising such ?direct control? might issue an order that would block a President from executing his of?ce, and that would indeed raise a problem under the Supremacy Clause. But no such problem arises in a suit that merely seeks damages for conduct having nothing to do with the President?s of?cial role. The three authorities cited in footnote 13 make clear that the Court?s Supremacy concern in Jones went only to the possibility of a state?s asserting control over federal of?cers in ways that would interfere with their execution of federal law. In the ?rst case cited in footnote 13, Hancock v. Train, 426 US. 167 (1976), the Supreme Court held that Kentucky could not force federal facilities located within the State to obtain state permits in order to operate. Id. at 178?79. 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 distribution program. 319 US. 441, 443-45 (1943). In both instances, the state was asserting authority to control a federal of?cer?s exercise of his of?cial federal responsibilities. Footnote 13?s quotation of a leading constitutional law treatise is to the same effect: it states that ?absent explicit congressional consent no state may command federal of?cials . . . to take action in derogation of their . . . federal Jones, 530 US. at 691 n.13 (citing L. Tribe, American Constitutional Law 513 (2d ed. 1988)) (emphasis added). In short, everything about footnote 13, from its language to its choice of illustrative authorities, supports the conclusion that the Court had a speci?c federalism concern in mind: state courts may not compel the President to take or refrain from taking acts in his of?cial capacity or otherwise prevent him from executing his of?ce.2 The trial court correctly held that the Supreme Court?s concern with ?direct control? is not directly implicated in a case, like this, in which ?only unof?cial conduct is in question,? Trial Court Op. at 12, and in which the respondent seeks only damages rather than any sort of injunctive relief. Appellant insisted below, however, that any state court action necessarily violates the Supremacy Clause because it presumes the state court?s authority to ?compel the attendance of the President at any speci?c time or place.? See 2 The additional authorities that appellant cites, Def. Br. at 12-13, are Concerned with the same speci?c problem of states? controlling of?cial federal actions. In Tennessee v. Davis, the Supreme Court upheld a federal statute authorizing removal of state actions against federal of?cials engaged in federal duties. 100 US. 257, 267 (1879). In Tarble ?s Case, the Supreme Court held that a state court could not order a federal of?cer to discharge a federal prisoner. See generally 80 US. 397 (1871). Finally, in McClung v. Silliman, the Court held that a state court could not issue a writ of mandamus compelling federal of?cers to take governmental actions. 19 US. 598, 605 (1821). 10 Defendant?s Reply Brief (?Reply at 22 (citing Jones, 520 US. at 691); see also App. Br. at 10-11. That isn?t true: adjudicating the present suit need not require the President to appear in person at any particular time and place that might interfere with his of?cial federal duties. The trial 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 the Court noted in Jones. See 520 US. at 692. The concerns identi?ed by the Supreme Court in footnote 13 are thus not implicated. B. Contrary to Appellant?s Arguments, the Supremacy Clause is About the Status of Federal Law, Not Federal Of?cials The full breadth of appellant?s argument is revealed by the assertion that ?[b]ecause the President alone is vested with the entire executive authority he is inseparable ?om the o?ice he holds.? App. Br. at 12 (emphasis added). Although appellant protests that this position ?in no way place[s] the President ?above the law?? because ?the Supremacy Clause itself [is] part of the law,? id. at 16, even this assertion betrays appellant?s fundamental confusion, which is to conflate the Of?ce of the President with the person who occupies the Of?ce. That argument cannot be squared with the text of the Supremacy Clause, nor with Jones itself. Appellant?s argument founders ?rst on the plain text of the Supremacy Clause, which dictates that federal laws, not federal of?cials, are the ?supreme law of the land.? US. Const. art. VI, cl. 2 (stating that ?laws of the United States . . . shall be 11 the supreme law of the land?). By claiming that a constitutional provision securing supreme status for federal law actually confers supreme status on federal o??icials, appellant attributes to the Clause a meaning that the constitutional text does not support. See App. Br. at 12-13. By then claiming that those federal of?cials are thereby entitled to exemption from non-federal legal authority even when not acting in their of?cial capacities at all, appellant treats the Supremacy Clause as though it were in tension with the fundamental principle of our constitutional system: that ours is ?a government of laws and not of men.? See, e. Cooper v. Aaron, 358 US. 1, 23 (1958) (quoting Massachusetts Declaration of Rights, pt. 1, art. 30 (1780)). Appellant contends that the distinction between of?cial and unof?cial conduct is ?illusory? when it comes to the President. See Reply Br. at 20. But the Supreme Court says precisely the opposite. The Jones Court made clear that ?immunities are grounded in ?the nature of the function performed, not the identity of the actor who performed 520 US. at 695 (citing Forrester v. White, 484 US. 219, 229 (1988)), and that ?the rationale for of?cial immunity is inapposite where only personal, private conduct by a President is at issue,? id. at 688 (citations omitted). In other words, the President?s ?personal, private? capacity is distinct from his of?cial capacity, and in his personal capacity he is not immune from suit. For that reason, the Supreme Court expressly held that the President could be sued, while in of?ce, for private actions taken before assuming of?ce. Id. at 684. Further, Appellant?s 12 position would mean that whether a plaintiff with a valid state-law claim arising from a President?s unof?cial conduct could obtain relief for his or her injuries would depend on the happenstance of whether that plaintiff could invoke the federal courts? diversity jurisdiction. This View is illogical, as there is no reason the Constitution would create immunity only for non-federal civil legal violations that were committed against citizens of the President?s home state. Given the fundamental distinction between the of?cial conduct of federal of?ceholders and the personal actions of persons who happen to occupy federal of?ce, the Supremacy Clause does not imply that sitting Presidents, any more than other federal of?cials, are immune from claims brought in state court based on their unof?cial conduct. Trial Court Op. at 10. To the contrary, the Supremacy Clause expressly recognizes the authority of state courts, rather than stripping them of that authority. After all, the Clause identi?es state judges as the judicial actors who will implement ?the supreme law of the land.? See US. 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 consistently with federal law. But it expects those state judges to be up to the task, and it says nothing suggesting that the individual persons who hold federal of?ce are immune in their personal capacities l3 from state judicial authority any more than it says that such persons are immune in their personal Capacities from state regulatory authority. Even the President must pay his state income taxes, for example: state-law authority binds him, with no Supremacy problem whatsoever. The status of state judicial authority is no different. 111. STATE COURTS ARE COMPETENT TO ADJUDICATE CLAIMS AGAINST FEDERAL OFFICIALS, AND NO EXCEPTION NEED BE MADE FOR PRESIDENTS Appellant asserts that state courts may not exercise jurisdiction over a sitting President beCause state courts are somehow less equipped than federal courts to manage suits to avoid burdening the Presidency. See App. Br. at 12. But a state court?s adjudication of a claim against the President in his personal capacity need not threaten the President?s execution of his of?cial duties any more than a suit in federal court. Appellant?s contention that only federal courts can hear state law claims brought against a sitting President is meritless. A. State Courts Can Manage Actions Unrelated to the President?s Of?cial Conduct As the trial court recognized, resolution of this defamation action?an action unrelated to the President?s of?cial conduct??is the responsibility of the state court and is not impermissible ?direct control . . . over the President.? Trial Court Op. at 13 (citing Jones, 520 US. at 691, n.13). State courts are courts of general jurisdiction. Nevada v. Hicks, 533 US. 353, 366 (2001). It has long been settled that state courts are presumed competent to adjudicate any case that federal courts 14 can hear, except for those few categories of cases in which the Constitution grants original jurisdiction to the United States Supreme Court. See a?lz?n 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?); Cla?in v. Houseman, 93 U.S. 130, 136 (1876). Indeed, the Constitution contemplated that state courts might be the only lower courts. See U.S. Const. art. 111, 1 (authorizing Congress to create lower federal courts, but not requiring it to do so). Only when Congress af?rmatively speci?es that state courts may not adjudicate a class of cases is the presumption of state court competence overcome. See a?lin, 493 U.S. at 459. The presumption of state court competence extends to cases involving federal of?cers. See, Wheeldin v. Wheeler, 373 U.S. 647, 664 n.13 (1963) (?there is state court jurisdiction of damages actions against federal of?cers?). Indeed, state courts can hear Bivens actions, in which federal of?cials can be held liable for civil damages for violating the U.S. Constitution under the color of federal authority. See, e. Anderson v. Creighton, 483 U.S. 635, 641 (1987) (upholding a Bivens claim ?led in Minnesota state court); see also Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971) (establishing a cause of action against federal If 3 Because Congress has chosen to create a right of removal to federal court for federal of?cers sued for actions taken under the color of their of?ces, see 28 U.S.C. 15 state courts are competent to hear civil money damages claims against federal of?cials for their o?icial acts, it follows a fortiori that state courts are competent to hear claims against federal of?cials for their unof?cial conduct. Indeed, Congress itself has recognized the propriety of state court jurisdiction over suits against federal of?cers for matters not arising under the color of their of?ces. For example, in the Westfall Act, Congress authorized removal to federal court of certain suits against federal of?cials, but required remand to state court if a district court determines the federal employee was not acting Within the scope of her employment. 28 U.S.C. 2679(d)(3). 4 Congress similarly has made many suits against federal of?cials removable to federal court if the plaintiffs are noncitizens, but not if the plaintiffs 1442(a)(l), 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 dif?cult 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 speci?c 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 equally competent to federal courts to adjudicate Bivens claims and to assess damages against federal of?cials when the merits warrant that result. 4 See also Henry C. Jackson, Man Suing Ill. Rep. Over Burns Suffered in Prank, SAN DIEGO UNION-TRIBUNE, June 10, 201 1, 1jun10-story.html (negligence suit ?led against US. Rep. Bobby Schilling in Illinois state court); Kevin Diaz, Rep. Michele Bachmann Settles Suit Over Iowa E?Mail List, STAR TRIBUNE, July 15, 2013, list/213609621 (describing suit for trespass, conversion, invasion of privacy, libel and slander ?led against US. Rep. Michele Bachmann in Iowa state court). 16 are citizens. See 28 U.S.C. 1442(b). Thus, Congress has recognized that state courts are ?t to resolve actions by American citizens against federal of?cials for matters involving their unof?cial conduct. 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 of?ce. 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 suf?cient to require that the President be immune from suit while in of?ce. Id. Because the suit in Jones was ?led in federal court, the Supreme Court had no occasion to rule on the question of Presidential immunity in state courts. However, the trial court properly concluded that ?[s]tate courts can manage lawsuits against the President based on private unof?cial conduct just as well as federal courts and can be just as mindful of the ?unique position in the constitutional scheme that the of?ce occupies.?? Trial Court Op. at 13 (citing Jones, 520 U.S. at 698). In Jones, the Supreme Court noted that a federal district court adjudicating a suit against a sitting President could manage the case so as to accommodate the legitimate demands of the of?ce. 520 U.S. at 707. ?Although scheduling problems may arise, there is no reason to assume that the district courts will be either unable 17 to accommodate the President?s needs or unfaithful to the traditionmespecially in matters involving national security?of giving ?the utmost deference to Presidential responsibilities.? Jones, 520 US. at 709 (quoting United States v. Nixon, 418 US. 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.5 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 US. at 704-05 (describing instances in which Presidents gave 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, Of?ce of Legal 5 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 expedited resolution of potentially dispositive issues. New York?s rules of civil procedure permit interlocutory appeals more generously than the federal system. See, e. CPLR see also DAVID D. SIEGEL, NEW YORK PRACTICE 526 (5th ed. 2017) (?Although federal practice, like New York?s, allows appeal from ?nal dispositions, an appeal from an interlocutory order in federal practice is rarely allowed, in contrast with the unusually generous New York attitude?). 18 Counsel, Memorandum for the Attorney General, Oct. 16, 2000 (distinguishing between civil and criminal proceedings against a sitting President partly on the ground that civil litigation does not require the President?s physical presence). Of course, in the event that the President must attend to a governmental or international crisis, ?federal responsibilities will take precedence.? Trial Court Op. at 13.6 Appellant also argues that allowing Jones to proceed was erroneous because it disrupted and impaired President Clinton?s ability to discharge his Article II responsibilities. See Def. Br. at 18. The ?rst thing that must be said about this argument is that appellant cannot prevail by arguing that the United States Supreme Court erred in Jones. This Court is bound by the view expressed in Jones, not by a contrary view now expressed by appellant in litigation. Moreover, the concern that permitting civil litigation against sitting Presidents will impair their ability to discharge their responsibilities should be tempered by a basic reality about the infrequency of civil litigation against sitting Presidents: it almost never happens. Even after Jones prominently announced that sitting Presidents are amenable to suit, four full Presidential terms went by without any 6 To the extent ?the tradition?especially in matters involving national security?of giving ?the utmost deference to Presidential Jones, 520 US. at 709 (quoting United States v. Nixon, 418 US. at 710?711), is a substantive rule of federal law, it would also bind state courts. See, e. Cannaday v. Sandoval, 458 Fed. Appx. 563, 566 (7th Cir.2012) (applying federal common law doctrine of ?quali?ed immunity? to state courts). 19 President?s having to spend signi?cant time On civil suits brought against him in his personal capacity. To be sure, it can happen, as the current case indicates.7 But if the past is any guide, such cases will be exceptional: there is simply no evidence that permitting plaintiffs to ?le civil suits against sitting Presidents brings on ?oods of burdensome litigation. And even within the small number of signi?cant civil suits that might be brought, some?perhaps most?will be removable to federal court, whether on federal question grounds or diversity grounds. Considering the low rate of such suits to begin with?amici 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. Finally, appellant argues that there should be signi?cant concern about ?local prejudice? that could exist at the state level arising from partisan hostility toward a sitting president. See App. Br. at 14-15. That contention ignores how rare the scenario involving that risk would be, given the infrequency of litigation against Presidents and the likelihood that any state-court action raising the risk of such local prejudice against a President would be removable to federal court. 7 The unique circumstances underlying the suits identi?ed by appellant, see Br. 15 n.10, do not support a conclusion that they re?ect a more general trend or concern. Moreover, the President is not actually a named defendant in many of the cases cited and most of the cases cited are in federal court and thus not relevant here. 20 If a case is not removable because the plaintiff and the President are citizens of the same state, or because an out-of-state 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 RR. Co. v. Tompkins, 304 US. 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 US. 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 21 for federal diversity jurisdiction in suits against the President, much as it has done for many cases brought by aliens against federal of?cers for matters not involving their of?cial conduct. See 28 U.S.C. 1442(b); see also infra, Part IV. Considering the low rate of civil actions against Presidents to begin with (none in four terms), the proportion of such actions that would be brought in federal court in the ?rst place, and the high likelihood of removability in the rest, the total volume of cases raising the risk of local prejudice against Presidents in state courts should be vanishingly small. And especially small in cases in courts of the President?s home state. For these reasons, there is no basis for concluding that subjecting appellant to claims in state court will unduly distract him from the execution of his Presidential duties. IV. CONGRESS COULD CHOOSE TO IMMUNIZE THE PRESIDENT AGAINST SUIT IN STATE COURT BUT HAS NOT DONE SO If Congress ever decided 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. See Jones, 520 US. at 709 (?If Congress deems it appropriate to afford the President stronger protection, it may respond with apprOpriate legislation?); see also Brett M. Kavanaugh, Separation of Powers During the Forty-Fourth Presidency and Beyond, 93 Minn. L. Rev. 1454, 1460-61 (2009) (noting that Congress could, but has not, legislated Presidential 22 immunity from civil suit). In fact, Congress has exercised its legislative authority to create other immunities against state court litigation, including in some cases for federal of?cers. Under federal statutes, uniformed military personnel and foreign sovereigns enjoy certain immunities against litigation in state court. See, 50 U.S.C. 3901 et seq (military personnel); 28 U.S.C. 1330, l39l(f), l44l(d), 1602?11 (foreign sovereigns). Federal statute also grants all federal of?cers the right to move to federal court all litigation brought against them in connection with the execution of their of?ces. See 28 U.S.C. l442(a). In some cases involving noncitizen plaintiffs, a federal statute even permits federal of?cers (surely including the President) to remove to federal court suits that do not arise from their of?cial federal conduct. See 28 U.S.C. In short, Congress is not shy about exercising its authority to create immunities against state court legislation. But as the trial court pointed out, ?[e]ven after Clinton v. Jones, decided more than 20 years 8 28 U.S.C. 1442 creates special rights of removal in suits against federal of?cers. In this statute, Congress has authorized federal of?cers to remove to federal court all state court cases ?for or relating to any act under color of such of?ce,? 28 U.S.C. l442(a)(l), as well as lawsuits brought by noncitizens against federal of?cers in the courts of states other than the defendant?s own state, regardless of whether the cases implicate of?cial conduct, 28 U.S.C. l442(b). The President has no need of the right of removal granted in l442(a)(l), because he is categorically immune from suits arising from his of?cial actions. Nixon, 457 US. at 749. The immunity granted in l442(b) attaches to the President as to all other federal of?cers, but it has no applicability in a case like the current one, in which the plaintiff is a US. citizen and the state in which the President is sued is the President?s own home state. 23 ago, Congress has not suspended proceedings against the President of the United Trial Court Op. at 13-14. If state court litigation by US. 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. Alternatively, Congress could 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 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 As the trial court held, no one in our nation is above the law. In Jones, the Supreme Court unanimously held that sitting Presidents are not immune from civil lawsuits in federal court for their unof?cial acts. There is no reason grounded in Supreme Court precedent, the Constitution, public policy, or logic to reach a different conclusion with respect to suits brought in state courts against sitting Presidents based on their unof?cial conduct. This Court should uphold the trial court?s decision and allow the trial court to adjudicate the claims against appellant. 24 Dated: New York, New York August 8, 2018 Douglas Hallward-Driemeier ROPES GRAY LLP 2099 Avenue, NW Washington, DC 20006-6807 Telephone: (202) 5 08-4600 Of Counsel to Amici Curiae Law Professors Justin G. Florence Larry Schwartztol The Protect Democracy Project 2020 Ave. NW, #163 Washington, DC 20006 Telephone: (2 02) 85 6-9191 Of Counsel to Amicz' Curiae Law Professors 25 ROPES GRAY LLP By: Zak? Robert S. Fischler Patrick J. Reinikainen Elizabeth Bierut Nicholas C. Spar 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 A?iliation provided for identi?cation purposes only 625 S. State St., Ann Arbor, MI 48109 Telephone: (734) 647-5543 Of Counsel to Amici Curiae Law Professors APPENDIX A List of Amici Curiae Law Professors (Af?liations provided for identi?cation purposes only.) 1. Stephen B. Burbank is the David Berger Professor for the Administration of Justice at the University of Law School. He is a recognized expert in the ?elds 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 a Professor of Government Law at the University of Texas at Law School. He is an expert in constitutional law.