One of the most striking things about Donald Trump’s tweet about changing libel laws Thursday is that it came just days after his lawyer argued that libel laws don’t apply to him as president.
Trump’s 7:27 a.m. tweet was meant as a criticism of the New York Times’s coverage of the ongoing federal investigation of ties between the Trump team and Russia, saying “The failing @nytimes has disgraced the media world. Gotten me wrong for two solid years. Change libel laws?
— Donald J. Trump (@realDonaldTrump) March 30, 2017
But just a few day earlier, his lawyer Marc Kasowitz argued in court papers filed in New York that Trump is immune from a libel lawsuit filed against him by former “Apprentice” contestant Summer Zervos. He argued that the Constitution creates a special protection for presidents sued by private citizens in state courts. He is not arguing that he cannot be sued at all; he says the lawsuit should be delayed until he leaves the presidency, which, if he wins a second term, would protect him until January 2025.
Gloria Allred, Zervos’ lawyer, argued that the Supreme Court has already ruled that a sitting president is “not above the law” and Trump cannot escape a civil lawsuit that challenges his private conduct. Zervos alleges in her lawsuit that “candidate Donald Trump called her a liar and unfairly and wrongfully maligned her during his campaign because she had alleged that he had sexually assaulted her,” Allred said.
Donald Trump generally likes libel lawsuits. He has filed seven in his lifetime (losing or settling six) and said as a candidate that he wants to “open up” libel laws to make news outlets easier to sue.
President Bill Clinton did not have much luck when he fought a civil lawsuit as president. Clinton was sued by Paula Jones, who accused him of sexual misconduct when he was governor of Arkansas. Clinton argued that the constitution’s Supremacy Clause protected him from any civil lawsuits brought against him by private citizens until he left the White House.
The U.S. Supreme Court rejected Clinton’s argument, saying that the constitution only bars civil lawsuits brought by private citizens challenging a president’s official acts. The court thought it unlikely that a sitting president would be dogged by numerous civil lawsuits challenging his conduct as a private citizen.
Trump is relying on an obscure passage from the Supreme Court’s decision, which said it was permitting the Jones lawsuit to proceed in part because it was in federal court. But the court noted that it was not sure Jones’ case would be allowed to proceed if it had been filed in state court. A federal court has co-equal power with the executive branch under the constitutional system of three co-equal branches of federal government, but a New York state court does not have that kind of equal power with the federal government.