Government

Character And Fitness For The Presidency -- Even POTUS Is Accountable For Personal Bad Conduct

Perhaps it is a good thing that, at least for now, a president cannot avoid a lawsuit for misdeeds that have nothing to do with the duties of the office.

By Christine A. Rodriguez  
on

(Photo by Drew Angerer/Getty Images)

Lawsuits against Trump have dominated a good portion of the news cycle this week. This past Tuesday, New York County Supreme Court Justice Jennifer G. Schecter ruled that a defamation lawsuit filed by a former “Apprentice” contestant against Trump could proceed despite his lawyers’ argument (among others) that as president, Trump is immune from civil suits filed in state courts while in office. Zervos v. Trump, New York County Supreme Court, Index Number 150522/2017.

Although the Supreme Court precedent that Justice Schecter relied on in her decision does not address this issue directly, the 20-year-old SCOTUS decision in Clinton v. Jones, 520 US 681 (1997), is clear on the issue that no president is entitled to immunity from liability for actions that have nothing to do with the job of Chief Executive of the United States. If you have read or heard any of the news stories this week about the ruling, then you have heard the mantra, “No one is above the law.” There is no doubt that Justice Schecter’s ruling in the Zervos case will be appealed in New York, particularly since Mark Kasowitz has already proclaimed that an appeal will be filed. If the case makes it to New York’s Court of Appeals and is still not resolved, it could eventually be litigated in the United States Supreme Court. Of course, Trump could be out of office by then and the issue of his immunity while in office would be moot.

It is worth noting that while Trump’s lawyers are trying to block a defamation suit against him in New York, arguing in part that the demands of the presidency are such that Trump simply does not have time to deal with a civil suit while in office, they have not yet made such a claim to stop the suit filed by Stormy Daniels. That suit seeks to void a nondisclosure agreement that was meant to prevent Stormy Daniels from discussing her past affair with Trump. If one of Trump’s (or more likely, his lawyers’) legal goals is to stop any litigation that exposes him to the possibility that he might be required to testify under oath, then we may yet see a motion in the future. The Zervos case, however, makes it unlikely that Stormy’s case will be stopped by that motion either, at least not in the immediate future.

The question of whether civil suits against the president for unofficial acts before he took office can go forward raises other questions about how we evaluate the person who holds the highest office in the nation. All lawyers must go through a character and fitness examination before they are admitted to the bar in their chosen state. The information required by most states’ board of bar examiners is extensive, comprehensive, and even intrusive. The pile of accusations of past sexual misconduct and lawsuits currently pending against Trump would likely disqualify him from admission to many states’ bars. Allegations of sexual misconduct, domestic violence, and financial impropriety have resulted in denied security clearances, resignations, firings, and even indictments of other people on Trump’s campaign team and in Trump’s cabinet. Every person Trump has blasted in the FBI, the DOJ, and the judiciary had to go through extensive background checks. Even a hint of what Trump now faces in civil actions would derail the career of any of those people.

The difference between the rest of us and the person holding the Office of the President is that we do not get chosen in our profession by the popularity contest commonly known as a presidential election. For better or worse, the public (or really the electoral college on their behalf) chooses the Commander in Chief. That process does not include a character and fitness examination beyond the opinion of the public. One of the most important reasons why lawyers, political appointees, people who get security clearance for classified information, and people in law enforcement have to pass certain character and fitness standards to hold their positions is because they cannot be vulnerable to influence or blackmail.

The same should be true for our president. Unfortunately, there is no character and fitness examination for the president before he or she takes office. So perhaps it is a good thing that, at least for now, a president cannot avoid a lawsuit for misdeeds that have nothing to do with the duties of the office. Those lawsuits may be the character and fitness examination that sheds light on personal bad conduct for which the person who holds the Office of the President should be held accountable. If that conduct makes that person vulnerable to influence, blackmail, or just plain unfit, a civil suit may be the only way it comes to light.

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Christine A. Rodriguez is of counsel to the firm Balestriere Fariello and successfully represents individuals and small businesses in all manner of employment discrimination, civil rights, criminal defense, civil litigation and commercial litigation matters. She also advises small businesses on all aspects of legal matters from contract to employee issues. You can reach her by email at christine. a. rodriguez@balestrierefariello. com.

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