There’s been some opining about the legal risks the Eejit faces as a result of the Summer Zervos ruling, but there’s a risk that I haven’t seen discussed. Consider this:
[New York Supreme Court Judge Jennifer Schecter’s] ruling cites the 1997 Clinton vs. Jones sexual harassment lawsuit, in which the US Supreme Court held that a sitting president is not immune from being sued in federal court for unofficial acts.
That case left open the question of whether "concerns of federalism and comity compel a different conclusion for suits brought in state court." Schecter ruled such concerns do not prevent this case from moving forward.
"No one is above the law," she wrote. "It is settled that the President of the United States has no immunity and is 'subject to the laws' for purely private acts."
Schecter ruled, correctly in my (IANAL) view, that those concerns do not compel a different conclusion in this case. Yes, the SCOTUS left itself an out in the Paula Jones case; but the ruling itself was unanimous, and a ruling to the contrary would need a compelling set of facts to see this case differently. Schecter did not see facts that would support a different ruling; on federalism or comity grounds, I don’t either. Comity in particular would lead one to accept Schecter’s ruling, and I would think federalism would only come into play if a federal law preempted a state statute. DKos lawyers, feel free to weigh in here.
That makes Marc Kasowitz’s decision to appeal to the SCOTUS a dangerous roll of the dice for his client. If the Supremes agree with Schecter, Kasowitz has opened up his client to actions in state court that would not be postponed by dint of the Eejit’s current job. The media has been focused on the possibility that other women will come forward; but the real risk Kasowitz is opening is that other state actions can move forward during this Presidency: in particular, criminal or civil actions by Eric Schneiderman. Without a SCOTUS ruling on this case, such actions might be postponed; with one against Kasowitz’s client, the floodgates open.
I leave you with the only discordant note in the Paula Jones case: that of Justice Stephen Breyer.
This case is a private action for civil damages in which, as the District Court here found, it is possible to preserve evidence and in which later payment of interest can compensate for delay. The District Court in this case determined that the Constitution required the postponement of trial during the sitting President's term. It may well be that the trial of this case cannot take place without significantly interfering with the President's ability to carry out his official duties. Yet, I agree with the majority that there is no automatic temporary immunity and that the President should have to provide the District Court with a reasoned explanation of why the immunity is needed; and I also agree that, in the absence of that explanation, the court's postponement of the trial date was premature. For those reasons, I concur in the result.
Emphasis mine. Since the duties of this Pr*sident allow significant time for golfing and tweeting, IMHO Justice Breyer’s concerns are likely allayed. As I said back in August, my thanks go out to Paula Jones, the Rutherford Institute and Kenneth Starr.