Wednesday, February 15, 2017

Essay III

Zervos v. Trump

A Complaint was filed in Zervos v. Trump. (For purposes of this problem, treat the action as having been filed in Federal District Court and being governed by the Federal Rules of Civil Procedure).

You are counsel for President Trump. You believe he has a meritorious defense of “Presidential Temporal Immunity,” which provides that a “sitting President” cannot be made to litigate or defend a civil action while in office, even where the civil action arises from conduct that occurred prior to his presidency or is unrelated to his official presidential duties. The defense originates and is grounded in constitutional principles of separation of powers and the fact that the President wields the executive power under the Constitution. If the defense applies, the trial court must dismiss the action without prejudice, giving the plaintiff leave to refile when the President leaves office (any statute of limitations stops running during this period). It is not clear that the defense exists as a matter of substantive constitutional law; it has never been established by the Supreme Court of the United States, but there is room for legal argument on the issue.

As counsel for the President, discuss the different procedural mechanisms and strategies through which you could raise this defense and get the district court to immediately rule on it. Discuss which approaches will or will not work in this case and why.