OPINION:
Lawyers representing President Trump have been pilloried in the media for asking the Supreme Court to review the larger E. Jean Carroll defamation judgment, totaling $83.3 million.
Of course, no law firm must represent the president, but no lawyer or law firm should be treated as somehow “unethical” for doing so.
American Bar Association Rule 1.2 makes that point clear: “b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”
Mr. Trump’s attorneys, led by one of New York City’s top litigators, Robert Giuffra, have asked the court to review the defamation judgment. This petition for certiorari should be granted.
One question raised in this petition is whether a president can waive presidential immunity without expressly saying so, solely because his first responsive pleading in a case did not invoke presidential immunity by name. It is a strict approach to waiver that the court already refuses to apply to a member of Congress.
Still, the most important question that Mr. Trump asks the court to review is whether his statements from the White House in response to press questions about Ms. Carroll’s allegations were made in a personal or official capacity.
If the statements were made in the president’s personal capacity, he can be sued, but if he was speaking in his official capacity, the judgment fails. Why? Because in 1982, in Nixon v. Fitzgerald, the court held that a president cannot be sued for damages arising from conduct in his official capacity.
So which is it in the Carroll case? Reasonable minds can differ.
The president was clearly trying to defend his reputation in response to questions by the White House press corps, and a president’s reputation is vital for the success of his presidency. Yet the subject about which Mr. Trump spoke was personal, namely an alleged sexual assault more than 20 years earlier.
Presidents are often accused of bad conduct. When one of them says anything about his private life to the White House press corps, is he always speaking in a personal capacity or an official capacity — or does the answer depend on the context? The Supreme Court must grant cert and answer that question.
Addressing this distinction is more important than ever after the Supreme Court’s 2024 landmark decision in Trump v. United States, which extended the president’s immunity for official acts to criminal lawsuits, going well beyond the civil immunity rule articulated in Nixon v. Fitzgerald.
When is conduct official and when is it personal? In her concurrence in Trump v. United States, Justice Amy Coney Barrett wanted the court to provide more explanation of that distinction, but the majority declined to do so.
The answer is not important just in this case; it is also important for any future president, White House staff and White House lawyer — a position I once held under President George W. Bush.
All lawyers should want the Supreme Court to answer such important questions, but many in the press and too many members of the bar have insisted that the court should deny review, mostly because they do not like Mr. Trump (I am also a critic of the president).
Worse, some lawyers have descended to the depths of professional defamation, accusing Mr. Trump’s attorneys of unethical conduct for agreeing to represent him and filing the cert petition in the case. That is wrong.
Many of us remember when President Clinton, at a White House news conference, said, “I did not have sexual relations with that woman.” Of course, “that woman” (Monica Lewinsky) never sued Mr. Clinton, and he was never criminally charged, so courts did not address the question of personal capacity versus official capacity conduct of the president.
In a lawsuit brought by another woman, Paula Jones, Mr. Clinton’s attorneys lost their absolute immunity claim in the Supreme Court, 9-0, but in a footnote, the court expressly refused to address the question squarely presented in Mr. Trump’s cert petition.
That is, whether presidential immunity protects a president from being sued for defamation when the alleged defamatory statements were made in response to press questions about allegations going to the president’s fitness for office.
Most important, nobody attacked the ethics of the lawyers who defended Mr. Clinton or suggested that they should not represent him or should leave their law firms because other clients did not want to be associated with the president.
Not only should Mr. Trump’s cert petition be granted, but his attorneys were right to take the case. We should want the best lawyers to represent presidents and other parties in the most important cases.
That has been our tradition since John Adams famously defended British soldiers after the Boston Massacre, and the rule of law depends on it.
• Richard W. Painter is a law professor at the University of Minnesota. He was associate counsel to the president and chief White House ethics attorney for President George W. Bush.
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