A defamation lawsuit filed by a former 'Apprentice' contestant could force Trump to testify and risk perjury – but right now it's stalled in state court.
Left: Donald Trump, photo by Olivier Douliery - Pool/Getty; Right: Summer Zervos, photo by by Frederick M. Brown/Getty
Summer Zervos had dreamed of working for the host of The Apprentice ever since being "fired" while a contestant on the show's fifth season. So when Donald Trump asked to meet up with her in December 2007 to discuss a potential job offer, the Orange County, California, native felt like her life was finally coming together. But much to Zervos's surprise, the man she thought of as a mentor greeted her that afternoon with a kiss on the mouth. Though she thought it was weird, her parents eventually convinced her that must be the way the eccentric businessman acted with everyone. With that in mind, Zervos agreed to meet up with Trump at a Beverly Hills Hotel soon after to keep pressing for a contract.
According to a civil complaint filed more than a decade later, Trump had other plans that evening. He allegedly called out "Helllllooooo" in a singsong voice when Zervos entered the room, planted a kiss on the woman he called "OC Angel," pressed his genitals against her, and urged her to lie down and watch some "telly telly." Although Zervos claims she managed to refuse the future president's advances by coaxing him into ordering a club sandwich and some fries for dinner, she also says that he became frosty after she rejected his advances and gave her financial advice to the effect that she should stop making her mortgage payments.
"Like so many women who have suffered this kind of sexual abuse, Ms. Zervos felt conflicted and confused for years about the incidents," the complaint reads, noting that after the incident she still thought of Trump as a role model. She assumed that his behavior with her was an aberration.
But once the infamous "grab them by the pussy" audio leaked in October 2016, Zervos came to the conclusion that she wasn't the only one who had been treated as she had by Trump. She got angrier when Trump was asked about his remarks during a presidential debate and told what the complaint calls a "boldface lie" when he denied ever doing anything like what he had bragged about to Billy Bush.
She spoke out on October 14, reading a statement to reporters while flanked by lawyer Gloria Allred that described her encounters with Trump. That began a very public feud with the candidate over what happened that night in Beverly Hills. Trump denounced her and his other accusers on Twitter and at rallies, and his campaign found a cousin of Zervos's who said that she had been a fan of his and was making up the charges in order to get attention.
Zervos wasn't the only one to call out Trump—in total, nearly a dozen women accused Trump of some kind of sexual harassment in alleged incidents that stretched back over years and even decades. It was the sort of scandal that would have defeated an ordinary candidate in an ordinary election year. But 2016 was far from ordinary. Enough voters believed Trump over Zervos and the other women—or simply didn't care about their accusations—that the real estate mogul and reality star won.
After the election, Allred, a high-profile feminist activist and die-hard Hillary Clinton supporter, found herself at a loss for how to console the young women who admired her, according to a recent New Yorker profile of the lawyer. Not knowing what to say, she decided to act. Three days before Trump's inauguration, the two women filed a lawsuit against him and announced it at a press conference. They were suing Trump not for sexual harassment or assault but for defamation—the accusation is that Trump called Zervos a liar when he knew very well that she was telling the truth.
Suing the president of the United States is usually a totally pointless exercise, but Allred is used to challenging powerful men. The criminal case that Allred led against Bill Cosby revolutionized the way we talk about rape in America. That dialogue was reignited when the story of Harvey Weinstein's alleged (and extensive) misdeeds broke earlier this month. And with new allegations about the disgraced Hollywood mogul trickling out at a steady pace, a list of alleged sexual abusers in media making the rounds among female journalists, and accusations against powerful figures extending into the music industry, the conversation about what constitutes consent—and what to do about men who use their status to abuse women—seems to be evolving by the day.
Despite the potential for the suit to one day force Trump to testify, there wasn't much coverage of the Zervos lawsuit in recent weeks before news broke that she had subpoenaed Trump's campaign for documents related to the sexual harassment accusations against him. That's likely because the case is currently stalled out in New York State court as a judge prepares to rule on whether Trump has immunity from all lawsuits as president. It could also be because it seems like an incredibly difficult lawsuit to win.
John Goldberg, a professor at Harvard Law School, told me that politicians' jobs often involve calling their opponents liars, making defamation charges tricky. "A suit by a losing opponent, for example, would be regarded as 'sour grapes,'" he says. "Likewise, a suit by a defeated rival, or any other official or candidate for office, might suggest that that person is unable to handle the rough and tumble of ordinary politics."
There have only been a handful of cases in which someone has sued an opponent based on statements made during a campaign—one of the most recent of which was a case in which a West Virginia schoolteacher who ran for governor in 1996 and after losing tried to sue the Republican National Committee for putting out a TV ad that claimed she wanted to expose kids to porn and condoms. She lost in a summary judgment because a court ruled in 2001 that "the statements at issue are not false."
Trump is no ordinary politician, and the woman suing him isn't involved in politics at all. Still, that hasn't stopped the president's attorney, Marc Kasowitz, from arguing in his motion to dismiss that when his client called Zervos a liar in tweets and at rallies, he was doing so as part of a "fiery" and hyperbolic campaign rhetoric typical of candidates trying to win an election.
The Supreme Court has already ruled that the only time a president can't be sued is when the lawsuit concerns matters related to his official duties. When a former contractor at the Department of Defense sued Richard Nixon over his termination, the justices ruled that the suit could not go forward; when Paula Jones went after Bill Clinton for alleged sexual harassment that took place when he was governor of Arkansas, the court gave her the go-ahead, writing that the previous case "provides no support for an immunity for [a president's] unofficial conduct." (That Jones lawsuit, of course, led to Clinton perjurying himself and the Republican-dominated House of Representatives impeaching him over it.)
In September, three law professors submitted briefs detailing why they thought Zervos's case should go forward. Trump's lawyer now has until October 31 to respond, after which the judge will either rule on the issue of immunity definitively or call for oral arguments about it. If the suit is allowed to proceed, Trump's lawyer will likely do whatever he can to push for dismissal or further delay—presumably pointing out the fact that the Clinton case that made it to the Supreme Court didn't decide whether a state court, as opposed to a federal court, could be a venue for such a lawsuit. In fact, a footnote in Clinton v. Jones emphasized that was still up for further debate.
But even if questions of immunity, hyperbole, and the appropriate venue in which to sue the president are all settled, the case still might be put on a shelf for years.
"The individual trial judge presiding over such a suit still has discretion to delay the suit to ensure that the president gets a fair trial, to protect the public interest, etc., and thus might well decide to postpone it until after the president is out of office," Goldberg told me.
The last complicating factor comes down to whether Zervos is considered a public figure. If that's the case, her lawyer has to prove that Trump made his statements with "actual malice," which is to say entertained serious doubts about the truthfulness of the statements he made.
"Zervos was on The Apprentice, so there could be an argument that she was a public figure and might have to satisfy this heightened standard," said Alex Long, a law professor at the University of Tennessee.
Although it's truly arguable that being on a single Apprentice episode will be enough to qualify her as such, the law considers people public figures if they thrust themselves in the center of public controversies—and what is a suit threatening to take down the president if not that?
The distinction between public and private figures is important, because if she's deemed the former, the case will become even more complicated than it already is. Even if Trump and Zervos agree that the same events took place between them, Zervos could consider them sexual misconduct while Trump might not. The behavior described in Zervos's complaint probably wouldn't have raised red flags just a few decades ago, but thanks in a large part to people like Allred, our definition of that behavior has been expanded. But how, then, could it be proven that Trump knew he had committed misconduct or harassment and then purposefully lied about it? After all, his most specific claim refuting Zervos's story is that he never greeted her "inappropriately" at the hotel.
"I could see a court perhaps saying that this is a statement of opinion and isn't susceptible of proof—how do you prove what qualifies as an 'appropriate greeting?' said Long. "[There] is some logical stopping point to this. No one would say that punching someone in the face is an appropriate greeting. But the fact that the statement involves an adjective like 'appropriate' pushes the statement closer to be an opinion."
Although Zervos has said that she would forgo financial compensation for an apology and an admission of guilt from Trump, Allred's New Yorker profile hinted that the lawyer's goal is getting Trump under oath as a way to trigger impeachment proceedings. The thinking—which was outlined in the book The Case for Impeachment by Allan Lichtman—is that if Trump's deposed, he'll be unable to tell the truth for a sustained period of time. And perjury could provide a vehicle for Congress to impeach him a la Clinton, leading to his removal if the votes in Congress line up.
Allred—who changed the way we think about sexual assault with the Cosby trial, even if she didn't win in court—is acutely aware that sometimes the biggest triumphs don't come in the form of a verdict, a settlement, or even an admission of guilt. At the end of the day, if she's given the chance to get Trump on the stand, that could be her crowning achievement.
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