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It just got easier to sue Donald Trump

A New York State Supreme Court judge finally green-lit Summer Zervos' defamation case against the president.

by Christina Sterbenz
Mar 20 2018, 9:13pm

When Summer Zervos, a former contestant on “The Apprentice,” arrived at the Beverly Hills Hotel one night in 2007, one of Donald Trump’s security guards immediately escorted her to his room. That’s where Trump forced himself on her and groped her, according to a lawsuit she filed against him.

“Come on, man. Get real,” Zervos said before shoving Trump away, according to the suit.

Zervos, one of 19 women who have accused the president of sexual assault, went public with her allegations a few weeks before the 2016 election. And when Trump called her a liar, she sued him for defamation in New York. Ever since, Trump’s lawyers have tried to argue that Zervos can’t sue Trump in state court. It's a novel defense that would expand the legal immunity already granted to the office of the president.

After months of consideration, a New York State Supreme Court justice finally ruled on Tuesday that Zervos’ defamation case can move forward, opening the door for more lawsuits against the president of the United States. Trump himself could even be deposed in the case — which Zervos’ attorney offered to do in-between rounds on the Mar-a-Lago golf course. That would make Trump only the second president to testify on his own behalf in court, after Bill Clinton.

“No one is above the law,” Justice Jennifer Shecter wrote in her decision, the first of its kind, on Tuesday.

Zervos, however, has said she’d retract her lawsuit if the president would simply admit what he did.

Trump’s defense

After Zervos accused the president of sexual assault, the rumors started flying. Some said she was capitalizing on the momentum of the infamous “grab ‘em by the pussy” tape, which came out just a week earlier. A fake news article even surfaced accusing Zervos of making up the story in exchange for half a million dollars from her power lawyer, Gloria Allred.

At some point, however, Trump’s longtime attorney Marc Kasowitz needed a defense against Zervos’ claims. And he came up with a so-far unused argument: that a sitting president can’t be sued in state court.

“The motion today has nothing to do with putting anyone above the law”

“The motion today has nothing to do with putting anyone above the law,” Kasowitz argued in the New York State Supreme Court on Dec. 5. “A state court may not exercise jurisdiction over the president of the United States while he or she is in office.”

The Supreme Court never ruled that a president couldn’t be sued in state court, but the justices never said he could be, either — and they were a bit concerned about how a trial could affect the executive branch.

The $24 sandwich and fries

The Supreme Court ruled in 1968 that no one can sue the president for what he does as part of his role in the White House; the office has what the justices called “absolute immunity.” Nearly two decades later, when Paula Jones sued President Bill Clinton for sexual harassment, she argued that the alleged crime took place before he was president.

Jones said that Clinton propositioned her and exposed himself to her at his hotel room in Little Rock, Arkansas, when he was still the state’s governor in 1991. The case, however, was dismissed, largely because testimony didn’t back up Jones’ story. She claimed, for example, that Clinton had a distinguishing mark on his penis, but doctors said he didn’t.

For her part, Zervos claims to have known what Trump ordered in his hotel room that night: a $24 club sandwich and fries. Trump even complained about the price and made sure the hotel employee who delivered his meal didn’t see Zervos, according to the lawsuit. That room service receipt will likely end up as evidence.

Back in 1991, Clinton’s lawyers argued that the concept of “absolute immunity” should apply to Jones’ case as well, lest the president be distracted with lawsuit after lawsuit while he’s trying to run the country. But the Supreme Court unanimously decided that lawsuits unrelated to the president’s official actions can proceed.

Jones, however, had sued Clinton in federal court. While the justices didn’t rule out suing the president in state court, they noted in a single footnote that they might have ruled differently in that case.

“It’s a question of federalism — the states interfering with the president’s ability to do his job,” Adam Winkler, a professor of constitutional law at the University of California at Los Angeles School of Law, told VICE News.

But that sentiment went largely ignored until Trump's attorney, Kasowitz, resurrected it to defend the president against Zervos’ suit. If not dismissed, he argued in court on Dec. 5, the lawsuit should at least be delayed until Trump leaves office.

In three, or maybe seven years, however, witnesses could forget and evidence could be destroyed, Allred responded. As part of the suit, Zervos is seeking all documents from Trump’s campaign that deal with any women who have alleged Trump touched them without permission.

Trump also doesn’t “do his job 24 hours a day, seven days a week,” Allred said. “We can take a deposition down to Mar-a-Lago in-between him going to play golf.”

How to sue the president

“Nothing in the Supremacy Clause of the United States Constitution even suggests that the president cannot be called to account before a state court for wrongful conduct that bears no relationship to any federal executive responsibility,” Justice Schecter wrote in her Tuesday decision.

Under her landmark ruling, private citizens now have a precedent to turn to if they want to sue the president in state court, which can hear millions of cases each year and requires less-burdensome standing than federal court. A higher court, however, could still overturn the decision.

To bring a lawsuit in federal court, people have to meet two requirements. First, they can’t live in the same state as any of the other plaintiffs. (Zervos lives in California.) Second, the amount of damages they’re seeking must exceed $75,000. Neither of those apply in state court.

“This is not a serious obstacle in most cases, although it obviously prevents a plaintiff from suing in federal court someone from the same state,” said University of Pennsylvania Law School professor Stephen Burbank, who wrote an amicus brief in support of Zervos, along with two other law professors.

Zervos, however, is only seeking $2,914 in damages. If Justice Schecter had denied her case, she wouldn’t have been able to sue Trump in federal court.

A ruling against Zervos also could have prevented many of Trump’s former employees at Trump Tower and his D.C. hotel from bringing any lawsuits against him, since they live in the same state. Trump has already faced several since taking office, including one from Iron Chef Geoffrey Zakarian.

Cover image: President Donald Trump, and Summer Zervos, a former contestant on "The Apprentice," right. (AP Photos/Pablo Martinez Monsivais, left, and Ringo H.W. Chiu, Files)

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