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Donald Trump is looking to end a defamation lawsuit brought by season-five Apprentice contestant Summer Zervos — or at least delay it until he leaves office.
The dispute arose after tape was published of Trump boasting to Access Hollywood‘s Billy Bush about grabbing women’s genitals. As Trump was under fire for his comments, Zervos came forward to accuse him of kissing her twice in 2007 and attacking her in a hotel room. “I never met her at a hotel,” responded Trump, who would also attack allegations from his accusers as “100 percent fabricated and made-up charges, pushed strongly by the media and the Clinton campaign.”
Zervos claims she’s been branded as a liar, and while she’s only seeking $2,914 in actual damages (though potentially more in punitive damages), her attorney, Gloria Allred, has expressed that she is looking forward to taking “far-reaching” depositions and asking “many questions he may not wish to answer, but will be required to answer.”
On Friday, Trump’s attorney, Marc Kasowitz, seized on various comments from Allred to present the action as “politically motivated.”
“Ms. Zervos and her counsel have openly conceded — indeed, bragged — that their true motivation is to use this action for political purposes as a pretext to obtain broad discovery that they hoped could be used in impeachment hearings to distract from the President’s agenda,” states the motion (read in full here).
Trump asserts that the U.S. Constitution forbids this case from proceeding at this juncture. The argument is pinned to the Supremacy Clause, which Kasowitz interprets as meaning “that state governments, including their courts, refrain from interfering in the operations of the federal government.”
Clinton v. Jones, a 1997 U.S. Supreme Court opinion, determined that presidents aren’t immune from civil actions, but Trump here is attempting to argue that what distinguishes that case is that it took place in federal court. Zervos‘ suit, by contrast, is proceeding in New York state court.
If that argument doesn’t work, Trump looks to protect himself using more common defensive tactics for a defamation lawsuit. The president has, in the past, advocated the loosening of libel laws, but he’s presently pointing to the First Amendment for protection.
“The allegedly defamatory statements were made during a national political campaign that involved heated public debate in political forums,” writes Kasowitz. “Statements made in that context are properly viewed by courts as part of the expected fiery rhetoric, hyperbole, and opinion that is squarely protected by the First Amendment.”
The court papers also present objectionable statements, claiming the comments were “nothing more than heated campaign rhetoric designed to persuade the public audience that Mr. Trump should be elected president irrespective of what the media and his opponents had claimed over his 18-month campaign.”
Elsewhere in the brief, Trump’s attorney comes forward with the contention that since Zervos “intentionally solicited” a response to “her political rhetoric,” that also serves as a basis for dismissal. Separately, Trump disclaims responsibility for his retweets of others’ postings, arguing that either he’s not the publisher or that he deserves immunity via Section 230 of the Communications Decency Act.
Trump is also denying Zervos‘ allegations of assault. The truth or falsity of allegations isn’t something that judges weigh at the early stage of litigation (a judge has to accept pleadings as true on a motion to dismiss), but nevertheless, with perhaps some consciousness of how widely the court papers will be read, Kasowitz inserts a section aimed at introducing alternative facts. He points to comments from Zervos‘ cousin, as well as alleged interactions between Zervos and Trump.
“For instance, she continued to seek employment from President Trump for several years, even after their purported encounter because ‘her dream of working for Mr. Trump might come true,'” states the motion. “In April 2016 — a mere six months before she made her unfounded public accusations — she contacted President Trump to invite him to her restaurant. It was only after President Trump rejected her invitation that she turned against him, levying her false accusations. As Ms. Zervos’ own cousin opined as to why she was making these untrue statements, ‘I think Summer wishes she could still be on reality TV.'”
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