Donald Trump, Ex-'Apprentice' Contestant Square Off in Consequential Legal Showdown

Donald Trump Getty 2017 - H
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From Thomas Jefferson to Jerry Seinfeld, Donald Trump's attorney on Tuesday invoked the giants of American jurisprudence in an effort to save the sitting U.S. president from having to appear in state court to face a defamation complaint.

Trump is being sued by season-five Apprentice contestant Summer Zervos, who alleges being forcibly kissed twice in 2007 and attacked in a hotel room. She's suing Trump for brandishing her a liar when a few weeks before election, Zervos came forward to tell American voters about her alleged victimization. In reaction to Zervos and other women, Trump described these groping tales as "100 percent fabricated and made-up charges, pushed strongly by the media and the Clinton campaign."

Trump is arguing that the Supremacy Clause of the U.S. Constitution immunizes the president from being sued in state court while in office. He's further contending that he can't be held liable for engaging in political speech in the context of a public debate thanks to the First Amendment.

On Tuesday, those theories were put to New York Supreme Court Judge Jennifer Schecter, who presided over an oral hearing and will soon be ruling on Trump's motion to dismiss.

Tuesday's hearing will likely not be the last to address the Supremacy issue. And if the case eventually gets to the U.S. Supreme Court — and there's a more than decent shot this consequential showdown will — it will be a sequel to Clinton v. Jones, where the high court ruled that a sitting president can't escape private litigation. However, in a footnote in that decision concerning Paula Jones' lawsuit against then-President Bill Clinton, Justice John Paul Stevens noted in passing that the Supremacy Clause could implicate concerns through "any direct control by a state court over the President."

Trump's attorney Marc Kasowitz believes this dicta is squarely on point, but he opened up his remarks by addressing one conception about his arguments.

"The motion today has nothing to do with putting anyone above the law," he told the judge.

Kasowitz had to admit upon Schecter's questioning that there has never been a court case that truly has settled whether sitting U.S. presidents must face claims in state courts, but added that the president "is a unique individual in the executive branch" and that the "mere assertion of jurisdiction amounts to control."

But in a surprising allowance, Kasowitz acknowledged that Zervos case could have been removed to federal court with proceedings there but for the mere $3,000 being alleged by Zervos in damages. (The threshold for federal court is $75,000, and in opposition arguments, Zervos' attorney said they'd meet that minimum when compensatory damages are factored.) The reason for allowing a federal court to handle the case, continued Kasowitz, is that the federal judiciary is a "co-equal branch," with Article III power to actually make rulings upon the country's chief executive. He added that it didn't matter that the controversy at issue merely impacts Trump's unofficial duties in office.

Mariann Wang, appearing at the hearing on behalf of Zervos, told the judge that Kasowitz "is making creative arguments out of a footnote."

She thinks a New York state court is the perfect venue to hear a defamation claim against a "born and bred New Yorker," and stressed the overall holding in Clinton v. Jones as establishing that presidents can't claim immunity. To even pause the case during Trump's time in office, Wang added, would cause her client to experience prejudice since memories lapse and documents may not be preserved. She doesn't think the judge would be exerting any control over Trump by moving the case forward.

"What if the President didn't follow my orders?" asked Schecter.

Wang admitted it was an excellent question and didn't exactly answer it directly. What the attorney did promise, however, was to work with opposing counsel to accommodate Trump however possible.

"We can certainly ensure that we take a deposition down at Mar-a-Lago in between his playing golf," she said.

Zervos' attorney also addressed the issue of whether the president's comments really did rise to defamation. Wang said that the proposition that Zervos came forward for 15 minutes of fame was "provably false," and that statements how Zervos was making things up were accompanied by Zervos' picture, meaning it would meet the "of and concerning" prong of a defamation claim. And as far as that other defamation case from Cheryl Jacobus that Trump recently beat, Wang described the other proceeding (currently on appeal) as "very different," covering rhetoric that only referenced a point of fact and something concerning a political analyst who was on television to speak about Trump.

Near the end of the hearing, Kasowitz came back to this subject.

Trump's attorney described Zervos' story about a Trump sexual assault as "pure political speech," pointing out that the tale of groping covered something that allegedly happened a decade ago with Zervos coming forward three weeks before the election so that the public could make a determination about his fitness for office.

Kasowitz then brought up a controversial issue in defamation law — whether denials of allegations can rise to defamation. He cited an old case concerning Jerry Seinfeld to argue they couldn't. (Seinfeld beat a libel claim for denying his wife had plagiarized a cookbook.)

If the judge does exert jurisdiction, Kasowitz wants Schecter to toss Zervos' lawsuit. But the mechanism he suggested for doing so is noteworthy.

Kasowitz asked the judge to strike the complaint pursuant to California's anti-SLAPP statute, a law aimed at preventing the purposeful chilling of First Amendment protected rights by giving defendants an early opportunity to test the merits of a claim. Trump's lawyer calls the anti-SLAPP statute "good law." He wants the judge to apply it in favor of the guy who once promised to open up libel laws to make it easier to sue the press.