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Opinion Potent legal claims throw Trump on the defensive

Summer Zervos, a former contestant on “The Apprentice,” said Jan. 17, 2017, that she had filed a defamation lawsuit against President Trump. (Video: Reuters)

“No one is above the law.” That admonition came from neither the special counsel nor a member of Congress. It did not come in the context of impeachment, or of potential criminal liability. Rather, it was the opening line of a court’s analysis from its ruling on a civil defamation suit brought by Summer Zervos.

The Post reports:

A New York judge said Tuesday that a defamation lawsuit against President Trump related to an allegation that he sexually harassed a former “Apprentice” contestant may go forward.
Summer Zervos filed the suit last year after Trump said publicly that she and other women making similar claims made them up. Trump sought to block the legal action, but New York Supreme Court Judge Jennifer G. Schecter, citing court precedent that led to the impeachment of President Bill Clinton in 1998, said that “a sitting president is not immune from being sued in federal court for unofficial acts.”

The court wrote: “In holding that the doctrine of separation of powers did not mandate a stay of all private actions against the President, the Court [in the Paula Jones case] flatly rejected that ‘interactions between the Judicial Branch and the Executive, even quite burdensome interactions, necessarily rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions.”

While the Jones case was in federal court, the court that heard Zervos’s suit found, “The rule is no different for suits commenced in state court related to the President’s unofficial conduct. 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. . . . There is no possibility that a state court will compel the President to take any official action or that it will compel the President to refrain from taking any official action.”

Interestingly, Protect Democracy, which has been bird-dogging Trump on a variety of executive power grabs, filed an amicus brief that argued: “No one in our nation is above the law, not even the President. The Supreme Court has accordingly held that the Constitution does not immunize the President against civil suits based on conduct that is wholly unrelated to the President’s execution of his office. . . . In Jones, the Supreme Court unanimously held that sitting Presidents are not immune from civil lawsuits in federal court for their unofficial acts. There is no reason grounded in Supreme Court precedent, the Constitution, public policy, or logic not to reach the same conclusion with respect to parallel suits brought in state courts.” The New York court agreed, even using the same “no one is above the law” formulation.

Moreover, the court in the Zervos case strongly hinted that this claim not only survives a motion to dismiss but also is a factual matter that only a trier of fact can decide:

Defendant — the only person other than plaintiff who knows what happened between the two of them — repeatedly accused plaintiff of dishonesty not just in his opinion but as a matter of fact. He not only averred that plaintiff told “phony stories” and issued statements that were “totally false” and “fiction,” he insisted that the events “never happened” and that the allegations were “100% false [and] made up.” A reader or listener, cognizant that defendant knows exactly what transpired, could reasonably believe what defendant’s statements convey: that plaintiff is contemptible because she “fabricated” events for personal gain.

In other words, Trump will likely need to sit for a deposition, during which he will no doubt be asked about all his alleged affairs — or will be compelled to settle the case for a pretty penny, given Zervos’s exceptional leverage.

The ruling comes as another woman who claims she had a sexual relationship with Trump, adult-film star Stormy Daniels (whose real name is Stephanie Clifford), is making headlines for her effort to invalidate a nondisclosure agreement contained in her $130,000 settlement, which Trump’s personal lawyer Michael Cohen has claimed he was never reimbursed for. (Apparently conceding that the president was a party to the deal, Trump company lawyer Jill A. Martin is now litigating against Daniels.) That payment is now under scrutiny by the Federal Election Commission.

To top that one off, the Wall Street Journal reported on a polygraph test (which is not admissible in most jurisdictions) that indicated Daniels was telling the truth about an affair with Trump:

Reporter Jordi Lippe-McGraw said she interviewed [Daniels] and recorded her discussing alleged encounters with Mr. Trump, starting with dinner and sex at his hotel room after they met at a celebrity golf tournament in Lake Tahoe in 2006, according to a transcript published by Bauer. Lie-detector tests supported the accounts of [Daniels], her ex-husband Michael Mosny and [Greg] Deuschle, according to reports reviewed by the Journal.

On Tuesday, yet another woman alleging that she had an affair with Trump, Karen McDougal, filed suit to invalidate her nondisclosure agreement. In this case, she is suing the National Enquirer, whose parent company’s chief executive, David J. Pecker, is a friend of Trump’s. McDougal claims Michael Cohen was behind this deal as well, which fits a pattern of buying and squelching negative stories about Pecker’s pal.

We’re not quite done. Acting on the reporting of my colleague Ruth Marcus that Trump has been imposing his infamous nondisclosure agreements on senior White House staff, Rep. Jerrold Nadler (N.Y.), the ranking Democrat on the House Judiciary Committee, and Rep. Elijah E. Cummings (Md.), the ranking Democrat on the House Oversight Committee, sent a letter to White House Chief of Staff John F. Kelly asking for the nondisclosure agreements to be turned over to Congress. The Democrats state, “These confidentiality agreements could discourage White House employees from cooperating with the ongoing investigation by Special Counsel [Robert S. Mueller III].  The agreements could chill employees from disclosing violations of law, waste, fraud, and abuse to Congress. The agreements may also be inconsistent with the First Amendment to the Constitution and in violation of other federal laws, including the Consolidated Appropriations Act.” Congress should get these and then determine who drafted and directed employees to sign documents that are obviously in contravention of their First Amendment rights.

So where are we? Trump is now ensnared in two lawsuits involving two alleged sexual partners with whom he has denied involvement. If they get their day in court, Trump may be exposed as a liar, and someone against whom blackmail would be a very effective tool. It is highly unlikely that even legal verdicts will change the minds of his most devoted followers, but it sure will make it uncomfortable for those evangelical leaders to hand out more “mulligans.”

Adverse judgment also will add to the woes of Republican incumbents who have turned a blind eye toward the president’s conduct. With revelation of the nondisclosure agreements, still more legal fronts may open up — for example, former advisers could choose to challenge them; or a House majority could add the abusive practice of muzzling public employees to a list of actions in potential articles of impeachment.

No wonder the president is acting more unhinged than usual. His legal problems are multiplying, and his legal adversaries are starting to do real damage. At this point, Trump might have figured out that “no one is above the law” applies even to him.