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Trump presses immunity argument in Summer Zervos defamation case

Summer Zervos leaves a Manhattan court building after a December 2017 hearing.
Summer Zervos leaves a Manhattan court building after a December 2017 hearing. (Kathy Willens/AP)
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NEW YORK — Lawyers for President Trump this week reiterated their argument that a defamation lawsuit from a woman who alleges Trump groped and kissed her without consent should be halted because the president is immune from lawsuits filed in state courts while serving in office.

A new 28-page court brief, filed Monday and released publicly by the New York State Court of Appeals on Tuesday, is Trump’s latest salvo in a multi-front legal battle to limit the ability of private citizens, Congress and even law enforcement to investigate him as a sitting president.

The release came on the same day that Trump’s lawyers argued to the U.S. Supreme Court that the president should be able to shield his tax returns and private business records from subpoenas issued by Democratic-led House congressional committees and the Manhattan district attorney. They argued the president should be immune from requests he believed were political attempts to harass.

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The filing in New York was also a pointed reminder that Trump continues to quietly battle two women in court who allege he sexually assaulted them, fighting their efforts to obtain testimony and documents that could shed light on their accusations. The women, Summer Zervos and E. Jean Carroll, are among more than a dozen women who have accused Trump of unwanted physical contact in the years before he was elected.

Trump’s efforts to fend off their legal claims come as his allies have sought to spotlight allegations that his Democratic rival, former vice president Joe Biden, sexually assaulted a Senate aide in 1993, a claim he has denied.

Tim Murtaugh, a spokesman for the Trump campaign, declined to comment on the Zervos and Carroll cases.

This week’s filing came in a defamation case brought by Zervos, a former contestant on the reality show “The Apprentice,” who alleges that Trump aggressively groped and kissed her in a Los Angeles hotel room in 2007, at what she thought would be a meeting to discuss a job opportunity at the Trump Organization.

She first made the allegations in October 2016 after the release of the “Access Hollywood” tape in which Trump could be heard bragging about grabbing women between their legs.

Trump denied her claims, calling her and other women who accused him of sexual misconduct liars who are motivated by politics and money. In 2017, Zervos filed suit against the president, arguing that Trump defamed her by accusing her of lying about the episode.

Since then, the case has been slowly making its way through the New York court system. So far, lower-level state courts have rejected Trump’s immunity arguments and allowed evidence to be gathered.

New York appellate court allows Summer Zervos’s defamation suit against president to proceed

Phone records released as part of the case last year showed that Trump and Zervos exchanged six telephone calls over a three-month time period around the time when she said the assault took place, including on a day when Trump’s calendar showed he was visiting Los Angeles.

A judge had ordered that Trump be deposed in the case, and he had been scheduled to give sworn testimony about his interactions with the California restaurant owner by Jan. 31.

But the deposition was put on hold when a panel of New York judges agreed that Trump’s immunity argument should be heard by the state’s highest court, the New York Court of Appeals. Both sides have filed written briefs in advance of oral arguments before the court.

It is not expected to be heard until early 2021, although the coronavirus pandemic may delay proceedings even further, according to a spokesman for the court — meaning that the litigation is on hold until after the November election.

Arguments in the case have centered on the U.S. Supreme Court’s ruling in Clinton v. Jones, which found that a sitting president has no immunity against civil litigation. As a result, then-President Bill Clinton sat for testimony in a sexual harassment lawsuit filed by former Arkansas state employee Paula Jones.

The deposition later figured in Clinton’s impeachment after he lied in his sworn testimony about his relationship with a White House intern.

Trump’s lawyers have argued that the Clinton ruling should only apply to civil lawsuits filed in federal court, like the Jones case. They argue presidents should not face lawsuits from private individuals in state courts while in office, and so Zervos’s litigation should be either dismissed or put on hold until Trump leaves office.

In the latest filing, Trump attorney Marc Kasowitz argued that state judges can’t “exercise any control . . . over the President while he or she is in office.”

Trump has also been fighting a lawsuit brought by Carroll, a longtime advice columnist and author who last year accused Trump of raping her in the 1990s, which he has denied. The case is likewise in a holding pattern while a trial court judge in Manhattan determines how the Zervos case could affect it.

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Carroll sued Trump in 2019 after writing in her book “What Do We Need Men For?: A Modest Proposal” that she was raped by Trump in a dressing room at Bergdorf Goodman, a famous high-end Fifth Avenue department store, in 1995 or 1996.

Trump said that he’d never met Carroll, although they were photographed at the same event in the late 1980s.

In a statement to The Washington Post this month, Carroll said Trump had “damaged a reputation it took me decades of hard work to build.”

In addition to denying her claims, Trump had derided Carroll, now 76, as not his “type.”

“I have been mocked and doubted, harassed and threatened, and am now seen by many as some crazy old bat who is ‘not his type’ and who made up a story of rape in order to sell more books,” she said. “Every day that goes by with me unable to prove that I was telling the truth and that Donald Trump was not — is another day of waiting to obtain the justice that I deserve.”

Carroll’s lawyers have said the president’s lawyers have imposed delaying tactics from the start, writing in a February court filing that Trump “has done everything he can to stop the truth from ever coming out.”

The president sought a dismissal on jurisdictional grounds, arguing that he couldn’t be sued in New York because he is a resident of Florida, where his Mar-a-Lago residence was declared his official home.

Carroll’s attorneys have also sought to collect Trump’s DNA, so it can be compared to material found on the dress she says she was wearing the day she says she was attacked, a request that is now on hold pending the judge’s decision about whether Carroll’s suit could be determined by Zervos’s arguments.

At one point, they said, Trump’s team argued that the Carroll and Zervos cases were so different they could not be handled by the same judge. Later, his attorneys argued the cases were so similar that Carroll’s needed to be on pause until the Court of Appeals ruling in the Zervos matter.

Carroll lawyer Roberta Kaplan wrote that the president’s “takes on this case and Zervos have been remarkably inconsistent (even contradictory),” but that he “deserves credit for consistently doing everything possible” to avoid proceeding.

Kasowitz, Trump’s attorney, did not respond to a request for comment.

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Trump’s position in court stands in sharp contrast with the political arguments being made against Biden by the president’s GOP allies. In recent weeks, they have pressed Democratic lawmakers to answer whether they believe former Biden aide Tara Reade and demanded that the presumptive Democratic nominee do more to answer the claim against him.

In an appearance on Fox News earlier this month, Lara Trump, the president’s daughter-in-law and a campaign adviser, suggested that people innocent of sexual assault charges would engage in radical transparency to prove the allegations false.

“I would think if you were being accused of something and you were totally innocent you would go to any length possible . . . to try and clear your name, including allowing people to open up files like that and make sure you’ve turned over every single leaf to prove your innocence,” she said.

Biden requested that the secretary of the Senate search for and release any records related to a harassment complaint that Reade has said she filed against Biden’s office. The Senate secretary replied that federal law would not allow for such documents, if they exist, to be released.

Reade’s attorney this week sent Biden a letter asking him to open up his Senate office archives, maintained at the University of Delaware, and authorize a search any relevant records.

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Trump himself has sounded more sympathetic to his Democratic rival, saying on “Fox & Friends” last week that Biden is “is going to have to be able to prove whatever he has to prove, or she has to prove it, but that’s a battle he has to fight.”

“I’ve had many false accusations made, I can tell you that,” Trump added. “Many. And maybe it is a false accusation. Frankly, I hope it is, for his sake.”