Women's Issues

Trump Brief Basically Argues Slut Shaming Is Protected Speech

I know he's not as powerful as Harvey Weinstein, but can we get back to the part where there's an alleged sexual predator in the White House?

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Donald Trump (Photo by Mark Wallheiser/Getty)

I know you don’t care. I don’t know why you don’t care, but I know that you, somehow, have made your peace with the fact that 11 women have accused the president of sexual assault or misconduct. I know that in the grand scheme of promised tax cuts, the destruction of health care, and rich black people not standing when they’re told, the fact that the president goes around allegedly groping women’s private parts is old, uninteresting news. I know that you are saving your sexual harassment outrage for Harvey Weinstein and Kevin Spacey and whichever Hollywood star is next.

It’s probably safer for you this way. It’s probably easier for you to get your awful #MAGA family on board with “that gay guy is a pedophile” than it is to hold them to account for voting for a misogynist Nazi. Thanksgiving is coming up, after all. Acknowledging Trump’s history of sexual impropriety will probably throw Uncle Pederast into a blind rage, and you just want to go fishing with your kids without talking about “politics.”

I CARE. It’s lonely out here on the limb where I hold the actual President of the United States to a higher standard than the guys who pretend to be the president on television. I’m going to stay out here. My only comfort is that when I look back at you hypocrites and sycophants, afraid to let go of your tribal tree, I get to see your craven asses. I get to know who you really are.

President Donald Trump was sued for defamation by Summer Zervos, just before the inauguration. Zervos was one of the 11 women who accused Trump of sexual misconduct during the campaign.

During the campaign, Trump promised he would sue all the women for lying, but of course that didn’t happen. Since the defamation suit, Trump has continued to… basically defame Zervos. But his team didn’t put out a legal response to the allegations until this week. Marc Kasowitz might no longer be in charge of protecting Trump from Bob Mueller, but he’s apparently still good enough to sicced onto mere women who accuse the president of wrongdoing.

The 36-page motion to dismiss spends a lot of time arguing that Zervos’s complaint is politically motivated. That… doesn’t matter at all. No judge is going to say, “Well, there are valid issues for a trier of fact here, but this is all happening because of politics so I’m going to throw it out.” BUT HER EMAILS… is not a valid legal defense.

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The filing does spend some time arguing that the statements are not defamatory, which you would expect, and it spends some time arguing that Trump cannot be sued because of the Supremacy clause. I think the Paula Jones lawsuit definitively answered that question, but Kasowitz argues that Clinton v. Jones applies to federal courts and only federal courts. Zervos is suing Trump in state court and Kasowitz argues that Clinton v. Jones reasoning should not be extended to state courts.

I think that is a bad argument, but it’s important to note that it is a fully thought through LEGAL argument, and I am therefore thankful for it. If this case gets thrown out, it’ll be on this and not any of the narrative crap found elsewhere in the motion.

But at the heart of the motion are the same two arguments that forms the core of pretty much every legal argument made in defense of Trump since he took office:

1. Trump can say whatever he wants during the campaign.
2. Trump can say whatever he wants on Twitter.

Nor can Ms. Zervos refute the fact that all of the Statements occurred on political forums — a campaign website, on Mr. Trump’s Twitter account, in a presidential debate, and at campaign rallies — where the listeners expect to hear public debate, taken as political opinion rather than a defamatory statement.
See, e.g.,Brian, 87 N.Y.2d at 52 (“a medium that is typically regarded by the public as a vehicle for the expression of individual opinion [such as a political forums] rather than the rigorous and comprehensive presentation of factual matter” suggest that a reader would anticipate “vigorous expressions of personal opinion”); Mem. 27-28.10

Courts consistently recognize that Internet postings — particularly on social media like Twitter — are on forums that an audience would understand to contain “‘vigorous expressions of personal opinion,’ ‘rather than the rigorous and comprehensive presentation of factual matter.’” Jacobus, 51 N.Y.S.3d at 339; Mem. 27-28 (collecting cases). 11 This does not mean that, as Ms.Zervos insinuates, Mr. Trump contends that posting something in any manner on the Internet will “immunize it” from liability in all cases. (Pl. Mem. 27.) However, each of the Twitter Statements (Compl. ¶¶ 60-61, 63, 66-70; App. A. Nos. 4-7, 10-14) are subject to the same considerations that led the Court in Jacobus to conclude that the public would not consider them to be defamatory. 51 N.Y.S.3d at 339. Similarly, the Statements published on Mr. Trump’s campaign website (Compl. ¶¶ 55-56; App. A. Nos. 1-2), were posted on pages that visibly stated: “Be a Voter” and “Donald J. Trump for President,” and “Paid for by Donald J. Trump for President, Inc.” on a banner upon entering the website. Kasowitz Reply Aff. Ex. 2. As such, these are akin to political flyers and advertisements, routinely considered to be non-actionable campaign opinion. See, e.g., Matson v. Dvorak, 46 Cal. Rptr. 3d 880, 882 (Cal. Ct. App. 1995); Reed, 204 Cal. Rptr. 3d at 191; supra page 7.1.

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In fact Trump is and always is asking for “immunization” for anything he says on Twitter or in the context of running for office. He’s asking the courts, repeatedly, to ignore what he says about the “Muslim ban,” and instead focus on the minimal textual interpretation of the travel ban. He’s asking people to not take him literally when he suggests that protesters at his rallies should be beaten up. YESTERDAY, Trump SENTENCED A MAN TO DEATH ON TWITTER!!!! And I promise you that during pre-trial motions in the Sayfullo Saipov case, some poor prosecutor is going to have to trot out this stupid defense that WHAT THE PRESIDENT OF THE UNITED STATES SAYS ON TWITTER DOESN’T MATTER.

Let’s not forget what Trump has said about Zervos. From the Washington Post:

Trump denied the allegations, calling them “pure fiction” and labeling the women “horrible, horrible liars.” He vowed to sue his accusers and promised evidence that would refute their claims, although nearly a year later, neither the lawsuits nor such evidence has materialized.

Trump, asked about the Zervos case last month, called it “made-up stuff” and “disgraceful.” White House press secretary Sarah Huckabee Sanders said last week that the Trump administration’s official position is that all of Trump’s accusers are lying.

And while it’s not important in the instant case, let’s remember that Zervos hasn’t really gotten the worst of it. We’re talking about a guy who has argued that some of his accusers weren’t pretty enough to sexually assault.

What Trump is doing is beyond a mere denial of allegations made against him. It’s beyond “I did not have sexual relations with that woman.” Trump has bullied and threatened these women, repeatedly. Kasowitz argues that doing it on his campaign website somehow makes it okay? In reality using the full force of his bully pulpit has made the possible harm Trump has caused to their reputations even more damaging. Trump’s Twitter account is not some random message board shouting out into the ether, as are the forums in some of the cases Kasowitz cites. Trump’s Twitter account amount to the official press statements of the President of the United States.

He’s violating these women, potentially again, right in front of us. I DON’T WANT TO TALK ABOUT YOUR STUPID TAX CUTS. I DON’T WANT TO TALK ABOUT HOW FAR VLADIMIR PUTIN’S HAND IS UP MARK ZUCKERBERG’S ASS.

What Trump allegedly did to these women is not okay. What he’s clearly doing to them now is not okay. We cannot suddenly care about sexual harassment and assault and continue to ignore the alleged sexual predator IN CHARGE OF THE COUNTRY.

Trump was expressing political opinion by calling sexual-harassment accusers ‘liars,’ his attorneys argue [Washington Post]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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