'No One Is Above The Law,' Declares Court Allowing Defamation Suit Against Trump To Proceed

Not sure if this is what Trump had in mind when he talked about 'opening up the libel laws.'

Summer Zervos

Manhattan Supreme Court Justice Jennifer Schecter issued quite a stirring rebuke to the President of the United States in her decision to allow a defamation suit against him to proceed. From the ruling:

No one is above the law. It is settled that the President of the United States has no immunity and is “subject to the laws” for purely private acts (Clinton, 520 US at 696). In Clinton v. Jones, the United States Supreme Court made clear that “immunities are grounded in ‘the nature of the function performed, not the identity of the actor who performed it'”

There is a lot of news today, and every day in the Trump era feels like somebody is shoving a firehouse of filth down your throat, but this ruling is objectively HUGE. It means that Trump is now open for discovery, folks. DISCOVERY — related to his sexual conduct, or at least how he talks about it!

The defamation suit arises from the allegations of former Apprentice contestant, Summer Zervos. Zervos claims Trump assaulted and harassed her, but critically, that’s not what she’s suing over. Instead, she’s suing for defamation because Trump has repeatedly called her, and all of the other women who have accused Trump of inappropriate sexual conduct, liars. He’s said that their allegations are “fake news” and stated that they’ve been “proven false.”

Trump’s legal team argued that his status as president meant that he could not be sued for defamation. Schecter smacked that argument down so hard you’d think it owed her money:

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.

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For those playing along at home, “[n]othing… even suggests… [that the defense is correct]” is the judicial equivalent of “I award you no points, and may God have mercy on your soul.

This puts Trump in an incredibly difficult spot. There are three common ways of fighting a defamation case. Let me know if any of these sound palatable to Donald Trump:

1. Truth. Truth is a defense to defamation. So… all he has to do is prove that he did NOT assault Zervos, or that she is lying, or offer some evidence that her allegations have been “proven false.” Good luck with that.

2. The statements are false but Trump had a good faith reason to believe them to be true. What he said was NOT TRUE, but he would have to show that he had some reason to believe what he said was true. He has to show that he didn’t recklessly disregard the truth when he said what he now knows to be false. Again, best of luck, Donald.

3. Clear parody. Trump could argue that no reasonable listener to Donald Trump would believe what Donald Trump says. People, this is the RIGHT argument. I don’t know if it’s a winner, but it’s easily his best argument at trial. NOBODY TAKES TRUMP SERIOUSLY WHEN HE DENIES SEXUALLY ASSAULTING WOMEN!

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Regardless, if he fights it, Trump would likely have to make one (or all) of these arguments at trial. Most of the time, in a defamation situation like this, the defendant would just settle. Certainly, at any other point in his life, Trump would likely just pay off Zervos, bind her with an NDA, and be done with it.

I’m not sure the settlement move works here. It would be one hell of a “look” for the sitting president to pay off a woman who accused him of sexual assault because he can’t prove at trial that she’s a liar like he says she is. Moreover, while I assume that Zervos has a price (because we ALL do), it doesn’t really feel like Zervos is pushing this forward because she’s looking for a payday.

Hell, I’ll contribute to whatever Kickstarter/Go Fund Me to encourage Zervos to keep up her fight. I want discovery!

I know Stormy Daniels is that hot sex scandal of the moment, mainly because Stormy Daniels is the hot campaign finance scandal of the moment. But 19 women have accused Trump of some form of sexual misconduct, and one of them just might get her day in court.

It’s the biggest news on this crazy news day.

Zervos v. Trump [Manhattan Supreme Court]
Trump loses bid to dismiss accuser’s defamation lawsuit [Reuters]


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.