Wednesday, 20 Mar 2019

The Summer Zervos sexual assault allegations and lawsuit against Donald Trump, explained

Zervos’s defamation suit could put Trump’s whole presidency at risk.

“Summer Zervos is one of many women who has been subjected to unwanted sexual touching by Donald J. Trump.”

So begins the defamation lawsuit filed by Zervos, a restaurant owner and former contestant on The Apprentice, who says Trump sexually assaulted her in 2007 and then called her a liar when she spoke out about it in 2016.

Zervos’s case centers on a disturbing account of sexual assault, an important distinction from two other high-profile legal cases involving women and Trump. Porn actress Stormy Daniels and former Playboy model Karen McDougal (who is suing the company that publishes the National Enquirer) say they had consensual affairs with Trump.

Zervos scored a victory on Thursday when a New York appellate court ruled that her suit could go forward, rejecting the Trump team’s argument that a sitting president can’t be sued in state court. Trump’s lawyers plan to appeal the decision, according to the Washington Post.

The potential implications of the Zervos case are huge. When Paula Jones sued Bill Clinton for sexual harassment 20 years ago, the Supreme Court set the precedent that a sitting president can’t push off a federal case until after he leaves office. Clinton’s perjury in a deposition in that case ultimately led to his impeachment.

If Zervos’s case enters the discovery phase, Trump could find himself in a dangerous position. Zervos’s lawyers could seek a broad range of information from Trump and his campaign — they’ve already subpoenaed all campaign documents relating to “any woman alleging that Donald J. Trump touched her inappropriately.”

In discovery, Zervos’s lawyers could also depose Trump, forcing him to speak under oath — and potentially putting him the same situation Clinton once faced. Trump’s lawyers will probably try to keep the case tied up in appeals as long as possible. But if it gets to the discovery phase while Trump is still in office, the case could jeopardize his presidency. And Trump could finally face real consequences for the fact that not only Zervos but more than a dozen other women have accused him of sexual misconduct.

Summer Zervos is suing Trump for calling her a liar

In her suit, Zervos says that she reached out to Trump in 2007 after her appearance on The Apprentice, hoping for career advice and possibly a job opportunity. He invited her to his office at Trump Tower, where he kissed her on the lips twice, she says, but also told her he would love to have her work for him.

Soon after, she agreed to have dinner with him at the Beverly Hills Hotel. When she arrived, however, she says Trump’s security guard took her to a bungalow instead, where Trump sexually assaulted her, touching her breast and pressing his genitals against her.

But Zervos is not suing Trump for sexual assault — the statute of limitations on that has passed. Instead, she’s suing for defamation.

Zervos spoke publicly about her experiences with Trump in October 2016, after the release of the Access Hollywood tape in which Trump can be heard bragging about his ability to grab women “by the pussy.” Later that month, Trump, who had been accused of sexual misconduct by multiple women, said that “every woman lied when they came forward to hurt my campaign,” and “all of these liars will be sued after the election is over.” He also specifically contradicted Zervos’s account, saying, “I never met her at a hotel or greeted her inappropriately a decade ago.”

In her suit, Zervos says Trump’s statements about her were “painful and demoralizing” and caused her restaurant to lose customers. “Mr. Trump’s false, defamatory statements about Ms. Zervos — that, among other things, she made up her descriptions of Mr. Trump’s misconduct as a hoax, and that she is creating a ‘phony’ story just so that she can be famous — have been deeply detrimental to Ms. Zervos’s reputation, honor and dignity,” the suit states.

In her suit, Zervos won’t actually have to prove that Trump sexually assaulted her — she’ll just have to prove that what he said about her was defamatory, potentially a lower bar to clear.

It’s important to note that suing for defamation isn’t just a “backdoor way to get at the sexual assault or sexual misconduct after the statute of limitations has run,” says Naomi Mezey, a law professor at Georgetown University and a co-director of the Georgetown Gender Justice Initiative. “The real, legitimate injury that comes from defamation is important in and of itself because it is the easiest form of attacking someone who does try to come out against a high-profile person with information about sexual misconduct.”

“To the extent that we need women to be brave about coming forward,” she added, “we need to take seriously the injury, or the multiple kinds of injuries, that result from the denunciation of them when they do come out.”

Trump’s team is claiming that Zervos can’t sue in state court

Trump’s lawyers have made a number of arguments to try to get Zervos’s suit dismissed, but the most important has to do with the fact that Zervos is suing in New York state court. The Supreme Court decision in Clinton v. Jones, which stemmed from Paula Jones’s sexual harassment lawsuit against President Clinton, established that the president can be sued in federal court for acts committed outside his official capacity as president. But Trump’s lawyers are arguing that the president cannot be sued for such acts in state court.

New York Supreme Court Judge Jennifer G. Schecter rejected that argument in 2018, arguing that the logic of Clinton v. Jones was just as applicable in state court as in federal court. “No one is above the law,” she wrote in her ruling.

Trump’s team appealed that decision, bringing it before a panel of five judges. On Thursday, the panel ruled that Zervos’s case could go forward, according to the Washington Post. “This Court should not be deterred from holding that a state court can exercise jurisdiction over the President as a defendant in a civil lawsuit,” wrote the judges in their majority opinion. Two judges on the panel dissented, arguing that “the President should not be forced to defend this lawsuit while he is in office.”

Trump’s lawyer Marc Kasowitz told the Post that Trump will appeal the decision to the New York Court of Appeals, “which we expect will agree with the dissent.”

The Trump team will likely appeal the case all the way up to the Supreme Court if it’s not dismissed before then, said David Marcus, a law professor at the University of Arizona. They may not win, but they could drag out the process until it doesn’t matter anymore. Again, the Clinton parallel is instructive: “The whole strategy during the first few years of the Jones case, as far as Bill Clinton was concerned, was to try to keep the case stalled until after the reelection campaign,” Marcus said.

Trump’s team will probably try to keep the case tied up in appeals until after 2020 when it can no longer hurt any potential reelection campaign. They might succeed — Paula Jones first sued Bill Clinton in May 1994 and Clinton wasn’t deposed until January 1998, nearly four years later.

The biggest risk for Trump: discovery

What Clinton was trying to avoid during his first term as president, says Marcus, was discovery, the process by which lawyers seek information from the opposing parties before trial to build their case. If the case makes it to the discovery phase, Zervos’s lawyers will be able to request memos, emails, and other documents from the Trump campaign to see if Trump was telling the truth about his conduct with Zervos, Marcus said.

They can request documents not just about Zervos but about Trump’s interactions with other women as well, as part of an effort to establish a pattern of behavior on Trump’s part. In fact, Zervos’s team has already signaled that this may be part of their strategy, issuing a subpoena in March 2017 demanding that Trump turn over all documents concerning not just Summer Zervos, but also nine other women who have accused Trump of sexual misconduct, as well as “any woman alleging that Donald J. Trump touched her inappropriately.”

If the case goes forward, Trump may not be able to fend off such requests. And if Zervos’s lawyers did get documents backing up her accusations against Trump or those of other women, they would be able to release those documents to the press or the public. And there would probably be little Trump could do to stop them.

Another big risk for Trump if the case goes to discovery would be the prospect of a deposition. If Zervos’s lawyers depose Trump, he’d have to answer questions under oath. That’s what happened to Clinton in 1998 — he was deposed in the Paula Jones case and he lied, saying he’d never had sexual relations with Monica Lewinsky. That set in motion his impeachment on the grounds of perjury.

Trump, who appears to have little regard for the truth, might be at particularly high risk of perjuring himself. “The potential for perjury is especially high in this case because they have a defendant who is notoriously incapable of verbal self-control,” Mezey said.

Discovery could lead to impeachment — but only if Congress is on board

If Trump is deposed and lies under oath, he could be impeached for perjury just as Clinton was. It’s also possible that discovery could turn up evidence of other crimes — an assault, for example, or campaign finance violations.

Trump is already facing a complaint from the watchdog group Common Cause, which argues that Trump lawyer Michael Cohen’s payment of $130,000 to Stormy Daniels in exchange for her silence about an alleged affair with Trump may have been an illegal campaign contribution. Karen McDougal, who is suing the company American Media Inc. for the right to tell her story about Trump, says Cohen was involved in a deal to keep her silent as well.

McDougal and Daniels aren’t alleging that Trump ever touched them inappropriately. But it’s possible to imagine their accounts coming up in discovery as part of an effort to establish a pattern — especially since McDougal’s story, at least, has some key similarities to Zervos’s. In a Thursday interview with CNN’s Anderson Cooper, McDougal said she, too, went to the Beverly Hills Hotel expecting to have dinner with Trump, only to be shown to his private bungalow.

“It’s the one he said he always stayed at,” McDougal said. “Every time I met him there it was the same exact bungalow. He called it the nicest bungalow they had.”

Of course, no matter what comes up in the discovery process, Trump can only be impeached if Congress wants to impeach him. House Speaker Nancy Pelosi recently said that she does not favor impeachment, arguing that Trump is “just not worth it.”

The court of public opinion matters too

Impeachment isn’t the only negative consequence Trump could face if damaging information about his history with women makes it into the public domain.

A strength of litigation, Marcus said, is that “people can’t spin anything — they have to answer truthfully.” He mentioned the trial of Kansas Secretary of State Kris Kobach, vice chair of Trump’s voter fraud commission — a trial that, according to Slate’s Mark Joseph Stern, revealed that Kobach’s “quest to boot thousands of voters off the rolls was a lawless farce.”

If Zervos’s lawsuit gets to discovery and her lawyers can find no evidence of misconduct by Trump, “the president’s supporters would be able to use that to great effect,” Marcus said. On the other hand, if Trump were forced to admit to sexual assault or other misconduct, “then we finally would get some conclusive, hard-to-spin evidence coming out about a lot of the allegations he’s thus far been able to fob off.”

“A lot of people already have their opinions about the president and his propensity for this kind of behavior,” Marcus said. “But generated in the truth-telling process of litigation, I think this information might have particular credibility.”

And if that process takes place before the 2020 election, it could affect Trump’s chances of winning a second term.

Of course, the suit also has implications for Summer Zervos. Her whole rationale for suing is that Trump has damaged her reputation by calling her a liar. If her suit exposes him as a liar, then it could vindicate her in the public eye.

That could happen even if Zervos doesn’t actually win her case — as Mezey pointed out, Paula Jones lost her suit against Clinton but it still led to his impeachment.

“For Summer Zervos, it may matter whether she wins the legal case,” Mezey said. “But it may be that if, politically, Trump loses, Summer Zervos also wins.”

Zervos is far from alone in accusing Trump of sexual misconduct — 19 women have done the same. Trump has also described, on the Access Hollywood tape, actions very similar to what some of the women reported. Yet he has faced no consequences for any of this. Instead, he has repeatedly branded the women as liars, using his Twitter feed and public appearances to smear their reputations.

Even the #MeToo movement, which has resulted in career repercussions for some (though by no means all) powerful men accused of sexual harassment and assault, has yet to touch Trump. “Women have found strength in one another and the courage to come forward, leaving many powerful men to suffer the consequences of their actions,” Trump accuser Rachel Crooks said at a December 2018 press conference. “Trump, however, has escaped this path unscathed.”

Summer Zervos’s lawsuit could change that. So far, the women who have come forward to report their experiences with Trump have received only blame and insults for their troubles. Zervos’s suit could be a chance for them to be vindicated at last.

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