Advancing a sweeping claim of presidential immunity, President Donald Trump’s lawyers have formally asked to dismiss a lawsuit brought by a former "Apprentice" contestant who says he groped her a decade ago.
Trump’s assertion that a sitting president cannot be sued in a state court was contained in a court filing submitted to a Manhattan judge by Marc Kasowitz, the same private attorney heading up the president’s defense in ongoing investigations into alleged ties between Russia and the Trump campaign during last year’s presidential race.
Kasowitz’s motion adopts some of Trump’s forceful rhetorical response to the Russia probe, dismissing the lawsuit from former "Apprentice" contestant Summer Zervos as "a private witch-hunt" aimed at doing political damage to the president and providing fodder for potential impeachment proceedings.
"Ms. Zervos and her counsel have openly conceded — indeed, bragged — that their true motivation is to use this action for political purposes as a pretext to obtain broad discovery that they hoped could be used in impeachment hearings to distract from the President’s agenda," Kasowitz wrote in the motion filed Friday night with New York Supreme Court Judge Jennifer Schecter.
Prior to last year’s election, Zervos claimed that when she appeared on the show Trump hosted a decade ago he repeatedly kissed her on the mouth, grabbed her breast and thrust his genitals at her. Trump issued a statement that appeared to deny the allegations. In the new filing, his lawyers call her allegations "false."
However, the most legally controversial of Kasowitz’s arguments is his contention that Trump is immune from suit in state courts during the time he serves as president.
The U.S. Supreme Court ruled in a 1997 case involving President Bill Clinton and former Arkansas state employee Paula Jones that the president is not immune from civil lawsuits while in office.
The justices said they had confidence that federal judges could manage such litigation with appropriate deference to the president’s important duties, but Trump’s legal team notes that the high court left open the question of whether state courts should be similarly trusted to manage litigation against the president. Trump’s lawyers say allowing state courts to oversee such suits would be a mistake.
"This action should be dismissed without prejudice to Ms. Zervos refiling after the President completes his presidency because this State Court does not have jurisdiction to hear a civil action against a sitting President," Trump’s lawyers wrote. "This Court lacks the authority pursuant to the Supremacy Clause of the Constitution to exercise jurisdiction in this case because a state court cannot control President Trump — who uniquely embodies the Executive Branch — or interfere with his ability to perform his duties…"
"Clinton v. Jones recognized that if any civil suit against a sitting president were permitted to proceed, a federal court would be better positioned to handle such a matter given the threat of local prejudices, the lack of uniformity in states’ laws, and the federal courts’ expertise in handling federal immunity matters," Trump’s attorneys added.
While the Clinton v. Jones ruling did not resolve the question of state courts’ jurisdiction over a sitting president, Kasowitz and his colleagues attempt to leverage a slew of public criticism of the Supreme Court ruling. Much of that negative reaction came from liberal commentators who said the justices failed to foresee how politically fraught litigation would be when the defendant is the president.
The Trump brief approvingly cites critiques from figures such as Harvard Law Professor Laurence Tribe, former Commerce Secretary Mickey Kantor, 7th Circuit Appeals Court Judge Richard Posner and former acting Solicitor General Walter Dellinger.
"If this action is not temporarily stayed, it will disrupt and impair the President’s ability to discharge his Article II responsibilities. Indeed, numerous commentators have concluded that allowing Clinton v. Jones to proceed was in error," Kasowitz observed.
The suit filed earlier this year for Zervos by prominent women’s rights attorney Gloria Allred does not directly claim injury or damages from Trump’s alleged actions a decade ago. Instead, the complaint alleges that Trump’s denial of Zervos’ claims essentially called her a liar and damaged her reputation. She’s asserting about $3,000 in damages, an amount below the $75,000 threshold required to move litigation between parties in different states to federal court.
Kasowitz’s motion contains 40 mentions by name of Allred, terming her a "self-proclaimed political activist" and "high-profile Democratic fundraiser who has politically opposed Donald Trump for decades."
Trump’s legal team signaled in March that it planned to raise the claim about state courts lacking jurisdiction over the president. Trump’s attorneys wanted to press that argument first, then turn to the substance of the suit in subsequent proceedings, if necessary. However, the judge told Trump’s side to deal with both sets of issues at once, leading to Friday’s filing.
In a filing in April, Zervos’ lawyers dismissed Trump’s immunity claim.
"Precisely because Defendant’s underlying tortious behavior has nothing to do with his current duties or office, and because it occurred before he took that office, he does not have immunity from suit," Zervos’ attorneys wrote. "No person is above the law in this country and that includes the President of the United States."