Summer Zervos, a former contestant on The Apprentice, is suing Trump for defamation after he accused her of lying about sexual harassment in 2007

This article is more than 2 years old

This article is more than 2 years old

Can you sue the president? The finer points of this question were subject to much legal sparring on Tuesday when a lawyer for Donald Trump argued for the dismissal of a lawsuit that threatens to reignite one of dozens of accusations of sexual assault facing the president.

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The lawsuit was brought by a former contestant on The Apprentice, Summer Zervos, who claims Trump kissed her and groped her breast during a 2007 meeting to discuss business opportunities at the Beverly Hills Hotel.

Trump thunderously denied her accusations, along with those of other women he called politically motivated liars. Zervos is suing Trump for defamation.

Or rather, she’s trying. In a hearing before a New York judge, Jennifer Schechter, to determine the case’s future, Trump’s attorney Marc Kasowitz argued that Zervos shouldn’t be allowed to proceed with her suit.

Trump’s denials were political speech, he said, protected from legal action, and a lawsuit would prevent the president, who holds a singular office, from performing his job.

“The president is the person who runs the executive branch,” Kasowitz said. “He needs to be available 24/7.”

The potential impact of Zervos’s lawsuit, if she is allowed to proceed, is immeasurable. It would almost certainly link Trump’s name more permanently to the scores of powerful men recently accused of sexual misconduct.

There is a chance Trump could be compelled to testify, something that led to Bill Clinton’s impeachment proceedings when he was revealed to have lied under oath.

Her lawsuit could also expose Trump, who faced roughly 75 lawsuits when he assumed the presidency, to a flood of litigation.

For political observers, the case brings a wave of deja vu. In 1997, the US supreme court ruled a president could be sued for private conduct that took place before he assumed office. The lawsuit in question was brought against Clinton by Paula Jones, on claims that he sexually harassed her.

But attorneys for Trump have said the supreme court ruling does not apply to New York state law.

On Tuesday, a member of Zervos’s legal team, Mariann Meier Wang, called those arguments “creative arguments out of a footnote in Clinton v Jones”.

“What better court to hear a defamation claim against a born and bred New Yorker who made many of his defamatory statements just up in Midtown?” she asked. “We do not dispute that the president holds a singular office, but the individual who holds that office is not above the law.”

Zervos accused Trump of assault in October 2016 at the law offices of the women’s rights attorney Gloria Allred, who is also representing her in her suit. She said Trump, during their 2007 encounter, greeted her for a meeting to discuss job opportunities with an open-mouthed kiss, then attempted to steer her toward the bedroom of the bungalow where they met.

“Let’s lay down and watch some telly-telly,” she claimed he said. When she replied, “C’mon man, get real,” he repeated after her – “Get real” – and thrust his genitals at her.

On the campaign trail, Trump called her accusations and others’ “phoney”, “100% false” and “outright lies” made for political or monetary gain.

Schechter did not immediately rule on whether the case could proceed. And there were signs that she would weigh not just the specifics of existing case law, but also the unprecedented nature of the Trump presidency in making the call.

Can Trump be held liable for a retweet? the judge asked. Yes, said Wang, if it constituted a “substantive addition to the commentary”.

At one point, Schechter asked what would happen if the president simply refused to follow one of her orders. Wang said she didn’t think that would be a problem.

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Schecter seemed sympathetic to arguments that Trump is, in contrast to what his lawyers have said, not incapable of participating in a lawsuit while doing the duties of his office. If the lawyers’ claim were true, she said during Wang’s arguments, Congress would have changed the law after Jones sued Clinton.

But in his rebuttal, Kasowitz argued that Trump’s harshest remarks about his accusers – such as saying they were “liars” motivated by money – weren’t specific to Zervos herself but to “generalized, broad and vague charges”.

He added that speech made in the flurry of a political campaign, at rallies and in press releases was “protected political speech”.

“Although events happened almost a decade ago, [Zervos] saw fit, three weeks before the election, to come forward and make claims about the president that the president denied, but to make claims that would be damaging to the election the president was engaged in at that time,” Kasowitz said. “She started a back-and-forth,” he said. “That’s politics.”

