Ex-Apprentice contestant alleges Trump smeared her by claiming her allegations of sexual misconduct against him were lies

This article is more than 1 year old

This article is more than 1 year old

Donald Trump’s lawyers will appear in a New York appeals court on Thursday probably to reiterate their arguments that presidential immunity insulates him from a state defamation lawsuit while in office.

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The suit at issue involves the ex-Apprentice contestant Summer Zervos, who alleges that Trump wrongly smeared her during his campaign by claiming her allegations of sexual misconduct against him were lies.

The outcome of Trump’s appeal may set the stage for his lawyers to attempt a supreme court showdown over presidential protections after Brett Kavanaugh, a potentially pro-immunity justice who himself has been accused of sexual misconduct, ascended to the nation’s top bench.

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Marc Kasowitz, who is the lead attorney defending Trump in Zervos’s January 2017 lawsuit, had unsuccessfully pushed for the Manhattan supreme court judge overseeing her case to dismiss, or postpone, the litigation.

Kasowitz has claimed the US constitution’s supremacy clause – which deems that federal statute “shall be the supreme law of the land” – shields Trump from state-level litigation that could interfere with his presidential duties.

While the judge who denied this bid for dismissal didn’t buy his argument – writing “no one is above the law” in her 20 March decision – recent filings suggest Kasowitz is poised to make similar claims when he appeals before a higher court later this week.

Kasowitz has recognized the US supreme court ruling in the case of Clinton v Jones that allows a sitting president to be sued. The decision permitted Paula Jones’s federal sexual harassment lawsuit against Bill Clinton to move forward while he still occupied the Oval Office.

But Kasowitz’s brief maintains that in Clinton v Jones, the supreme court “explicitly noted that whether the supremacy clause bars state court actions against a sitting President is an ‘important constitutional issue,’ which may very well ‘present a more compelling case for immunity’”.

Trump is making the same argument that former President Clinton made to get out of Jones’s lawsuit – that “participating in pending litigation would so consume his time and distract his attention that it would materially impede his ability to perform his duties as President,” according to Wang’s appeal brief.

Zervos’s lawyer, Mariann Wang points out that the US supreme court “unanimously rejected” this presidential duties-based immunity argument in its decision.

At a recent hearing in the Zervos case, Kasowitz has reportedly said that the immunity-based question is a “critical constitutional issue” and that “this issue will likely reach the supreme court of the United States”.

Kasowitz’s position that he would try taking the case to the supreme court is made all the more relevant by the recent Kavanaugh confirmation.

The newly minted justice has supported the idea of insulating presidents from lawsuits while they are in office; an argument that has angered some critics who fear Trump may have appointed a justice to the supreme court motivated in part by a sense of self-preservation.

Kavanaugh, who worked on Kenneth Starr’s investigation of Clinton, wrote in a widely reported 2009 Minnesota Law Review article he believes “the President should be excused from some of the burdens of ordinary citizenship while serving in office,” such as lawsuits.

“Looking back to the late 1990s, for example, the nation certainly would have been better off if President Clinton could have focused on Osama bin Laden without being distracted by the Paula Jones sexual harassment case and its criminal investigation offshoots,” Kavanaugh wrote.

While Kavanaugh does not claim the constitution shields the president from litigation – and says the supreme court’s view in Clinton v Jones “may well have been entirely correct” – he suggests “it would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office.”

Ciara Torres-Spelliscy, a professor at Stetson University College of Law, cautioned that Kavanaugh’s past writing doesn’t predict how he would vote – and that the supreme court would not necessarily have to accept a Zervos appeal.

“We just don’t how he’s going to act on that belief,” Torres-Spelliscy said “If he doesn’t have four other justices join him, if he’s alone in this view, then that’s not going to create new law.”

Zervos has alleged Trump “ambushed and assaulted [her] on multiple occasions, including attacks at both his office and in a hotel room”.

Trump “kissed [Zervos] on her mouth, touched her breast, and pressed his genitals up against her” without her consent in 2007, she has alleged both in public statements and court papers.

Zervos said she decided to go public in October 2016 shortly after the Washington Post obtained a video in which Trump boasted about his sexual conquests.

“You know, I’m automatically attracted to beautiful – I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait,” Trump reportedly said to TV personality Billy Bush during their visit to the Days of Our Lives set in 2005. “And when you’re a star, they let you do it. You can do anything.

“Grab them by the pussy. You can do anything,” Trump was recorded as saying.