This article is more than 1 year old

This article is more than 1 year old

Donald Trump’s lawyer argued vehemently in a New York appeals court on Thursday that the president has immunity from state lawsuits – despite failure of this argument in a lower court in the case involving the one-time Apprentice contestant Summer Zervos.

Summer Zervos has alleged that Trump sexually “ambushed and assaulted [her] on multiple occasions, including attacks at both his office and in a hotel room”, according to court papers.

She is claiming defamation, stemming from Trump’s denials on the campaign trail of any such abuse involving the former contestant on his reality TV show. She charges that by calling her a liar, the president wrongly maligned her, a paper filed in her January 2017 Manhattan supreme court lawsuit says. Trump’s lawyer in the case, Marc Kasowitz, has repeatedly argued that the president cannot be sued in this way.

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The US constitution “bars state court actions against a sitting president”, he argued on Thursday before a panel of New York state appeals court judges.

Kasowitz’s point reiterates one that he unsuccessfully made in the lower court previously. He had claimed the constitution’s supremacy clause, which holds that federal law “shall be the supreme law of the land”, insulates a person in Trump’s position from state lawsuits, the defense of which could impede his official duties.

Justice Cynthia Kern, one of the five judges hearing the appeal, asked Kasowitz how a state court proceeding could interfere with a president’s responsibilities.

“Exercising any jurisdiction over a party is exercising control over a party,” Kasowitz replied, adding: “The state court has no power, no authority under the constitution.”

Kasowitz also attempted to advance his claim that the US supreme court decision enabling federal lawsuits against presidents does not apply to state cases.

Trump faces double lawsuit threat from ex-Playboy model and Apprentice star Read more

The supreme court decision, widely cited of late, stems from Paula Jones’s federal sexual harassment lawsuit against Bill Clinton when he was president, based on accusations from his past when governor of Arkansas.

The former president himself had unsuccessfully fought Jones’s case on the grounds that fighting a lawsuit would get in the way of his official duties.

Clinton agreed in January 1999 to pay Jones $850,000. Her lawsuit brought to light Clinton’s affair with the White House intern Monica Lewinsky and set in motion a criminal investigation that resulted in a historic congressional vote to impeach the president. He was acquitted in a Senate trial.

In court on Thursday, Mariann Wang, who represents Zervos, argued that while Clinton v Jones does not give a definitive answer on a president’s possible liability in state court, the decision by no means prohibits it.

Wang told the appeals panel that Trump “is not above the law”.

“There’s no coherent argument” that protects Trump based on the US constitution, Wang said.

The justices also pressed Wang about whether a state court judge could arrest a president who had been held in contempt for not complying with judicial orders.

If a president could be held in contempt and subsequently arrested, wouldn’t this interfere with presidential powers?

Wang demurred, and said that state court judges had many avenues of enforcing contempt orders that did not involve arrest.

The appeals panel will issue a decision at a later date.

Kasowitz previously said in relation to immunity claims that “this issue will likely reach the supreme court of the United States”.

Kasowitz’s statement comes in the wake of Justice Brett Kavanaugh’s ascension to the supreme court last month.

Kavanaugh, whom Dr Christine Blasey Ford accused of attempted rape during a high school party when he was 17 and she was 15, has previously voiced support for protecting presidents from legal proceedings while they are in office.

He wrote in a 2009 Minnesota Law Review Paper “the president should be excused from some of the burdens of ordinary citizenship while serving in office” and that Congress should enact legislation that would accomplish such temporary immunity.

Critics have worried that in picking Kavanaugh Trump was at least motivated by self-preservation.

An expert previously told the Guardian that Kavanaugh’s past writing does not predict how he would vote, however.