Michael Dorf: The First Trump Gropee Lawyers Up

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Summer Zervos announces her defamation lawsuit against Donald Trump, January 17, 2017, in Los Angeles, California. Zervos a former contestant on The Apprentice accused Trump of sexually inappropriate conduct prior to the presidential elction. Michael Dorf writes that Zervos avers that Trump "complained about the price" of the room service club sandwich and fries that he and Zervos shared in the room where Zervos says was first groped. Complaining about the price of a sandwich is not relevant to the case. However, it shows that despite being wealthy, Trump is a cheapskate. David McNew/Getty

This article first appeared on the Dorf on Law site.

Summer Zervos, one-time contestant on The Apprentice, has sued Donald Trump for defamation based on statements that Trump made calling Zervos a liar after Zervos went public with allegations that Trump had groped her much in the manner of his boasting to Billy Bush in the infamous Access Hollywood recording.

The complaint is available here. It is juicy reading.

1) The complaint is clearly aimed not only at the court but at the public, containing details that are not directly relevant to the establishment of Trump's liability for defamation but nonetheless aim to expose negative aspects of his character.

For example, Zervos avers that Trump "complained about the price" of the room service club sandwich and fries that he and Zervos shared in the room where Zervos expected to be mentored, but, the complaint alleges, she was first groped.

Complaining about the price of a sandwich is not at all relevant to the legal issues in the case. However, it does tend to show that despite being very wealthy, Trump is a petty cheapskate.

Another irrelevant detail of the complaint describes Trump's financial advice to Zervos. Here is paragraph 33 of the complaint:

The conversation focused on Ms. Zervos’s mortgage on her home. Ms. Zervos told Mr. Trump that her mortgage was in good standing.

Mr. Trump told her to let her mortgage go into default and then tell the bank that they could take back her home. He told her to tell the bank that she would be leaving the keys to her home on the table, and the bank could come pick them up.

He said that it was a mini-version of what he does. He was emphatic that Ms. Zervos should not make another payment on her loan.

Again, there's no connection between this exchange and Trump's allegedly defamatory statements. They appear to be in the complaint simply to remind the public that Trump's modus operandi is not to pay his bills and that he doesn't even realize this is dishonorable behavior.

Related: Michael Dorf : We Must Oppose Trump Tooth and Nail

Is it a problem that the complaint contains material that is not, strictly speaking, relevant to the legal claims being alleged?

Not really. Good complaint writers--especially in high-profile cases--understand that the complaint has multiple audiences, including the press and the public. So long as the factual allegations of the complaint mostly tell the story that forms the basis for the legal claims, courts will allow some leeway to include additional narrative details.

2) Wait. Can the president be sued?

Probably. Nixon v. Fitzgerald held that a president has absolute immunity from civil liability for acts taken in his official capacity, but that immunity does not extend to private conduct before he became president.  

Thus, in Clinton v. Jones, the Supreme Court held that there is no temporary (much less permanent) immunity of a president for such conduct.

However, Jones was litigated in federal court, thus raising concerns of separation of powers. The majority opinion of Justice Stevens left open the possibility that litigation in state court might give rise to a different result, because such litigation would present issues of federalism and comity. A footnote (number 13) indicated that the Supremacy Clause might also play a role in determining whether the president has immunity to state court civil litigation.

Accordingly, it is open to Trump's lawyers to argue that notwithstanding Clinton v. Jones, the state court lawsuit of Zervos is barred by some as-yet unannounced immunity.

3) That possibility in turn raises the question why Zervos chose to sue in state court where there is at least a chance that Trump could have some immunity as president, rather than suing in federal court where he certainly would lack any such immunity under the rule of Jones.

Zervos could have sued in federal court because she is a resident of California while Trump is a resident of New York. However, because she chose not to sue in federal court, the case will remain in state court even if, for some reason, Trump wants the case in federal court.

Under the federal removal statute, a case that could have been brought in federal court can be removed to federal court, but not where the basis for federal jurisdiction would be diversity of citizenship and the defendant is sued in his home state, as Trump was. Federal law also allows removal by federal officers sued in state court, but only where the lawsuit is based on the performance of official duties.

Thus, having chosen to sue in state court, Zervos is probably stuck there. If Trump's lawyers succeed in obtaining a new state-court-only immunity based on footnote 13 of Jones, then presumably Zervos can refile in federal court, assuming that the statute of limitations hasn't run or the initiation of state court litigation is deemed to toll it.

4) Given the seemingly greater risk of proceeding in state court, why did Zervos do it?

One possibility is the hope for a friendly jury, although a federal jury in the Southern District of New York would likely have been friendly to a plaintiff suing Trump as well. [see footnote]

The substantive law to be applied in state court is the same as would apply in federal court, so that can't be a reason.

Finally, my research into New York law and federal law in the Second Circuit reveals more or less the same standard for what could be the biggest impact of the case: financial disclosure. Zervos has alleged punitive damages. In assessing punitive damages, the defendant's net worth is relevant (because a larger fine is necessary to inflict the same amount of punishment on a wealthier defendant than on a poorer one).

Thus, if Zervos succeeds in establishing a right to punitive damages, she could, in theory, gain access to Trump's financial records or even his tax returns.

However, both New York law and federal law erect a pretty high standard for such access--a requirement that the information not be obtainable from some other source. Thus, I count as pretty low the likelihood that the Zervos lawsuit leads to public disclosure of Trump's tax returns or other substantial details of his finances.

5) Just before the election, I suggested that the alleged Trump gropees might bring a class-action lawsuit against him for defamation and that if so, their claims would be mutually reinforcing.

But even proceeding solo, Zervos has a good chance of winning if the case goes to trial. She will likely be a credible witness. Plus, she can call as additional witnesses those people (including her father) whom she told about the groping when it occurred under the hearsay exception that allows prior consistent statements into evidence to rebut a charge of recent fabrication.

Although that exception is typically triggered by the suggestion of recent fabrication during cross-examination, it also should apply in a defamation case where the defendant's allegedly defamatory statement consists of stating that the plaintiff recently fabricated her claims about the defendant's past conduct.

Bottom Line : Unless the lawyers for Zervos know something I don't (which I freely admit is possible), filing in state rather than federal court looks like a strategic blunder, given the risk posed by the opening left in Clinton v. Jones . I do not see any great benefits of proceeding in state court sufficient to overcome that risk.

Having said that, the lawsuit also poses very substantial risks for Trump. If Zervos is willing to accept a settlement without admission of liability and with a gag order on the amount, Trump's lawyers would be wise to offer her one.

Of course, this could be just the first of a dozen similar suits, so that approach could prove expensive. But hey, no one ever became president in order to make money, right? Oh, right.

Footnote: In a Facebook comment, one reader noted that the SDNY and the New York County (i.e., Manhattan) jury pools are not co-extensive. The former comprises Manhattan, the Bronx, Westchester, Putnam, Orange, Rockland, and Sullivan counties.

I was aware of that, which is why I said in the original post that the SDNY jury would likely be plaintiff-friendly, even if not necessarily as plaintiff-friendly as the state jury pool. The non-NYC components of the SDNY jury pool are small compared with Manhattan and the Bronx. And Westchester, which is the largest of the non-NYC counties in the SDNY, went 2-1 against Trump.  

Thus, to my mind, the small advantage in jury pool doesn't justify the risk of an immunity ruling or even the delay that an effort by Trump to assert an immunity defense could occasion.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at dorfonlaw.org .