Top NY Court Keeps a Pin in Zervos-Trump Defamation Suit

(CN) — Still deciding whether President Donald Trump can be sued for defamation while still in office, New York’s highest court refused Tuesday to let former “The Apprentice” contestant Summer Zervos dig for evidence in the meantime.

The order — part of an unassuming list released Tuesday — means that it will be months at least before the case advances. Zervos sued Trump three years ago, just before his inauguration, for calling her a liar and opportunist after she came forward with sexual assault allegations at a time when the infamous “Access Hollywood” tape had wounded Trump’s campaign.

Summer Zervos, left, and her then-attorney Mariann Wang speak to reporters outside a New York appeals court on Oct. 18, 2018. (AP Photo/Mary Altaffer)

Trump in January got the case put on hold, pending a determination from the New York Court of Appeals as to whether the case should be delayed until he’s out of office. Lawyers for Zervos sought permission to gather evidence and potentially depose the sitting president, but the Albany-based high court refused Monday to vacate the stay.

Zervos claims Trump assaulted her in 2007 at his Beverly Hills Hotel bungalow. At the time Zervos was a 30-year-old California restaurateur who had met the future president when she appeared on the fifth season of his reality show, which filmed in 2005 and aired in 2006.

The defamation suit filed in Manhattan Supreme Court says Trump “ambushed” Zervos on “more than one occasion” — repeatedly kissing her on the mouth, touching her breast and pressing his genitals up against her.

“Ms. Zervos never consented to any of this disgusting touching,” her 20-page complaint states. “Instead, she repeatedly expressed that he should stop his inappropriate sexual behavior, including by shoving him away from her forcefully, and telling him to ‘get real.’”

Zervos went public with high-profile women’s rights lawyer Gloria Allred by her side. She was one of more than a dozen women who brought such allegations in the month before the 2016 presidential election, after a 2005 video came to light showing Trump boasting to “Access Hollywood” that he could grope women because of his celebrity.

“I don’t even wait. And when you’re a star, they let you do it, you can do anything. Grab them by the pussy,” Trump told the show’s cackling then-host Billy Bush.

After Zervos shared her story, Trump tweeted that the allegations were “made up events THAT NEVER HAPPENED,” “100% fabricated and made-up charges,” and “made up stories and lies.”

Trump insisted that “every woman lied when they came forward to hurt my campaign, total fabrication. The events never happened.”

Zervos in the court filing took umbrage at Trump’s allegation that all she seeking “ten minutes of fame.”

In addition to damages, she wants a retraction and an apology.

Trump’s defense against Zervos’ defamation claims has hinged on an article of the U.S. Constitution, commonly referred to as the Supremacy Clause, which his attorney say bars any state court from exercising jurisdiction over the president.

In filings seeking to have the case dismissed or delayed while Trump is the sitting president, attorney Marc Kasowitz wrote that litigating Zervos’ defamation suit would constitute impermissible “direct control” over the federal government.

Before it agreed to stay the case this past January, New York’s First Department appeals court ruled 3-2 that the case should proceed because it found Trump as president was “not above the law.”

This earlier ruling called Zervos’ case “materially indistinguishable” from one in which former Arkansas state employee Paula Jones accused then-President Bill Clinton of sexual harassment. The U.S. Supreme Court allowed Jones’ case go forward in 1997, and Clinton was impeached the next year.

Kasowitz wrote in a March 9 brief that extending temporary immunity to Trump while in office does not place the president “above the law,” saying the alternate conclusion conflicts with Clinton v. Jones, in which the Supreme Court “specifically … noted that the president ‘does not contend the occupant of the Office of the President is ‘above the law’… [but] argues merely for a postponement of the judicial proceedings that will determine whether he violated any law.’”

“In short, affording the president temporary immunity in no way places the President ‘above the law’ any more than the absolute immunity afforded Judges places them ‘above the law,’” Kasowitz wrote in a 30-page brief.

From January 2017 through December 2019, Zervos was represented by attorney Mariann Wang from the firm Cuti Hecker Wang. Beth Wilkinson with the Washington firm Wilkinson Walsh leads the case now.

Attorneys for both parties did not immediately respond to requests for comment Tuesday.

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