Employment Law Daily Trump not ‘above the law’: Defamation suit by sexual misconduct accuser (and former job applicant) goes forward
Friday, March 23, 2018

Trump not ‘above the law’: Defamation suit by sexual misconduct accuser (and former job applicant) goes forward

By Pamela Wolf, J.D.

In a case that puts the spotlight of the “MeToo” movement on the White House, a New York state court judge has refused to let President Donald Trump off the hook on a defamation lawsuit filed by a woman who accused him of sexual misconduct in 2007, when she met with him seeking advice and employment opportunities after she was “fired” from The Apprentice. Trump sought either dismissal or to hold the case in abeyance until the end of his presidential term, but the court refused, saying there is no reason to dismiss or delay the civil case, which is related to Trump’s purely private conduct, just because he is the president. The court also found the complaint sufficiently stated a cause of action for defamation.

Sexual harassment allegations. The plaintiff alleges that on one of the occasions on which she met with the president, he kissed her without consent, put his hand on her breast, suggested they lay in bed together, and embraced her. When she pushed him away, saying “get real,” he repeated her words back, pressed his genitals against her, and then tried to kiss her again. The following day, Trump introduced her to the general manager of his golf course, who later that week offered the plaintiff a job at half the salary she sought. The plaintiff allegedly called Trump and told him she “was upset, because it felt like she was being penalized for not sleeping with him.” The plaintiff continued to seek employment with the Trump organization in 2009 and 2010, but she was unsuccessful.

Going public. In 2016, in light of Trump’s election campaign and the now famous Hollywood Access tape, in which Trump bragged about what has been described as his nonconsensual sexual aggression toward women, the plaintiff said she felt compelled to come forward and talk publicly about Trump’s purported sexual misconduct toward her. She said she felt it was her ethical duty to speak out so that the public could fully evaluate his candidacy.

Trump punches back. In response, Trump not only denied her accusations, but he branded her (and the many other accusers alleging nonconsensual sexual touching) a “liar who came forward only for fame or at the manipulation of the Clinton campaign,” among other things, according to the plaintiff. The court’s order details Trump’s many purported public comments and tweets about the plaintiff and the group of accusers to which she belonged.

Trump was elected president three days after the plaintiff filed her complaint. He moved for dismissal or a continuance until he leaves office.

Nobody is above the law. The court began its analysis with these words: “No one is above the law.” Citing the famous Supreme Court case of Clinton v. Jones, the court called it “settled that the President of the United States has no immunity and is ‘subject to the laws’ for purely private acts.” The court also said that nothing in the Supremacy Clause “even suggests that the President cannot be called to account before a state court for wrongful conduct that bears no relationship to any federal executive responsibility.” Rejecting any notion that it could not accommodate the president’s responsibilities, the court continued: “In the end, there is absolutely no authority for dismissing or staying a civil action related purely to unofficial conduct because defendant is the President of the United States.”

Defamation sufficiently stated. The court also denied Trump’s bid to dismiss the complaint, observing that it was based on assertions the defendant made, that if proven false, form the predicate for a defamation action. “A false statement tending ‘to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation,’ the court noted, saying that here, the statements weigh even more heavily against dismissal.

Trump, the only person other than plaintiff who knows what happened between the two of them, had repeatedly accused the plaintiff of dishonesty, not just as opinion but as a matter of fact. He not only said that the plaintiff told “phony stories” and issued statements that were “totally false” and “fiction,” he also insisted that the events “never happened” and that her allegations were “100% false [and] made Up.” A reader or listener, aware that Trump knows exactly what happened, “could reasonably believe what defendant’s statements convey: that plaintiff is contemptible because she ‘fabricated’ events for personal gain,” wrote the court.

The case, Zervos v. Trump, was filed in the Supreme Court of the State of New York, New York County; it is No. 150522/17.

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