Outside the Beltway

New York Appeals Court Denies Trump Request To Stay Defamation Lawsuit

Trump suffered another court loss yesterday that opens him up to some potentially embarrassing questions.

Doug Mataconis · Friday, May 18, 2018 · 18 comments

A New York state appeals court has denied a request by attorneys representing President Trump to stay a civil suit filed against the President by a former contestant on The Apprentice who was among the women who stated that Trump had sexually harassed her during the time she was on the show:

A New York appeals court on Thursday rejected a request from President Trump to stay proceedings in a defamation suit filed by a former contestant on “The Apprentice” who has claimed that he sexually harassed her.

The ruling on Thursday is a legal setback for Trump, who is facing multiple lawsuits focused on allegations women have made against him as well as his public comments about those women. It could open him up to discovery in the case, although he could also file further appeals to try to delay proceedings.

Trump’s attorneys sought a temporary halt in the case filed by Summer Zervos — who has accused him of groping and forcibly kissing her — while they awaited word on their appeal of a judge’s ruling this year that Zervos’s defamation lawsuit could proceed. Zervos sued Trump for defamation after he denied her accusations, along with those of other women who accused him of unwanted sexual contact before he was elected president. He called them all “liars.”

Attorneys for the president have argued that he was expressing a political opinion and could not be sued in state court while in office. But New York Supreme Court Justice Jennifer G. Schecter dismissed these claims in an opinion issued March 20, writing: “No one is above the law.”

Trump appealed that decision not long after, saying she was mistaken in not dismissing or staying the case, and his attorneys sought to defer proceedings while the appeal is pending. The Appellate Division of the New York Supreme Court denied that request on Thursday, describing it as seeking “a stay of the action pending hearing and determination of” Trump’s appeal of Schecter’s order.

Marc Kasowitz, an attorney for Trump, called the appeals court’s decision incorrect, citing an earlier case against President Bill Clinton that stemmed from a sexual harassment claim. Kasowitz wrote in an emailed statement that it was “completely and unjustifiably contrary to the stays the courts uniformly granted when deciding whether a lawsuit against President Clinton could proceed in federal court.”

“There is no valid reason in this case — in which plaintiff is seeking merely $3,000 in damages, and which plaintiff’s counsel has repeatedly insisted was brought for political purposes — for the Court not to grant the requested stay in order to take the time to first decide the threshold Constitutional issue that is at stake,” he continued.

Kasowitz said that the case raises what the U.S. Supreme Court has called an “important” and unresolved constitutional issue — whether the Constitution’s Supremacy Clause bars a state court lawsuit against a president while in office.

Mariann Meier Wang, an attorney for Zervos, noted Thursday that the appeals court ruling marked the second time a court has rebuffed the president’s attempt to stay the case, after Schecter also denied such a request.

“We look forward to proving Ms. Zervos’s claim that [Trump] lied when he maliciously attacked her for reporting his sexually abusive behavior,” Wang said in a statement.

I can’t speak to New York law specifically, but as a general rule whether or not a civil case such as the one Zervos has filed should be stayed pending the appeal of a ruling such as the one Trump’s lawyers are appealing here is generally left to the discretion of either the trial court Judge or the relevant court of appeals. It’s not clear from the record whether or not Trump and his attorneys ever attempted to make such a stay request at the trial court level, but it’s not unusual to make the request there and then, if it is denied, at the appellate court level while the appeal is pending. In this case, the ruling is significant in that generally speaking, one of the factors that an appellate court will consider in connection with a stay request is whether it appears that the appellant, who in this case is President Trump, has at least a reasonable chance of succeeding on the merits of their appeal. The fact that they denied the request, therefore, isn’t exactly a good sign for the prospects of the appeal itself.

As I noted in my post about the Court ruling that is the basis for the appeal, the argument being made by Trump’s attorneys seems to be incredibly weak based on existing precedent:

The primary legal issue in the case, whether or not a sitting President can be sued in state court while in office, was really pretty much the legal equivalent of a “no-brainer” thanks to a U.S. Supreme Court decision dating back more than twenty years ago to the Clinton Administration. In Clinton v. Jones, a decision handed down by the Supreme Court in 1997, a largely unanimous Court ruled that a Federal Court civil case brought against former President Bill Clinton by Paula Jones for events that occurred while he was Governor of Arkansas and she was a state employee could proceed forward notwithstanding the fact that the Defendant is the sitting President of the United States. Jones, of course, had filed a lawsuit alleging that Clinton had sexually harassed her in an incident dating back to 1991, claiming that Clinton had her summoned and proceeded to proposition her and engage in other behavior of a sexual nature.

In its ruling, the Supreme Court ruled that the fact that Clinton was President of the United States does not, on its own, grant him any kind of immunity from civil lawsuits for conduct that occurred prior to the time he became President, nor does it require a court hearing such a case to put the case on hold until after the President has left office. To the extent any such immunity existed, it could be found in a concurrence filed by Associate Justice Stephen Breyer in which he stated that there could be some circumstances where a President could seek to delay a civil lawsuit from going forward if it could be shown that responding to and participating in the lawsuit could somehow be shown to interfere with official Presidential duties. Breyer was careful to note, though, that such circumstances would seem to be quite limited and that, in any case, they did not exist with the underlying lawsuit in Clinton v. Jones. Thus, the lawsuit went forward, which of course led directly to a deposition in which Clinton lied under oath about his relationship with Monica Lewinsky, which led directly to a crisis that consumed much of the last two years of Clinton’s Presidency.

The only significant difference between Clinton v. Jones and the Zervos case is that the Jones case was filed in a Federal Court, while Zervos chose to file her case in state court. As a matter of law, this doesn’t seem to me to be a significant enough difference to defeat the underlying ruling in Jones that says that a sitting President is not immune from civil suits. On the face, though, this is clearly a distinction without a difference. The President is capable of hiring competent counsel to represent him in both situations, for example, and given the fact that civil lawsuits don’t generally require a defendant to be present for pre-trial hearings or anything not related to the presentation of evidence and testimony. Given that, it’s hard to see the difference between a civil suit in a Federal court and one filed in a state court in New York City. Additionally, it’s worth noting Trump’s attorney potentially had the option of removing this case to Federal Court when it was first filed. The fact that they didn’t do so is a strong rebuttal to any argument that a civil proceeding in state court is any more disruptive to the business of the President than a proceeding in a Federal Court in Arkansas was.

The most significant thing about this, of course, is that it means that Zervos and her attorneys can now move forward with discovery against the President. This could include everything from requiring the President to answer written questions and provide documents relevant to the case, requiring him to submit at some point to a deposition at which he would be under oath, and to seek depositions from outside parties that could have information relevant to the case. Given the nature of the claims that Zervos has raised and the underlying facts, the scope of questioning could end up being quite broad and will no doubt be the subject of significant pre-trial fighting between and among the attorneys. In civil cases, though, the scope of acceptable discovery tends to be rather broad, meaning that Zervos’s attorneys could potentially ask Trump about the claims made by other women regarding sexual harassment claims, affairs, and other sexual improprieties on Trump’s part. This, of course, is why the attorneys for Paula Jones were able to ask President Clinton about his relationship with a certain White House Intern during the government shutdown in 1995 and 1996, and we all know where that led.

Trump’s attorneys could seek to appeal this denial of their stay request to the New York Court of Appeals, the highest level appellate court in New York, but it seems unlikely that court will act where the lower courts have not. This means that Trump will likely face a very interesting summer where he finds himself dealing with legal problems on both the civil and criminal side of the ledger even as his party tries to maintain control of Congress. In the minds of his supporters, of course, these issues are hardly going to matter. For those who are already skeptical of his Presidency, though, it’s likely to be yet another factor that could motivate them to come to the polls. If that happens, then things could get quite interesting in the fall.