Wednesday, July 12, 2017

Would Trump's Defense In The Zervos Case Be Stronger If He Had Groped More Women?

by Michael Dorf

My new column on Verdict examines an argument set forth in the memorandum in support of the motion to dismiss that President Trump's lawyers have filed in the Summer Vervos case. Vervos, recall, is a former contestant on The Apprentice who sued Trump in January for defamation based on his calling her a liar. The allegedly defamatory statements were contained in Trump's response to the women who came forward contending that Trump had at one time or another acted towards them in ways much like what he described to Billy Bush on the infamous Access Hollywood recording. Trump repeatedly stated that his accusers were not merely mistaken but that they were liars.

The argument my Verdict column considers is Trump's contention that calling his accusers liars was mere hyperbole and fiery rhetoric that cannot be actionable because, in the context of a heated political campaign, these statements were opinion rather than claims of fact. I conclude that Trump's arguments on this point are weak.

Here I want to address two of Trump's other arguments made in the dismissal brief. First I'll revisit the contention that Clinton v. Jones--which allowed a damages action by a private plaintiff for pre-presidential conduct to go forward against a sitting president--does not apply in state court. Second, I'll consider the contention that Trump cannot be held accountable for defamation because the allegedly defamatory statements do not mention Zervos by name.

1. Does Clinton v. Jones apply in state court?

As numerous commentators (including yours truly) anticipated, the Trump dismissal brief cites footnote 13 of the Jones case, where Justice Stevens, speaking for the Court, held open the possibility that a president sued in state court might be entitled to the temporary immunity that the Supreme Court found he lacked when a defendant in federal court. Unsurprisingly, the Trump lawyers run with this suggestion, arguing that yes indeed, the Supremacy Clause bars state court lawsuits against a sitting president, even for pre-presidential conduct.

As I acknowledged in a column in May, state courts may indeed be a sub-optimal forum for the adjudication of claims for money damages against a sitting president. After all, the president is a national official, whereas state judges are accountable to the law (and in some states the voters) of their respective states.

Yet that argument proves too much. Precisely because state judges might undervalue federal interests, since the Supreme Court's 1871 ruling in Tarble's Case, which denied that state courts could grant writs of habeas corpus against federal officers, it has been generally believed that the Supremacy Clause prevents state courts from granting all forms of injunctive relief against federal officers. However, the Supreme Court has routinely approved of state courts adjudicating damages actions--like the one Zervos brings--against federal officers.

Ah, but the president is different, isn't he? In a word, no. The worry that state courts will undervalue federal interests has been present in all of the cases against federal officers. And yet there has never been any serious argument that the Supremacy Clause strips state courts of the power to hear damages actions against federal officials other than the president. If one thinks that the president is different from other federal officials in some way, that would justify some form of immunity for the president regardless of where he is sued. But that is precisely the argument that the Supreme Court rejected in the Jones case.

In Jones, the Court acknowledged that there could be sub-constitutional reasons of policy for granting a sitting president temporary immunity against private damages actions for pre-presidential conduct, but said that it is for Congress to make that policy decision. The same logic applies here. If Congress determines that sub-constitutional considerations of national uniformity justify some form of immunity, it could grant such immunity, either by amending the removal statute to ensure that any litigation occurred in federal court, or by granting the temporary immunity that President Clinton unsuccessfully sought.

2. Should Zervos Lose Because Trump Didn't Defame Her By Name?

The Trump dismissal brief argues that many of the statements that Zervos invokes as defamatory do not name or refer to her and thus cannot be the basis for a defamation claim under California law. The brief is arguably correct about some of the allegedly defamatory statements, but seems clearly wrong about others.

First, let's just note that California law (which Trump's lawyers say applies to the case) does not require that a defamatory statement refer to its object by name, so long as it identifies her. And surely a photograph of the person being referred to counts. Hence the following from the Zervos complaint:


Now, the Trump brief says this particular tweet cannot be the basis of liability, citing authorities limiting defamation liability for retweets. But even assuming that Trump is right about that, the fact that Trump specifically identified Zervos in this tweet strongly undermines the claim that his other statements were so generic that they were not directed at her.

Consider this statement--included in the Zervos complaint--that Trump made at an October 26, 2016 rally in Gettysburg: "Every woman lied when they came forward to hurt my campaign, total fabrication. The events never happened. Never. All of these liars will be sued after the election is over." Just two days earlier, CNN had counted eleven women who had accused Trump of some form of sexual harassment or worse. One of those women was anonymous, so we cannot treat Trump's Gettysburg statement as referring to her, but it undoubtedly refers to all of the other ten, including Zervos.

How could it not? We can imagine a statement that refers to so many people as not to count as defamatory under the Trump lawyers' theory. Suppose that Trump had said "all women who accuse men of groping them are lying." Even though the category "all women" obviously includes Zervos, neither she nor any other woman would have a defamation claim against Trump based on that hypothetical statement, mostly because it refers to so many women that it effectively refers specifically to none.

But to state the obvious, when, as here, "every woman" that "came forward" refers to only ten women, one of whom is undoubtedly Zervos, there can be little doubt that the statement refers to her, even without the evidence of other statements and Tweets that identify her by picture and, as in another retweet, by her first name.

Bottom Line: For this argument to work for Trump, hundreds or even thousands of women whom he harassed and groped would have had to have come forward, not a mere ten named ones. How unlucky for Trump that more did not!

11 comments:

Shag from Brookline said...

This is not a "group libel" defense. And it might not be even if "hundreds" may have come forward and accused pre-presidential Trump's actions. Proving damages would be more difficult with a larger number of accusers. Group libel would be involved with Mike's posit: " Suppose that Trump had said 'all women who accuse men of groping them are lying.'"

With respect to Trump's threat to sue this small group of women after the election, no such actions have taken place. Perhaps Trump would have done so if he had not won the general election. Query: As President would there be legal obstacles to a President Trump suing these women for lying? If President Trump had sued these women, then they might have cross-complained, which might suggest why President Trump did not follow up on his promise to his supporters.

Joe said...

"As President would there be legal obstacles to a President Trump suing these women for lying?"

In what sense?

Michael C. Dorf said...

Joe: I think the following idea is implicit in Shag's question: Let's suppose that Clinton v. Jones either doesn't apply in state court or is about to be reversed, so that Trump has some sort of immunity against the women's lawsuits. If Trump were to sue one or more of them, then by submitting the dispute to court in the posture of a defendant, he could be said to have waived his immunity to counterclaims.

Joe said...

Okay. The word "obstacle" threw me a bit but can see it used that way.

Stuart McPhail said...

Also an interesting analogy to draw between this argument and Trump's argument against the use of his tweets in the case over his Muslim ban. Wrote a blog post about that here:

https://www.citizensforethics.org/campaign-secrecy-group-wrong-argue-first-amendment-keeps-presidents-tweets-courts-eyes/

I pointed to the fact that the argument could immunize a presidential candidate's defamation of a private person--of course, point was to identify an absurdity that undermined the argument, not predict Trump's next legal filing.

Asher Steinberg said...

I guess what worries me, prudentially, about suit in the state courts is the possibility of a runaway state-court jury awarding an excessive, but constitutionally permissible (at least in the view of the state supreme court, and even that wouldn't matter absent a stay pending appeal) amount of punitive damages for political reasons -- which I don't see as quite as serious a concern in suits against more workaday federal officers -- with very limited possibilities for federal review; I don't know how interested the Court would be in looking at a punitive-damage award in a libel suit just because of the status of the defendant and a high, but not incredible multiplier. What if the current President were someone like Clinton himself, who wouldn't have been able to pay a seven-figure judgment until he got his book deal? What does execution on a large judgment look like with a sitting President? Now, you're probably right that this isn't a constitutional argument and is for Congress to address, but I don't really have a problem with courts constitutionalizing this sort of prudential concern so long as it's powerful enough. That's probably just an idiosyncrasy of mine, so bracket that, but a more interesting point may be this.

Suppose a state court thinks that Clinton v. Jones was wrongly decided and that the Court would overrule it today. I'll stipulate that it can't predictively overrule the case, cf. the (utterly non-binding and unreasoned) dictum in Rodriguez de Quijas, but can it not non-friviolously narrow a case it deems wrong and vulnerable to overruling even if that narrowing may not be the best reading of the case? This ties in, indirectly, to the interesting colloquy between Litman and Solum on second-best originalism, Humphrey's and the CFPB. I am inclined to think that if a court believes a case is wrong, it can and maybe even should distinguish it on points that that case explicitly left open, as Clinton v. Jones left the state-court question open.

Boris Dimshofsky said...

Mr. Dorf is a socialist, progressive, radical left-winger, likely an outright communist and likely a Islamic sympathizer. I put up with Obama, a enemy of all that is America, a Sunni muslim/communist. Focused on the complete destruction of America. His EOs were treasonous and unconstitutional in all cases. He was an outright traitor deserving of a trial and execution. He killed hundreds of thousands or more of Americans, Jews, middle-easterners of all titles. A complete criminal as was the bitch Clinton. I put up with their treason, crimes against humanity, and ruination of MY country for 4 years. I did not riot, burn, destroy. Trying to keep this civil and it most difficult. Don't intend to go "academic" in this post. Simply you show yourself to be a complete secular Jew hating Jes and an anti-American. I would not piss up your ass if your guts were on fire. It is you and those like you who wish to destroy America and establish a totalitarian state. So I will sign off with.....fuck you and all like you. I am damn near wishing for a civil war for the opportunity to waste dregs and dreck like you.

Boris Dimshofsky said...

Mr. Dorf is a socialist, progressive, radical left-winger, likely an outright communist and likely a Islamic sympathizer. I put up with Obama, a enemy of all that is America, a Sunni muslim/communist. Focused on the complete destruction of America. His EOs were treasonous and unconstitutional in all cases. He was an outright traitor deserving of a trial and execution. He killed hundreds of thousands or more of Americans, Jews, middle-easterners of all titles. A complete criminal as was the bitch Clinton. I put up with their treason, crimes against humanity, and ruination of MY country for 4 years. I did not riot, burn, destroy. Trying to keep this civil and it most difficult. Don't intend to go "academic" in this post. Simply you show yourself to be a complete secular Jew hating Jes and an anti-American. I would not piss up your ass if your guts were on fire. It is you and those like you who wish to destroy America and establish a totalitarian state. So I will sign off with.....fuck you and all like you. I am damn near wishing for a civil war for the opportunity to waste dregs and dreck like you.

Boris Dimshofsky said...

Mr. Dorf is a socialist, progressive, radical left-winger, likely an outright communist and likely a Islamic sympathizer. I put up with Obama, a enemy of all that is America, a Sunni muslim/communist. Focused on the complete destruction of America. His EOs were treasonous and unconstitutional in all cases. He was an outright traitor deserving of a trial and execution. He killed hundreds of thousands or more of Americans, Jews, middle-easterners of all titles. A complete criminal as was the bitch Clinton. I put up with their treason, crimes against humanity, and ruination of MY country for 4 years. I did not riot, burn, destroy. Trying to keep this civil and it most difficult. Don't intend to go "academic" in this post. Simply you show yourself to be a complete secular Jew hating Jes and an anti-American. I would not piss up your ass if your guts were on fire. It is you and those like you who wish to destroy America and establish a totalitarian state. So I will sign off with.....fuck you and all like you. I am damn near wishing for a civil war for the opportunity to waste dregs and dreck like you.

Shag from Brookline said...

In baseball, it's 3 strikes and you're out. Same for a blog?

Joe said...

The Supreme Court in the past repeatedly dealt with concerns regarding punitive damage, limiting the multiplier, and concerned with what it deemed illegitimate considerations. Its concern for executive discretion and First Amendment issues would suggest there is a reasonable shot it would be concerned with the issues there.

The concern about unpopular plaintiffs might arise in any number of lawsuits, including those without such direct First Amendment issues. Trump could have been in an automobile accident or one of his buildings might have led to a civil lawsuit. I don't know if he has holdings there, but Bronx juries are somewhat infamous in respect to high judgments. I'm also not sure if some NYC federal jury would act differently, if the jury is our concern.

As to execution, the length of litigation including appeals might make executing a judgment during office avoidable, but somewhat unsure what the problem is there. A President has a sizable salary alone that some other defendant would not have in respect to offering payment. Various types of equity relief in particular should be less of a problem though others might raise special concerns.

Legislative line drawing there would seem best except for the reasonable discretion Clinton v. Jones leaves open to deal with special concerns as could arise for various defendants.

As to distinguishing, that's a reasonable position, especially for a case with a wide scope. The question then is how sound the differentiation is, all things considered. Possibilities and mere disagreement isn't enough there.