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!