Former “Apprentice” contestant Summer Zervos was among about a dozen women who accused Donald Trump of sexual misconduct shortly before the 2016 presidential election. She claimed that Trump forcibly kissed and groped her during a December 2007 encounter at the Beverly Hills Hotel in Los Angeles. Trump denied the allegations and called his accusers “liars,” for which Zervos filed a defamation lawsuit.
But most people are far more familiar with adult-film actress Stormy Daniels’s suit against Trump. While that ugly battle plays out publicly, Zervos’s case has quietly advanced as a possibly more serious legal threat.
Since filing her suit, Zervos and her lawyer, Mariann Wang, have kept low profiles, in contrast to both Daniels and her attorney Michael Avenatti, one of Trump’s most aggressive critics and a possible 2020 Democratic presidential contender.
Three days after Daniels’s libel case against Trump was dismissed in federal court, Zervos’s lawyer argued to a panel of New York appellate judges why they should allow her case to proceed.
“The president does not stand above the law,” Wang said last week during a little-noticed hearing in Manhattan.
“He is also a human being who engaged in unofficial conduct and acts that hurt my client very seriously. We have — she has — the right to bring this action.”
When he dismissed Daniels’s suit last week, U.S. District Judge S. James Otero wrote that Daniels had presented herself as Trump’s “political adversary” and “challenged the legitimacy of Mr. Trump’s victory” in court filings.
Preventing Trump from responding with “this type of ‘rhetorical hyperbole’ . . . would significantly hamper the office of the President,” he wrote.
The decision triggered a crude online spat between Trump, Daniels and Avenatti, who is now appealing the ruling to the U.S. Court of Appeals for the 9th Circuit.
Rod Smolla, the dean at the Delaware Law School of Widener University, said the appearance of political motivation can be dangerous for plaintiffs bringing such claims against public figures.
“It’s a factor that will tend to influence judges in close cases,” Smolla, an expert on defamation law, said. “In the Summer Zervos case, the less that context is in play, the more style points she gets in analyzing the language and treating it as factual.”
Avenatti said there is “nothing that suggests that the amount of media attention had any bearing whatsoever” on Otero’s ruling. He predicted that the 9th Circuit will overturn the decision because “there is no basis for the finding that Stormy Daniels is a political adversary of President Trump.”
Charles Harder, an attorney for Trump, said Otero’s ruling “is correct on the law, is likely to be upheld by the appellate courts, and does not appear to have taken into account any of Mr. Avenatti’s ridiculous out-of-court statements.”
Legal experts said the Zervos and Daniels cases have unfolded in different ways not only because of the attorneys’ contrasting styles, but also because of their distinct fact patterns and the differing state laws at play.
One major difference: Trump’s language and how many verbal attacks he launched against each woman.
In Zervos’s case, Trump made more than a dozen statements claiming the charges that she and other women levied against him in 2016 were made up.
In Daniels’s case, Trump posted a single tweet calling her claim that she was threatened to keep quiet about their alleged affair a “total con job.” Trump has denied the affair.
Experts said judges will look closely at Trump’s language. If he said something that is provable as true or false, his comments could be considered defamatory. But if his remarks are considered “rhetorical hyperbole,” they are protected by the First Amendment, experts said.
In ruling against Daniels last week, Otero called the “total con job” tweet a “one-off” comment and said it was protected speech. He applied a statute intended to stop frivolous or bullying defamation lawsuits in Texas, where Daniels lives.
New York Supreme Court Justice Jennifer G. Schecter came to a different conclusion when she ruled for Zervos in New York state, where the statute to curb certain defamation suits is much narrower.
Trump’s statements “cannot be characterized simply as opinion, heated rhetoric or hyperbole,” she wrote in March.
That ruling is now under review by an appeals court.
Inside a Manhattan courtroom last week, Kasowitz said Zervos brought her case “to make a political statement” and argued that Trump cannot be sued for unofficial acts in state court while he is president.
The dispute centers on the U.S. Supreme Court’s ruling in Clinton v. Jones, which established that presidents can be sued for unofficial acts while in office. Kasowitz argued that the decision, which involved a case brought in federal court, does not apply to actions brought in state court.
Several judges on the panel appeared to view his claim with skepticism.
“How does allowing this suit to proceed interfere with federal powers or federal responsibilities?” one judge asked.
Kasowitz, citing case law, replied: “The exercise of any jurisdiction over a party is control over that party, and that’s certainly the case here.”
The two sides are scheduled to appear before Schecter on Friday to discuss several matters, including whether Trump is required to provide Zervos with documents related to other women’s sexual assault allegations against him.