“False stories. All made up. Lies. Lies. No witnesses. No nothing. All big lies,” Trump declared at a rally after Summer Zervos, who had been a contestant on his reality television show, made a statement alleging that Trump kissed and groped her in a 2007 encounter at the Beverly Hills Hotel.
“Total fabrication,” he told a cheering crowd in Gettysburg, Pa. “The events never happened. Never. All of these liars will be sued after the election is over.”
The defamation suit filed in January in New York State Supreme Court by Zervos, a short-lived contestant on “The Apprentice,” has reached a critical point, with oral arguments over Trump’s motion to dismiss scheduled for Tuesday, after which the judge is expected to rule on whether the case may move forward.
Zervos was chosen in a national search for Season 5 of “The Apprentice.” But Trump fired her abruptly at the end of the first episode.
Zervos came forward after The Washington Post’s publication in October 2016 of an “Access Hollywood” video with audio of Trump bragging about grabbing women’s genitals. She issued a statement Oct. 14 alleging that Trump kissed her when she visited him at Trump Tower in December 2007and that he kissed her, groped her breast and “began thrusting his genitals” when he invited her to join him for dinner later that month in a bungalow at the Beverly Hills Hotel.
In a November 2016 statement, Zervos described repercussions after Trump accused her of untruthfulness. “After he called me a liar I was threatened, bullied and saw my business targeted,” she said, asking for a retraction of his statements about her and other women.
Two months later, she filed suit.
Zervos is represented by Gloria Allred and her New York based co-counsel, Mariann Meier Wang, who declined to make Zervos available for questions.Allred says she represents Zervos pro bono on her website, where she appeals for donations to pay Zervos’s other legal expenses and says excess contributions will go to rape crisis centers.
If the suit goes to trial, Zervos’s attorneys could gather and make public incidents from Trump’s past and Trump could be called to testify, with the unwelcome specter of a former president looming over him: It was Bill Clinton’s misleading sworn testimony — not the repeated allegations of sexual harassment against him — that eventually led to his impeachment.
The use of defamation to litigate an underlying allegation of sexual misconduct addresses other challenges: Often, the statute of limitations is up before accusations come to light; in some instances, the he-said-she-said nature of the testimony makes accusations hard to prove.
In 1997, a Supreme Court ruling made it possible for a sitting president to be sued for private actions that occurred before he took office. Trump’s attorneys are arguing that Clinton v. Jones, which applies to federal litigation, does not apply in state courts.
Trump’s unusual status, as a candidate and then a sitting president, is not the only complicating factor. Zervos may also face special scrutiny as a former contestant on Trump’s show.
The burden of proof lies with the plaintiff. To show Trump defamed her, she must first demonstrate that her allegations against him were accurate.
If she is deemed a private citizen, Zervos simply would have to show that Trump was negligent toward the truth. If she is a public figure, the bar is far higher.
“She would have to prove he knew [what he said] was false or had reckless disregard for the truth,” said Lee Levine, senior counsel at the law firm Ballard Spahr.
Some experts suggest that the suit could surface one of the mysteries of the 2016 campaign — unused footage from “The Apprentice.”
The stakes for the president go beyond sexual misconduct or defamation: If the judge decides the case cannot proceed, the ruling could stymie attempts to bring other civil suits against Trump in state courts. If, on the other hand, the suit does proceed, it could encourage more litigation against a president who entered office with an unusual array of lawsuits in his wake.
And if Zervos wins, her victory could embolden other accusers.