When Summer Zervos, a former contestant on “The Apprentice,” first made sexual misconduct allegations against then-presidential candidate Donald Trump at a press conference in October 2016, it was likely the statute of limitations would preclude litigation over the nine-year-old claim that he tried to force himself on her at a 2007 meeting at the Beverly Hills Hotel.
Then, Trump denied details of Zervos’ account. He said she and other accusers were telling stories that were “100 percent, totally and completely fabricated,” and even threatened to sue “all of these liars.” More recently, Trump called the reasons for Zervos’ efforts to subpoena campaign records “fake news” and “made up stuff.” In late October, his press secretary, Sarah Huckabee Sanders, was asked if all of Trump’s accusers were lying.
“Yeah,” Sanders said.
Trump’s denials have more or less reset the clock on Zervos’ claims, allowing her to sue him for defamation and draw the allegations back into a public court of law. Representatives for Zervos say her reputation is at stake, harmed by the idea that she made up her story or was seeking attention.
In court documents, Zervos, now a restaurant owner in Huntington Beach, Calif., said that after Trump called her a liar, she was “threatened, bullied and saw my business targeted.”
Zervos is not the first accuser to bring a defamation suit against a public figure based on their denial of a sexual misconduct claim. But, says Brian Markovitz, labor and employment attorney at Joseph, Greenwald & Laake in Maryland, “what is new is that [the suits are] getting coverage.”
Still, defamation lawsuits are hard to win, and they’re expensive, Markovitz explains. They’re less useful to the average woman on the street who works a typical job, he continues, since defendants in those cases generally aren’t wealthy or well known, nor do they have the ability to pay a significant damage claim.
But the stakes are different when a woman’s credibility is being challenged on a national scale. “Her damages could be very extensive because she has been humiliated and called a liar in the national media,” Markovitz says.
A number of accusers of Bill Cosby sued for defamation after his denials of their claims of sexual assault. Results, though, have been mixed. A federal court in Massachusetts upheld a defamation case brought by Tamara Green and other Cosby accusers, but an appellate court agreed that a suit brought by actress Kathrine McKee should be tossed.
McKee claims Cosby raped her in 1974. But the appellate judges deemed her to be a public figure, setting a higher threshold for her to prove her case.
Zervos went public with her allegations at a press conference with her lawyer, Gloria Allred, and she may also face a higher threshold in proving defamation. But her suit seems to be prepared for such a possibility: Her attorneys claim Trump “intentionally and maliciously” disregarded “the impact that repeatedly calling them liars would have upon their lives and reputations.”
Trump’s legal team is challenging Zervos’ lawsuit on several fronts. It claims a state court cannot hear a claim against a sitting president, and that, in any case, the lawsuit should be put on hold while he is still in office. Trump’s lawyer, Marc Kasowitz, said in court filings that the lawsuit is “politically motivated” and that Trump’s denials are protected political rhetoric.
“Political statements in political contexts are non-actionable political opinion,” Kasowitz wrote, adding that such “expected fiery rhetoric, hyperbole and opinion” is protected speech. He repeated those arguments in a recent court hearing.
Zervos’ attorneys say she came forward “to report the details of [Trump’s] unwanted sexual battery only after he repeatedly lied publicly about his behavior.” They add that the “defendant then used his international bully pulpit to violate her for a second time.”
Jessica Levinson, a professor at Loyola Law School in Los Angeles, notes that Trump is using the First Amendment to defend what he said. “It’s really difficult to draw that line between speech that is protected and speech that isn’t,” she said.
The judge is expected to rule on whether the case can go forward by the end of this year. Should that happen, it would be a bombshell of a legal battle in which not just Zervos but other Trump accusers are deposed, and perhaps the president himself. Against a growing deluge of sexual harassment claims that have been made against a host of powerful public figures who have been fired or forced to resign from their positions, the case against the president would take the spotlight.
Markovitz says the Zervos case is really “a sexual harassment trial within a defamation lawsuit,” and that Trump’s shoot-from-the-hip mentality is not helping him legally.
“He is not stating it’s his opinion she is a liar,” he says. “He is stating she is a liar. … The problem [his legal team is] going to have is there’s a videotape” of him saying it.