An amicus brief filed in a New York court today could cause a major headache for Donald Trump. And it’s all thanks to the Access Hollywood tape and some of the same law professors who helped make it possible for Paula Jones to sue Bill Clinton.
Almost a year ago, on the first Friday in October, The Washington Post published to its website footage of Donald Trump having a little chat with Access Hollywood host Billy Bush. In the 2005 footage, Donald Trump bragged about sexual assaulting women. I don’t even ask, said the future president. I just kiss. He added that he also would “grab them by the pussy.” “When you’re a star, they let you do it.”
He later dismissed it as “locker room talk.”
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It would have been narratively satisfying if the Access Hollywood tape had broken Trump’s presidential bid. But it didn’t. It made a lot of people mad. It encouraged a handful of women to come forward and claim that yes, actually, Trump had done what he bragged about doing on the tape. It led to a month of news cycles featuring pundits from both sides the aisle expressing outrage, both genuine and performative.
Trump fired back at the women’s accusations with accusations of his own. The women accusing him of sexual assault were liars who were going to get sued, he said. The only place Donald Trump sexually assaults women was, apparently, in his imagination.
Despite all this, Trump still won the election. He didn’t sue the women who accused him of doing what he said he did in that tape. All of that “locker room talk” did nothing to derail him.
Well, maybe it did.
As the Russia investigation loudly grinds out headline after headline, a lawsuit filed in New York is quietly poised to cause another big headache to the Trump administration.
Not long before Inauguration day, one of the women who accused Trump of sexual misconduct— former Apprentice contestant Summer Zervos—filed a lawsuit in New York. The lawsuit alleges that Trump defamed her by calling her a liar after she came forward with allegations that he groped her. If the lawsuit were to proceed, it would likely prove embarrassing to Trump, as the case could go into discovery and the president could be compelled to testify.
Trump’s lawyers want the whole thing to go away. They claim that Zervos has no grounds to sue Trump in state court, because he’s the President and the President can’t be sued.
But a group of attorneys dispute this. In an amicus brief filed today in New York, the group claims that Zervos does have standing to sue Trump, just as Paula Jones had standing to sue then-President Bill Clinton. In that 1997 case, the Supreme Court ruled unanimously that because Paula Jones was suing then-President Bill Clinton over conduct that wasn’t part of his official duties and that occurred during a time that he was not president, she could sue him in federal court. Because the law applies to the president, too.
The difference between the Jones case and Zervos’ case is that the Jones ruling stipulates that it only applies to cases filed in federal court, and Zervos’ case was filed in state court. The brief filed today argues that this shouldn’t matter; it says it should be okay for Zervos to sue Trump, because the alleged defamation occurred outside of the scope of Trump’s official duties as president and occurred before Trump was the president. It also claims that such a case would not necessarily interfere with Trump's official duties because Congress could make a law to shield the president, or the court could make reasonable accommodations for him (like allowing video testimony).
Three of the brief’s author’s names might be familiar to executive privilege experts. That’s because law professors Stephen B. Burbank, Richard D. Parker, and Lucas A. Powe Jr. were among the authors of a similar brief filed in regard to Bill Clinton’s legal standing to be sued by Paula Jones in federal court, 20 years ago. The three lawyers are represented by Protect Democracy, a legal group that aims to fight executive branch overreach.
The brief doesn’t take a position on whether the Zervos claim has merit; its authors are more concerned with establishing that the president can’t use “But I’m the president!” as an excuse to make issues like this just go away. “[B]y permitting injured parties to seek redress from a President under appropriate circumstances,” the brief reads, “state courts reinforce a bedrock constitutional principle: that in this nation, no one is above the law.”
On a more practical level, if Trump’s lawyers get their way and the case is thrown out—if the court agrees that the president can’t be sued, simply because he’s the president—that could set a dangerous precedent. Trump faces a host of litigation stemming from his business activities. Some of the issues over which Trump could be sued—contracts, property issues, employment issues, and more—are dealt with in state courts. If the judge disregards the arguments set forth in the amicus brief, that could theoretically give Trump retroactive carte blanche on a variety of alleged misdeeds that could crop up in state courts.
Because the question of whether the president can be sued in state courts has never been answered, this case could spend years working its way through the court system. And at the end of it, we could get another tape of Trump talking on camera, knowing he’s being recorded, testifying about alleged disparagement of an alleged target of sexual harassment.
Even when you’re the president, they make you do it. That’s just courtroom talk.
