Manhattan appellate division justices grilled lawyers for President Donald Trump and an ex-contestant on “The Apprentice” reality TV show over the implications of extending New York state courts’ reach to the occupant of the Oval Office.
Members of the panel at oral argument questioned the breadth of a state court’s authority if it did have jurisdiction over a sitting president, going so far as to consider if it could hold the president in contempt.
Summer Zervos’ defamation suit against Trump, which was filed three days before Trump was inaugurated, explores the relatively uncharted waters of the power of a state court over the country’s highest executive.
Trump, represented in the case by his longtime lawyer Marc Kasowitz, is appealing Manhattan Supreme Court Justice Jennifer Schecter’s ruling in March that the supremacy clause of the U.S. Constitution does not bar a plaintiff from turning to a state court to file suit against the president.
On Thursday, a five-judge panel from the Appellate Division, First Department peppered Kasowitz and Cuti Hecker Wang partner Mariann Meier Wang, lead counsel for Zervos, with questions about the reach of a New York state court into the Oval Office.
“It’s possible to sue a sitting president in New York City small claims court, according to your analysis. Is that correct?” Justice Peter Tom asked Wang during arguments, to which she answered in the affirmative.
The justices also asked Wang if a state court judge could order the arrest of a sitting president for contempt of court. Wang said a president could be held in contempt, but demurred from answering the question of arrest directly, saying there “are many steps” leading to a judge in a civil case issuing a contempt order.
Justices Angela Mazzarelli and Troy Webber also pushed Kasowitz as to how high up the federal ladder a state court’s jurisdiction could reach: could someone sue Vice President Mike Pence in state court, for example?
Kasowitz acknowledged that actions could be brought in state courts against any federal officer except the president, who occupies a special place in the Constitution.
“A state court has no power or no authority under the Constitution” to exercise jurisdiction over the president, Kasowitz said.
Zervos, as California restaurateur and former contestant on “The Apprentice” who was in attendance for the oral arguments, alleges that Trump groped her and subjected her to unwanted kissing in 2007.
Zervos kept quiet about her encounter with Trump until the months leading up to the 2016 presidential election. After she and other women with accusations of sexual misconduct against the then-candidate came forward, Trump refuted his accusers in stump speeches and on Twitter.
Zervos says she was defamed by Trump calling her a liar on Twitter and in campaign events leading up to the 2016 election. She is seeking $3,000 in damages.
“She’s received threats; she’s been called horrific names,” Wang told the First Department justices.
But Kasowitz has argued throughout the case that subjecting the president to a civil suit could interfere with his official duties and told the justices on Thursday that Zervos is suing Trump to make a political point.
“This is a political case,” Kasowitz said. “This was a case brought by the plaintiff to make a political statement.”
Kasowitz and Wang have little in the way of precedent to draw from in the case: their court papers and many of the appellate judges’ questions at oral argument concerned a 1997 ruling by the U.S. Supreme Court finding that President Bill Clinton was not immune from a sexual harassment lawsuit filed in federal court by Paula Jones, who alleged Clinton propositioned her for oral sex in 1991 while he was serving as governor of Arkansas.
Wang noted that Kasowitz has not moved to take Zervos’ case to federal court, arguing that the Supreme Court’s holding in Clinton v. Jones would preclude him from raising the same type of standing issue at the federal level.
“He doesn’t want to face this case,” Wang said. “It’s the only reason he didn’t remove the case.”
A number of the arguments in the case have centered around a single footnote in the Supreme Court’s ruling in Clinton v. Jones, signed by Justice John Paul Stevens, in which the justice said that a state court suit against the president “may implicate concerns that are quite different from the interbranch separation-of-powers questions addressed here.”
Kasowitz Benson Torres attorneys Christine Montenegro and Paul Burgo are also on Trump’s defense team.
Zervos is also represented by Cuti Hecker attorneys John Cuti, Eric Hecker, Daniel Mullkoff and Heather Gregorio.
Justices Dianne Renwick and Cynthia Kern also sat on the First Department panel. The panel reserved judgment on the appeal. While the appeal on the standing issue is under advisement, back in Manhattan Supreme Court, attorneys for Trump and Zervos will continue in their clash over discovery issues.
Zervos’ attorneys have filed a motion to compel Trump to turn over information about other women who have similarly accused Trump of sexual misconduct; Trump’s team has derided the motion as an effort to harass the president and distract him from his official duties.
Zervos argues that other women have come forward will allegations of misconduct that follow a similar pattern to her own experience: Trump would arrange private meetings with the alleged victims and “proceed to kiss them on the mouth and grope them, including by grabbing their breasts, buttocks or vaginas.”
A hearing on the pending motion to compel in scheduled for next week.