Is Donald Trump above the law?
On March 28, his lawyers responded to a defamation lawsuit from Summer Zervos, who appeared on season five of The Apprentice, and argued that the U.S. Constitution barred her defamation lawsuit while he is in office. Now comes the opposition from Zervos, who claims she was defamed when Trump denied ever meeting her at a hotel or touching her inappropriately.
On Tuesday, Zervos' attorney Mariann Wang told a judge that Trump is free to make the argument that he is immune from a lawsuit in state court, but that the U.S. president's legal tactics amount to much more by flouting civil procedure and demanding a pause on all disclosure in the broadest possible fashion.
"Although [Trump's] papers are at times unclear and seemingly contradictory, it appears that he may be seeking a stay of all disclosure for the duration of his proposed multiple motions to dismiss and through the pendency of all appeals related to the multiple motions," writes Wang. "Such a stay would be unprecedented and if granted, would effectively give Defendant de facto immunity even if he loses that legal argument, by protecting him from this suit for years."
Wang takes issue with the way that Trump's lawyer Marc Kasowitz is going about defending his client in the defamation lawsuit. She writes that civil procedure rules only allow a single motion to dismiss at the outset of a case, but here, Trump wants his immunity tested before then bringing a second motion that's premised on the sufficiency of the complaint. Wang is also concerned about staying disclosure - a potential Trump deposition, exchange of documents, etc. - to allow the president to pursue multiple appeals that could take years. That's why she deems Trump's request as "de facto immunity" even if the judge rejects Trump's immunity argument at the outset.
In court papers last month, Kasowitz pointed to the U.S. Supreme Court's decision in Clinton v. Jones, where the high court refused to give President Bill Clinton immunity. The attorney highlighted how the justices ruled that immunity questions should be decided at the earliest possible stage of the litigation and primed the coming issue of whether a sitting U.S. president has to litigate in a state court.
But Wang responds that the litigation between Clinton and Paula Jones happened in federal court, with a different set of procedural rules, and moreover, Clinton answered the complaint before making a second motion.
Trump "therefore has at least two options," writes Zervos' lawyer (read here). "He may bring all of his legal challenges to the Complaint now in a single motion; or he may bring a threshold pre-answer immunity motion now, and if he loses, make a second dispositive motion after he answers, just like President Clinton did."
Although the latest court papers are mainly focused on procedure - albeit, an important aspect given the stakes of this case - Wang does touch on the argument that Trump doesn't have to litigate while holding office.
"Clinton v. Jones makes clear that this Defendant is not entitled to qualified immunity - or any other species of official acts immunity - because this case involves unofficial conduct by Defendant before he assumed office," states the brief, which later adds that Trump's "unsupported assertion that addressing the legal sufficiency of the Complaint would 'distract' him 'from his public duties' is implausible. Defendant cannot credibly claim that he would have any significant involvement in preparing a memorandum of law challenging the legal sufficiency of Plaintiff's defamation claim."