A Woman's Word V President

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A Woman’s Word v. President

Implications of Defamation Cases Regarding Sexual Misconduct Against Sitting Presidents
Summer Zervos’ and Donald Trump’s relationship began on Trump’s TV program, The
Apprentice. Following her appearance on the show, Zervos and Trump maintained a business relationship.
In 2007, Zervos met Trump in New York for a business meeting, where she alleges that he kissed her on
the lips repeatedly, making her feel “nervous and embarrassed.”1 Several months later, Zervos attended
another business meeting at the Beverly Hills Hotel regarding a managing job she was seeking at the
Trump Golf Club. However, Zervos reports that she was escorted to Trump’s bedroom where he kissed
her, aggressively handled her, and placed his hand on her breast. Zervos alleges that she tried to push him
away, but he pressed his genitals against her and mocked her resistance in a lascivious tone.2 The next
day, Zervos met Trump at the golf course, where she says Trump hardly engaged with her, and she was
offered the manager position at half the salary she had anticipated. Zervos suspects that the salary
reduction was a result of her refusal to engage with Trump. Zervos says that she called her father as soon
as she left to report the events that had occurred.3
In 2016, promptly after Trump was chosen as the GOP Presidential Candidate, an Access
Hollywood tape was released that showed Trump speaking predatorily and sexually about women. Amidst
the aftermath of the tape, Zervos decided to speak publically about her interactions with Trump, as she
felt an obligation to inform the American public about their presidential candidate.4 Following Zervos’
statement, Trump posted several tweets and made remarks at campaign speeches that dismissed Zervos’
claim as “totally false” and “fabricated”, alleged that the women who spoke out against instances of
sexual misconduct as liars, and accused Zervos of only speaking out due to political manipulation by the
Clinton campaign. Zervos filed for defamation, saying that being called a liar and accused of only
speaking due to political motivation caused her both emotional and financial distress. She asserts that
1
Zervos v. Trump, 2018 N.Y. Misc. LEXIS 900; 2018 NY Slip Op 28082
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3
4
2
Trump’s statements were knowingly false and demonstrate reckless disregard for the truth. Three days
after Zervos filed suit, Trump was elected President and moved to dismiss the case until he leaves office.5
In the New York Supreme Court, Judge Jennifer G. Schechter dismissed Trump’s request to delay
the case, and refuted Trump’s lawyer’s argument that a state court did not have jurisdiction over the
President. She acknowledged Trump’s concern that a lengthy case would need to be balanced with
presidential responsibilities, and assured him that the case would work around the President’s schedule. In
her argument, Schechter cited Bill Clinton’s sexual misconduct defamation case, and reiterated that
litigation on private matters does not and should not interfere with the president’s ability to fulfill
executive duties.6 She also reminded Trump of Clinton’s cooperation on a similar case regarding private
matters.7 She held that the President is not entitled to special treatment regarding unofficial matters, and is
subject to normal court proceedings. She said that “no one is above the law” regardless of presidential
status, and the court will rule based on actions performed, not on who performed the action.8 Ultimately,
the New York Supreme Court primarily focused on whether the Zervos case could proceed, but did not
address the issue within the Zervos case.
Moving forward, Maria Glover, a law professor at Georgetown University, predicts that the New
York verdict will likely be appealed and the case will reach the highest court in New York. She also
thinks it is quite likely that the case will reach the US Supreme Court.9 With a long road ahead, the
Zervos case will likely not reach a verdict for quite some time as the courts deliberate the very matter of
discussing the case and Trump’s belief that he has a presidential privilege to defer. However, analysis of
the treatment of both defamation evidence of sexual misconduct allegations in court, in conjunction with
precedent from the Clinton case, invites projections of what the case may face in the upcoming months.
In defamation suits, the plaintiff holds the burden of proof. In order to have a successful case, the
plaintiff must show that the statement was defamatory and identifiable, that it was published, and that it
5
6
7
8
Mark Berman and Frances Stead Sellers, "Judge Rules Defamation Case against Trump May Proceed," The Washington Post, March 20, 2018,
9
Mark Berman and Frances Stead Sellers, The Washington Post.
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demonstrates both fault and falsity.10 In order for a statement to be defamatory, the message must be
capable of harming reputation. Zervos claims that being called a liar harmed her reputation, and stifled
business at her restaurant.11 Zervos is clearly identifiable from Trump’s statements, as he mentions her
and the other women he calls liars by name. She also identified herself when she came forward to speak.12
Trump’s comments were published, as he posted many of his allegations in the form of tweets. While
Zervos clearly meets the first three burdens of proof, fault and falsity for her case are more nuanced.
According to New York Times v. Sullivan, public officials must prove actual malice in
defamation cases. In the 1964 case, an advertisement in a Montgomery newspaper made several minor
errors in accusing the police of brutally beating MLK protestors. The police chief filed a defamation suit,
saying the ad made false statements that injured his reputation.13 However, the court made the landmark
ruling that public officials must prove actual malice, thereby demonstrating that the statement was made
with knowledge of falsity and reckless disregard to the truth. If public officials were not held to a higher
standard, it would be difficult to maintain robust debate on political and social matters as protected by the
first amendment due to limited critique of public officials.14
In a 1974 case, Elmer Gertz, a largely unknown lawyer, filed a defamation suit after he was
accused of being a Communist conspirator in a magazine while working on a murder case.15 Gertz’s
public record mentioned his membership in a legal society, but contained no information remotely
alluding to any Communist involvement. In the court’s reasoning, they recognized that the writer of the
magazine article did not do sufficient research, and fabricated elements of the published story.16 Welch,
the writer, attempted to argue that he checked the sources to the best of his ability. The court ruled that as
a private figure, Gertz was not inserting himself in public debate, and did not play a public role. If Welch
were able to get away with making such false statements due to an inability to show absolute malice
10
Michele Kimball, “Defamation Lecture” (lecture, Media Law at The George Washington University, Washington, DC, February 7, 2018).
11
12
13
New York Times v. Sullivan, 376 U.S. 254 (1964)
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15
Gertz v Welch, 418 US 323 (1974)
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because he claims he checked his sources, he would be able to ruin Gertz’s livelihood without
consequence.17 The court ruled that the first amendment “does not include absolute license to destroy
lives or careers,” and therefore established that private figures need only show negligence in defamation
cases, rather than actual malice. They recognized that a private individual should not be held to as high a
standard as those who voluntarily live in the public eye with regard to proving fault.18
As a former TV celebrity and someone who voluntarily stepped forward to speak about her
experience with Trump, Summer Zervos can be classified as a public figure. She has voluntarily inserted
herself into public discourse. Therefore, as demonstrated by Gertz v. Welch and NYT v. Sullivan, Zervos
must prove actual malice, rather than the lower bar of negligence. In showing actual malice, Zervos must
show that Trump knew he was making false statements and behaved with a reckless disregard for the
truth. If Zervos’ accounts of her several encounters with the President occurred as she says they did,
Trump’s assertion of her being a liar are indeed false statements made with reckless disregard for the
truth. In accusing her of solely speaking out of political motivation and in fabricating stories, Trump
would be engaging in actual malice, as such statements harm her reputation and are being made with
knowledge that her stories are true. However, in a case where the evidence being sought largely exists
behind closed doors, a defamation suit becomes muddy. In typical situations, the plaintiff must show that
the statement was false to demonstrate falsity, and in a case surrounding accusation of fabricating sexual
misconduct, to demonstrate knowledge of falsity for actual malice.
Without any video or recorded footage, it is impossible to know what really happened between
Trump and Zervos in the New York and Beverly Hills hotels. The best evidence known is Zervos’ word.
The validity of Zervos’ allegations of sexual harassment are essential in a successful defamation suit, as
she needs to prove that Trump’s assertions of her lying are false or can be falsified. Zervos’ lawyers have
subpoenaed the Beverly Hills hotel for any footage they have of Trump in the hotel during the time period
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Zervos described.19 They have also requested any footage from The Apprentice where Trump speaks
about sexual interests with any of the cast members.20 However, the subpoena was only placed at the end
of April 2018, and any resulting footage may or may not contain supporting evidence. Further evidence
may help Zervos, but she is ultimately left with the strength of her word against the President’s.
In Spelling v. Sessions, a 2008 case, nurse Charlene Richards represented by lawyer Don
Sessions brought a sexual harassment case against Hollywood producer Aaron Spelling.21 In gathering
evidence for the sexual harassment allegation, Sessions sent a letter to women that Spelling had worked
with, a portion of which was leaked and published. Consequently, Spelling filed a defamation suit against
Sessions, but Sessions responded with an anti-SLAPP motion to limit Spelling’s ability to silence the
sexual harassment case.22 The case brought two important questions before the court: does Spelling show
falsity for his defamation case as a public figure where evidence of sexual misconduct or lack thereof
exists behind closed doors, and is a “failure to recall” sufficient denial against a rational allegation of
sexual harassment?
The court ruled that Spelling’s burden of proof requires demonstration of actual malice and falsity
as a public figure.23 The court recognized that the letter was sent in good character, as it was trying to
hold someone accountable for potential sexual harassment and was leaked without his consent. Sessions
stated that wealth and power should not make someone exempt from the consequences of sexual
misconduct.24 With regard to falsity, the case faces a similar problem to the Zervos case, where necessary
evidence was only witnessed by the plaintiff and the defendant themselves. Can something that was never
seen or known by anyone who was not present be falsified? In this case, Richards swore that Spelling
harassed her, and provided a graphic description of their interaction. Spelling simply responded by saying
he did not recall any such instance. Spelling’s wife added that she didn’t notice any strange behavior and
19
Athena Jones and Sophie Tatum, "Trump Accuser Seeks 'Apprentice' Recordings as Evidence," CNN, May 03, 2018.
20
Athena Jones and Sophie Tatum, CNN.
21
Spelling v. Sessions, 2008 Cal. App. Unpub. LEXIS 1502. LexisNexis Academic. Web. Date Accessed: 2018/03/18.
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that Richards had an upbeat demeanor, but the court replied that Spelling’s wife wouldn’t have noticed
the behavior as she was not present in the room at the time of the incident, and Richards needed to
maintain a positive demeanor lest she be fired.25 The court ultimately ruled that failure to recall an
incident is not equivalent to denial, and that Richard’s allegations hold enough weight to be considered
truth to knock down Spelling’s defamation case,26 ultimately demonstrating the court’s recognition of the
strength of her word regarding a sexual harassment allegation.
For Zervos’ case, the ruling in Spelling v. Sessions is significant, as it indicates that allegations of
sexual harassment can hold weight in the falsity and fault requirements of defamation cases. If Richard’s
accounts were accepted as truth despite a lack of concrete evidence beyond her word, it is likely that
Zervos’ graphic recollections of her interactions with Trump will not be easily dismissed in court. For
cases of sexual harassment, it is difficult to prove falsity, as there are only two witnesses who often
interact in a private setting. All that exists to convey the story is the voice of the victim. Therefore, the
court is left with the challenge of determining whether the victim’s story is truthful, and sufficient
evidence to meet the falsity requirement of an associated defamation case. However, if the same logic is
applied from Spelling v. Sessions to Zervos’ case, it is likely that the judge will evaluate Zervos’ graphic
descriptions as valid evidence.
It is important to acknowledge at the core of Zervos v. Trump is not actually an attempt to litigate
sexual harassment, but instead, is an accusation against Trump of defamation for calling her and other
women who have come forward liars.27 In Davis v. Boeheim, two basketball players from Syracuse
University accused their coach of sexual harassment. When Davis, one of the basketball players, spread
his story on several prominent news sources, the coach’s close friend, James Boeheim, called Davis a liar
seeking fame.28 Davis sued Syracuse University and Boeheim for defamation on the accusations of lying
about his traumatizing experience with sexual harassment. The issue brought before the court was
25
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27
Davis v. Boeheim 22 N.E.3d 999 (N.Y. 2015)
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whether alleging that someone is a liar in a case with uncertain evidence constitutes falsity in a
defamation case. No one had concrete evidence that the sexual harassment occurred beyond Davis’ word,
and the court needed to determine if being called a liar is defamatory, even if some facts of the case are
unknown.29 Alleging that someone is a liar is not a fact and cannot always be proven, therefore making it
an atypical piece in meeting the falsity requirement. However, the court held that based on the context of
the communication, an allegation of lying can be interpreted as fact, and therefore substantiate the falsity
requirement.30 If future judges uphold the rhetoric used in Davis v. Boeheim, they will likely consider
Trump's allegations against Zervos as a liar to be falsifiable, and in conjunction with a precedent to value
vivid accounts of sexual harassment, will likely find that Zervos meets both the falsity and actual malice
fault requirements.
While it appears that Zervos’ case meets all of the benchmarks that are required for a successful
defamation case, the nature of when the case will be discussed and how it will be treated with regard to
Trump’s status as sitting president pose a unique situation. The only point of comparison on the matter is
Clinton v. Jones, as Clinton was the only other sitting president in US history to face a defamation case
regarding sexual harassment. In the facts of the case, Paula Jones alleged that while Clinton was still
Governor of Arkansas, he called her to the Governor’s Suite from her front desk position and made
“abhorrent sexual advances” toward her, all of which she says she rebuffed. Jones said that following the
incident, she was demoted from her job and treated poorly.31 After Clinton was elected president, several
articles were published that said Jones had accepted Clinton’s sexual advances. Publicists hired by the
President also made several statements that the events never occurred.32 Jones filed a defamation suit for
Clinton’s denial of their interaction and his labeling her a liar.33 The facts of the case are very similar to
the Trump v. Zervos case, as sexual advances occurred before the president was elected, the woman
29
30
31
Clinton v. Jones, 520 US 681 (1997)
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33
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experienced negative outcomes in the workplace in the aftermath of their interactions, and the woman
filed for defamation regarding allegations of lying once the President was in office.
In court, Clinton asked to delay the hearing of the defamation suit until he was no longer in
office. He said that hearing the case would pose risks for the institution of the presidency, and cited
balance of powers doctrine to argue that federal courts should not interfere with the role of a sitting
president. He also suggested that the President receive temporary immunity for litigation of unofficial
cases that could damage the executive’s ability to function.34 The court held that the president does not
receive temporary immunity for civil damages litigations regarding unofficial conduct that occurred
before taking office. The president is subject to the court’s responsibility to decide and resolve disputes,
and does not receive special treatment that differs from that of any other US citizen for unofficial
conduct.35 Ultimately, the court recognized that when it comes to private actions, the president is a normal
citizen, and cannot dodge the repercussions for engaging in sexual harassment or defamation.
Trump’s lawyer, Marc Kasowitz, has cited Clinton v. Jones on several occasions. He attempted to
argue that the verdict in Clinton v. Jones is not applicable to Zervos v. Trump, as Clinton’s case was
federal court and Trump’s case is state court.36 However, Judge Schechter said that the matters being dealt
with are unofficial matters, not presidential matters. She stated that “no one is above the law,” and that
Trump should face the same litigation process that any other citizen in the same situation would endure.37
The role of president is not a pass for defamation or sexual misconduct. Kasowitz has also attempted to
argue that Trump has the right to call Zervos a liar under the First Amendment.38 However, as seen in
Davis v. Boeheim, allegation of liar can satisfy the falsity burden of proof. Trump theoretically is allowed
to call Zervos a liar, but in doing so, he defames her, and must bear the consequences if Zervos’ other
burdens of proof are met and the case is successful. That is the gamble one takes when defaming
34
35
36
Frances Stead Sellers, "In Defamation Case, Trump Offers New Twist in Bill Clinton's Paula Jones Defense," The Washington Post, December
19, 2017.
37
Mark Berman and Frances Stead Sellers, The Washington Post.
38
Frances Stead Sellers, The Washington Post.
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someone, and the First Amendment only provides so much protection. Lastly, the verdict of the Clinton
case to treat unofficial business without any presidential privilege makes it seem that Trump will struggle
to defer his case on the argument that litigation would be too time consuming for the executive.
It is interesting that Kasowitz continues to invoke Clinton v. Jones when the verdict shut down
the exact request Trump is making in the context of the most similar case to exist. Bringing Clinton’s
sexual misconduct back into the headlines may in part be a distraction tactic on behalf of Trump’s legal
team. Trump supporters notoriously hate the Clintons, and seize any opportunity to relish in their faults.
While Trump is under the microscope of the courts for his own sexual misconduct, reminding his support
base of Clinton’s failures may redirect their attention from focusing on the results of his case. Perhaps, he
does not want his supporters to closely follow the Zervos v. Trump case, as the pile of precedent projects
bleak outcomes for Trump.
Zervos v. Trump is far from over. However, the court’s precedent to value the word of those
alleging sexual misconduct and to uphold lying allegations as meeting the falsity requirement make it
seem as though Zervos may be successful in her defamation suit down the road. Of course, the case needs
to be heard first, and the timeline of that is under contention due to Trump’s attempt to defer the matter.
Regardless, Zervos does seem to meet the necessary burdens of proof to have a successful defamation
case. Being called a liar was defamatory, as it reduced business at her restaurant. The allegations were
published in the form of Tweets. Zervos is identifiable, as she is a TV personality and came forward to
speak on the matter.39 Based on the Davis v. Boeheim precedent, being called a liar is falsifiable. Based
on Spelling v. Sessions, allegations of sexual harassment can be taken as truth, therefore satisfying the
falsity requirement. Lastly, Zervos can show actual malice, as if Trump called her a liar with full
knowledge of his sexual aggressions, he is speaking with reckless disregard for the truth.
The outcome of Zervos v. Trump will have major implications for the feminist movement. For
hundreds of years, women were often dismissed as emotional beings who would lie on a whim and could
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be easily manipulated. Women were silenced regarding mention of sexual harassment that could harm the
reputation of a successful man. However, in the recent wave of the #MeToo movement, hundreds of
women have come forward to tell their stories of sexual harassment by prominent men in Hollywood,
politics and beyond. For the first time in history, the words of women have resulted in a mass recognition
of the insidious plague of men mistreating women in this country. Judge Schechter already made a
powerful statement with her acknowledgement that “no one is above the law,” as she implies that even the
most powerful man in America cannot get away with such misogynistic behavior anymore.
If Zervos is successful in her case, it will be a monumental step for women around the country, as
it will show that the word of a woman has enough power to take down even a President who has acted
wrongly. This is a massive shift from years past, when women could not even speak about such
incidences without fear of dismissal or repercussion. If Zervos is successful, she effectively stands as an
example for women around the country, showing that their experiences and word can be recognized and
hold significant weight in legislative proceedings. It is incredibly important to have court support of
women moving forward in the #MeToo movement and other feminist pursuits, as the court is an
independent body that has often been responsible for the most monumental change in American History.
A successful case for Zervos could bring with it many more successful cases for women in years to come.
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Bibliography
Berman, Mark, and Frances Stead Sellers. "Judge Rules Defamation Case against Trump May
Proceed." The Washington Post. March 20, 2018. Accessed May 04, 2018.
https://www.washingtonpost.com/politics/judge-rules-defamation-case-against-trump-
may-proceed/2018/03/20/561d1d44-f498-11e7-b34a-
b85626af34ef_story.html?utm_term=.737afd675581.
Jones, Athena, and Sophie Tatum. "Trump Accuser Seeks 'Apprentice' Recordings as Evidence."
CNN. May 03, 2018. Accessed May 04, 2018.
https://www.cnn.com/2018/05/02/politics/summer-zervos-donald-trump-
accuser/index.html.
Sellers, Frances Stead. "In Defamation Case, Trump Offers New Twist in Bill Clinton's Paula
Jones Defense." The Washington Post. December 19, 2017. Accessed May 04, 2018.
https://www.washingtonpost.com/politics/in-defamation-case-trump-offers-new-twist-in-
bill-clintons-paula-jones-defense/2017/12/19/f16dccb8-dac0-11e7-a841-
2066faf731ef_story.html?noredirect=on&utm_term=.238c9684ba7b.
Spelling v. Sessions, 2008 Cal. App. Unpub. LEXIS 1502. LexisNexis Academic. Web. Date
Accessed: 2018/03/18.

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A Woman’s Word v. President

as she left to report the events that had occurred.3

address the issue within the Zervos case.

first amendment due to limited critique of public officials.14

misconduct, to demonstrate knowledge of falsity for actual malice.

strength of her word regarding a sexual harassment allegation.

descriptions as valid evidence.

bleak outcomes for Trump.

Clinton v. Jones, 520 US 681 (1997)

Davis v. Boeheim 22 N.E.3d 999 (N.Y. 2015)

Gertz v Welch, 418 US 323 (1974)

New York Times v. Sullivan, 376 U.S. 254 (1964)

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