Protesters outside Trump Tower in Sept. 2015. Photo: CNN

A lawsuit against President Donald Trump filed by protesters who allege that the then-candidate's security detail roughed them up in 2015 during a campaign speech is moving forward to trial in a Bronx state court and the plaintiffs want the president to testify.

But a lawyer for Trump argues that the president is not obligated to comply with the plaintiffs' subpoena and that the survival of their case may hang on a pending ruling from a state appeals court as to whether or not plaintiffs sue a sitting president in state court.

Attorneys for the protesters have moved for Bronx Supreme Court Justice Fernando Tapia to order Trump to testify in the case, which is scheduled to go to trial March 6.

“The law gives plaintiffs a right to the testimony of every defendant in the case,” said Roger Bernstein, a solo attorney representing the plaintiffs, in a written statement “By our motion today, we have asked the court to secure that right and affirm the principle that no one, including defendant Trump, is above the law.”

Benjamin Dictor of Eisner & Dictor and Nathaniel Charny at Charny & Wheeler also represent the plaintiffs.

The plaintiffs, a group of five Mexican activists, say they took to the streets in protest outside Trump Tower in September 2015 in response to Trump's statements during a June 16, 2015, campaign announcement that Mexico is sending “rapists” and people bringing drugs and crime into the United States.

They allege that Keith Schiller, Trump's chief security officer, and some of Trump's bodyguards approached the group and that Schiller moved to grab one of their signs, causing a scuffle to break out.

In August, Tapia ruled to preserve the plaintiffs' vicarious liability claims against Trump and the Trump Organization for the actions of the security detail, as well as their assault and battery claims, but dismissed negligent hiring claims against Trump and the Trump Organization.

The defendants are appealing the ruling to the Appellate Division, First Department.  

In a letter to the plaintiffs' attorneys dated Jan. 11, contained as an exhibit in the plaintiffs' motion for Tapia to order Trump to testify, Lawrence Rosen of LaRocca Hornik Rosen Greenberg & Blaha cited as reasoning for rejecting the subpoena a pending ruling from the First Department in another suit against Trump that could determine whether or not a sitting president can be sued in state court.

In that case, Summer Zervos, a former contestant on “The Apprentice” who says that Trump groped her and subjected her to unwanted kissing in 2007, is suing Trump for defamation in Manhattan Supreme Court for calling Zervos a liar during campaign speeches and on Twitter.

Trump's lawyers are appealing a ruling by Manhattan Supreme Court Justice Jennifer Schecter that the supremacy clause of the U.S. Constitution doesn't bar plaintiffs from suing the president in state courts.

Rosen, who did not respond to a request to comment on the plaintiffs' motion, said in the letter that if the First Department, which heard oral arguments in the Zervos case in October, finds for Trump, the Trump Tower protesters' claims would be dismissed or severed.

But even if the First Department affirms Schecter's ruling, Rosen said, the plaintiffs waived trial testimony from Trump because they did not renew a previous motion to compel Trump to sit for a deposition during the discovery phase, which he said is required to get a sitting president's testimony.

In court papers, Charny called the argument regarding pretrial discovery “frivolous” and said there is “no such thing” as waiving a party's right to call witnesses based on the scope of discovery.

Read more:

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