Summer Zervos (right) with attorney Gloria Allred. Photo credit: Mary Altaffer/AP

Whether a former contestant on “The Apprentice” will have to wait until President Donald Trump is out of office to hale him in to court in her defamation lawsuit is expected to be the central issue before a Manhattan appeals court on Thursday afternoon when it is set to hear arguments in the case.

Trump's lawyers are set to argue before the Appellate Division, First Department, that Summer Zervos—who said Trump subjected her to unwanted kissing and groping in 2007 and whose lawsuit says he defamed her by calling her a liar during the 2016 election campaign—may not litigate her case while he is in office.   

Zervos' legal team is prepared to say she may sue over Trump's non-official conduct, and has said that his status as president “does not place him above the law.”

They have also disputed Trump's argument that his statements in campaign speeches and on Twitter denying allegations of sexual misconduct should be considered mere opinion, without defamatory meaning.

“His brutalizing of her a second time—this time falsely condemning her to the world as a liar for having the temerity to reveal his earlier unwanted sexual groping of her body—directly caused serious injury,” said Zervos' lead counsel, New York-based Cuti Hecker Wang partner Mariann Meier Wang, in court papers.

Wang said that, following Trump's statements that his accusers lied to hurt his campaign, Zervos, a California restaurateur, has received threats of violence against her and her business.

Zervos' legal team also includes Cuti Hecker attorneys John Cuti, Eric Hecker, Daniel Mullkoff and Heather Gregorio.  

Trump's lawyers seek to overturn a ruling in March by Manhattan Supreme Court Justice Jennifer Schecter to deny a motion to dismiss, finding nothing in the supremacy clause of the U.S. Constitution that precludes the president from getting sued in state court and that Trump's remarks regarding his accusers could be proven true or false.

In court papers, Marc Kasowitz of Kasowitz Torres Benson in New York, a longtime lawyer for the Trump family who is working as lead defense counsel in the Zervos case, argues that allowing “politically motivated” lawsuits like Zervos' to move forward may create “intolerable burdens” for the president and that, even if Trump's statements could be interpreted as calling Zervos a liar, a reasonable audience would understand that his statements were opinions.

“As a matter of fundamental First Amendment principles, when heated political campaign speech is involved, a reasonable audience would view it as part of a free, robust, even nasty political discourse, rather than defamatory statements of fact,” Kasowitz wrote.    

Trump's defense team also includes Kasowitz Benson Torres attorneys Christine Montenegro and Paul Burgo.

In the fight regarding standing for Zervos to sue Trump in state court, the parties have little precedent to work with: the only case addressing the specific issue is President Bill Clinton's court battle with Paula Jones, who alleged that Clinton lured her to a hotel room in 1991 while he was still Arkansas governor and propositioned her to perform oral sex.

Jones sued Clinton for sexual harassment in 1994, more than one year after Clinton took power.

In 1997, the U.S. Supreme Court found that sitting presidents are not immune from suits filed in federal court, though it left open the question of whether or not the president could be targeted with state court actions, ruling that a lawsuit filed in state court might present a more compelling case for presidential immunity.  

Clinton eventually agreed to a $850,000 settlement in the case that included no acknowledgment of wrongdoing.       

The First Department has already dealt a setback to the Trump team in the Zervos case; in May, the court denied Trump's bid to stay the case until he has left office, and the Court of Appeals declined to hear the case, leaving the First Department's ruling intact.

Clinton was also unsuccessful in his effort to delay the proceedings in the Jones case.

However, Trump's argument that statements he made during the public mudslinging in the months leading up to the 2016 presidential election should be considered opinion has proven to be a viable defense against defamation claims.

Political commentator Cheryl Jacobus, who says she was turned down for a job with the Trump campaign, sued Trump for defamation in 2016 while he was still a candidate after he responded to criticism from Jacobus by taking to Twitter and calling her a “real dummy” who “begged” him for a job.   

Manhattan Supreme Court Justice Barbara Jaffe tossed out Jacobus' suit, finding that Trump's statements amounted to campaign rhetoric, that Trump's tweets about Jacobus had a defensive tone and that comments published through social would be more likely to be understood as opinion rather than fact.

The First Department upheld Jaffe's ruling on appeal and the Court of Appeals denied cert.

Jay Butterman of Butterman & Kahn, who represented Jacobus in the suit, said Zervos' case may fare better that Jacobus', given that the alleged defamation in the Zervos case includes tweets as well as statements from stump speeches.

But he isn't overly optimistic. Butterman said that New York libel law is generally favorable for defendants, that the courts seem to view Twitter as a “libel-free zone” and that some courts have allowed First Amendment to be used by powerful individuals to lash out at critics.   

“If the doors of the courthouse are closed to every person who was not just simply denigrated but damaged by Donald Trump, then we have carved out a completely free ability for any individual to simply ruin whoever he thinks needs to be ruined,” Butterman said.

Lawrence Rosen of LaRocca Hornik Rosen Greenberg & Blaha, who defended Trump in the Jacobus case, responded that the courts that ruled in the case concluded that the alleged defamatory words were opinion speech and hyperbole, and that the courts performed a traditional defamation analysis, which included the context in which the statements were made—in this case, the heated back-and-forth political debates associated with the campaign.

“Ms. Jacobus was very critical of then candidate Trump on the air,” Rosen said. “Mr. Trump responded to these attacks with his own opinions as to her motivations for criticizing him, which the court found to be protected speech and not defamatory.”

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