President Donald Trump. Photo / AP
In the weeks leading up to his election, Donald Trump went on a tear against a list of women who had accused him of touching them inappropriately. One was Summer Zervos, who had been a contestant on his reality television show.
"False stories. All made up. Lies. Lies. No witnesses. No nothing. All big lies," Trump declared at a rally, after the Californian made a statement alleging that Trump kissed and groped her in a 2007 encounter at the Beverly Hills Hotel.
"Total fabrication," he told a cheering crowd in Gettsysburg, Pennsylvania. "The events never happened. Never. All of these liars will be sued after the election is over."
As the nation wrestles with a historic shift in how to address old charges of sexual misbehaviour, allegations against Trump, which date to his days as a New York developer, have become part of the public debate. Trump has repeatedly said the accusations against him are groundless.
But by turning personal and branding the women liars, Trump has perhaps unwittingly played into a cutting-edge strategy in the legal pursuit of sexual misconduct - claims of defamation that were used against comedian Bill Cosby and in a lesser-know New York case, argued by two lawyers who are now representing Zervos.
The defamation suit filed in January in the New York State Supreme Court by Zervos, a short-lived contestant on The Apprentice, has reached a critical point, with oral arguments over Trump's motion to dismiss scheduled for Tuesday, after which the judge is expected to rule on whether the case may move forward.
If it proceeds, Zervos' attorneys could gather and make public incidents from Trump's past and Trump could be called to testify, with the unwelcome spectre of a former president looming over him: It was Bill Clinton's misleading court testimony - not the repeated allegations of sexual harassment against him - that eventually led to his impeachment.
"It's almost a train you can't stop going down the tracks, said Joseph Cammarata, who represented Paula Jones against Clinton and, more recently, represented seven Cosby accusers in a defamation suit. "It opens him up to have to answer questions about sexual relations, other relationships, what might have been said, to open up your whole life."
The use of defamation to litigate an underlying allegation of sexual misconduct addresses other challenges: Often, the statute of limitations is up before accusations come to light; in some instances, the he-said, she-said nature of the testimony makes accusations hard to prove.
"An allegation of defamation against somebody who can seem flamboyantly reckless with the truth may have a higher probability of sticking," said Naomi Mezey, a law professor at Georgetown University. "Some women feel equally injured and sometimes more outraged by being publicly attacked and called liars for doing what they feel was very brave and in some respects a public service."
Zervos came forward after The Washington Post's publication in October 2016 of an Access Hollywood video showing Trump bragging about grabbing women's genitals. She issued a statement on October 14 alleging that Trump kissed her when she visited him at Trump Tower in December 2007, and that he kissed her, groped her breast and "began thrusting his genitals" when he invited her to join him for dinner later that month in a bungalow at the Beverly Hills Hotel.
The allegations surprised people in Zervos' home town of Huntington Beach, California, where she attracted attention when she was chosen in a national search for season five of The Apprentice. But Trump fired her abruptly at the end of the first episode. After filming finished, Zervos returned to work at Sunny's, her family's popular diner. Several of her acquaintances recalled in recent interviews their shock at seeing Zervos appear on television to make allegations about Trump.
"We couldn't believe it," said Kathy May, a Trump supporter who recalled conversations at the time.
Zervos is represented by Gloria Allred and her New York based co-counsel Mariann Meier Wang, who declined to make Zervos available for questions. Allred says she represents Zervos pro bono on her website, where she appeals for donations to pay Zervos' other legal expenses and says excess contributions will go to rape crisis centres.
Allred and Wang have demonstrated their determination to prove the allegations. They subpoenaed the Trump campaign in March for documents concerning Zervos and "any woman who asserted that Donald J. Trump touched her inappropriately". The attorneys agreed to suspend the document release until after the New York judge rules.
Allred declined in an interview to discuss her evidence-gathering strategy, but said, "We're not going to be limited to that which we have itemised in our subpoena." In news conferences, she has been asked whether targets could include outtakes from The Apprentice, which might show how Trump treated female contestants such as Zervos.
If the suit goes to trial, Allred, who appeared at news conferences last year alongside three other Trump accusers, could bring other women to the stand.
"My read of the case is that it is designed to force the president to make public material that he would prefer to keep private," said David Marcus, a law professor at the University of Arizona.
By filing in New York, Allred and Wang have chosen a state where Zervos' claims may be met with sympathy, said Robert Rabin, a Stanford law professor. A New York jury is likely to be "anti-Trump, anti-sexual misconduct and [have] generally liberal norms", he said.
Allred and Wang settled a defamation case there in 2015. In that suit, two clients accused the Syracuse University basketball coach of defaming them after they spoke up about sexual abuse that they said occurred when they were ballboys for the team.
"We think that that is an important precedent on what the issue of defamation is in New York," Allred said in a recent interview.
Marc Kasowitz, Trump's personal lawyer, said in a statement that Zervos' case has "no merit," describing it as "politically motivated" and "based on allegations of events that never occurred". Paul Burgo, a lawyer in Kasowitz's firm, wrote in a recent email that they had no further comment and are seeking "dismissal and alternatively a stay on Constitutional grounds".
White House press secretary Sarah Huckabee Sanders said the administration also had nothing to add about the case. Responding to a reporter's question at a news briefing in late October, Sanders affirmed that the official White House position is that the women are lying.
That has been Trump's stance from the beginning. After Zervos made her allegations, Trump posted a statement on his campaign website: "To be clear, I never met her at a hotel or greeted her inappropriately a decade ago." He decried what he called "made up events", "100 percent fabricated and made-up charges", saying in the last presidential debate that the women were put forward by the campaign of Hillary Clinton, his Democratic rival, or motivated by the desire for "10 minutes of fame", according to Zervos' complaint.
In a November statement, Zervos described repercussions after Trump accused her of untruthfulness. "After he called me a liar I was threatened, bullied and saw my business targeted," she said, asking for a retraction of his statements about her and other women.
Two months later, she filed suit.
Her attorneys' strategy has challenges, which have prompted an almost year-long battle with Trump's lawyers. Legal scholars are debating everything from broad constitutional questions of presidential immunity to the finer points of New York law and whether Zervos could appeal should the judge defer the suit until Trump leaves office.
"Of all the many logic puzzles this case presents, the possibility of a deferral ventures into uncharted waters and would likely send the attorneys to the mat," said J. Maria Glover, a Georgetown University associate law professor who specialises in complex litigation.
Trump's lawyers argue that the president is immune and that the comments he made were political opinion and therefore "squarely protected by the First Amendment".
In 1997, a Supreme Court ruling made it possible for a sitting president to be sued for private actions that occurred before he took office. Trump's lawyers are arguing that Clinton v Jones, which applies to federal litigation, does not apply in state courts.
"That is where [Trump's lawyers] are putting their linchpin," said John Diamond, a law professor at the University of California Hastings College of Law in San Francisco.
Trump's unusual status, as a candidate and then a sitting president, is not the only complicating factor. Zervos may also face special scrutiny as a former contestant on Trump's show.
The burden of proof lies with the plaintiff. To show Trump defamed her, she must first demonstrate that her allegations against him were accurate.
If she is deemed a private citizen, Zervos simply would have to show that Trump was negligent toward the truth. If she is a public figure, the bar is far higher.
"She would have to prove he knew [what he said] was false or had reckless disregard for the truth," said Lee Levine, senior counsel at the law firm Ballard Spahr.
Some experts suggest that the suit could surface one of the mysteries of the 2016 campaign: unused footage from The Apprentice.
Trump starred on the show for more than a decade, and multiple cameras captured scenes that never appeared on television. The boardroom drama, which lasts a few minutes on the show, might take a gruelling 1.5 hours to shoot, with Trump playing contestants against one another.
Speculation about the outtakes soared after the "Access Hollywood" video was reported. Bill Pruitt, who worked on The Apprentice, tweeted, "As a producer on seasons 1 & 2 of #theApprentice I assure you: when it comes to the #trumptapes there are far worse."+
As a producer on seasons 1 & 2 of #theapprentice I assure you: when it comes to the #trumptapes there are far worse. #justthebegininng
— Bill Pruitt (@billpruitt) October 8, 2016
But Scott Salyers, the show's supervising casting producer, said in an interview, "I think those outtakes would no longer even put a blip on the radar."
Salyers spent time with Trump during contestant selections. "He is who he is," Salyers said. Outspoken, prone to off-the-cuff outbursts, an ideal reality TV star.
Those same traits could become liabilities for Trump, should he take the stand.
"I am not suggesting [Trump] will lie under oath," Allred said in an interview. But, she added, if the President were to lie, perjury is considered a high crime and misdemeanour, which can prompt impeachment hearings.
The stakes for the President go beyond sexual misconduct or defamation: If the judge decides the case cannot proceed, the ruling could stymie attempts to bring other civil suits against Trump in state courts. If, on the other hand, the suit does proceed, it could encourage more litigation against a president who entered office with an unusual array of lawsuits in his wake.
And if Zervos wins, her victory could embolden other accusers.
"There are 10 or 11 other women waiting in the wings," Rabin said.
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