This article is part of TPM Cafe, TPM’s home for opinion and news analysis.
At the very end of the Supreme Court’s 2019-2020 term, the Justices finally decided cases on who could get access to President Donald Trump’s personal financial records. At issue in these cases were whether a prosecutor in New York and congressional committees could get their hands on Trump’s taxes and other financial information from his banks and accountants. An unnoticed winner in these cases was Summer Zervos, a woman who has been suing the President civilly for the past four years.
The two cases, Vance (the New York prosecutor case) and Mazars (the congressional committees case) have one thing in common: they rule that the President is not above the law. In Vance, the Supreme Court was unanimous on the point that a president cannot hide his personal papers from a criminal prosecutor. The ruling in Mazars was a bit more garbled as the Justices did not like the absolutist positions from either the President (who said he didn’t have to respond to congressional subpoenas) or Congress (who said that they could essentially subpoenas anything from anyone at any time). Both cases give Trump’s legal team leeway to muck up proceedings with legal maneuvering that may result in voters’ not seeing the contents of Trump’s financial documents until well after the 2020 election.
But between the two cases, there is an unlikely beneficiary: anyone who is suing Trump in civil state court. The reasons are three-fold: for one, if the President is not above the law and is going to be treated as any other citizen, then he can be sued just like any other citizen. Secondly, the Supreme Court rejected the notion in Vance that the Supremacy Clause of the Constitution protected the President from suit in state courts. And thirdly, the Supreme Court made clear in Vance that the Supreme Court was reaffirming the legal reasoning of an earlier case called Clinton v. Jones.
When the Vance and Mazars cases were making their way through the legal system, constitutional law professors like myself gave lots of interviews explaining that both the prosecutor and Congress had very strong cases because there just were not many cases on-point about the relationship between the President and his participation in legal cases. One was the Nixon case where an unanimous court ordered President Nixon to turn over his Oval Office tape recordings for use in a criminal case. Another was the Clinton case when an unanimous court declared that President Clinton could not delay participation in a civil suit accusing him of sexual harassment until the end of his presidency. Both of these cases stand for the proposition that the president of the United States is not above the law.
But the wild card was that the Supreme Court always has the power to overturn previous cases. And it could have used either the Vance and/or the Mazars cases to limit the scope of either the Nixon or Clinton cases. The Supreme Court did neither. Instead the court specifically reaffirmed the Clinton case citing it for the proposition that “the Court expressly rejected immunity based on distraction alone 15 years later in Clinton v. Jones, when President Clinton sought absolute immunity from civil liability for private acts.” Then the court also referenced both Clinton and Nixon, noting “we have twice denied absolute immunity claims by Presidents in cases involving allegations of serious misconduct. See Clinton, 520 U. S., at 685; Nixon, 418 U. S., at 687.” In Mazars, the Court similarly stated: “more recently we ruled that a private litigant could subject a President to a damages suit and appropriate discovery obligations in federal court, Clinton v. Jones, 520 U. S. 681 (1997).” This means a supermajority of the court has reaffirmed Clinton as good law.
Clinton is about civil suits against the President. And the reaffirmation of Clinton by Vance and Mazars means that President Trump is subject to civil suits and any claims that he is immune because he is president and can be rejected by judges in the cases. This is excellent news for one of the people suing Trump, Summer Zervos.
With so many legal cases swirling around President Trump, the Zervos case was easy to lose track of. But it is one that could have legs. Summer Zervos was a contestant on Trump’s television series “The Apprentice.” During Trump’s 2016 run for president, Zervos publicly accused Trump of kissing her twice on the lips, making her “uncomfortable, nervous and embarrassed,” while in his New York office in Trump Tower. Trump has denied that this happened. On the eve of his inauguration, on January 17, 2017, Zervos commenced an action for defamation, alleging that Trump made defamatory statements about her “knowing they were false and/or with reckless disregard for their truth or falsity.”
The Zervos case could be especially important in an election year because it could shed light on Trump’s mistreatment and alleged sexual assault of women. Female voters make up a key voting bloc.
Fortunately for Zervos, lower courts in New York have already decided that the President is not above the law. This was the conclusion of a New York state court in 2018 and in a New York state appellate court in 2019. In March, the highest court in New York paused the Zervos case to consider the President’s constitutional arguments. But as late as May 2020, the President’s lawyers were arguing to the highest court in New York that he should be excused from Zervos’s suit.
Unfortunately, all of this litigation is taking time. The Zervos v. Trump case has been stuck in the mud as Trump’s lawyers attempted to convince judge after judge that he cannot be sued by Zervos in state court because of the Supremacy Clause. This is precisely the same ground on which Manhattan DA Cy Vance won in his Supreme Court case. Thus the Vance and Mazars cases may help extinguish the primary defense and delay tactics that have stymied cases like Zervos’ for years. And if her suit goes forward, she will get to ask the President to produce discovery and she will have the ability to depose him, which would provide her the opportunity to ask him about a pandora’s box of alleged misdeeds.
Ciara Torres-Spelliscy is a law professor at Stetson, a Brennan Center Fellow and the author of the book, Political Brands.
So he lost and discovery is nearer than ever. I see the simple solution, the solution that should have taken place 4 years ago, settle with a non-disclosure attached as to term. She will take it as she eventually needs to pay the attorney fees and other expenses.
That may be the best he can do, but is it good enough? Settling a case like this won’t look so good.
Note from the mystery billionaire: Bring me any proposed settlement, Summer, and I will match it in exchange for you not settling. And, by the way, I’m an actual billionaire.
My understanding is Covid19 has slowed civil litigation in New York to a crawl.
But not a standstill. Our mystery billionaire may be interested in spreading around some campaign funds to the various Gotham judicial functionaries to speed the process for Summer.