When Frost/Nixon, the movie about the 1977 televised interviews between journalist David Frost and former president Richard Nixon, came out in 2008, I had a lot of fun dramatically reciting the film’s climactic line, spoken by Frank Langella as a sweaty, darty-eyed Nixon. Frost (Michael Sheen) asks Nixon to clarify whether he’s suggesting that the president can decide, in certain situations, whether to break the law if it’s in the best interest of the nation. In a legendary fumble, Nixon counters, “I’m saying that when the president does it, that means it’s not illegal.” There’s a moment of stunned silence. “I’m sorry?” Frost replies. “That’s what I believe,” Nixon asserts. “But I realize no one else shares that view.”
I was reminded of that scene on Tuesday afternoon, as I sat in a courtroom in lower Manhattan watching Donald Trump’s lawyer Marc Kasowitz urge a state judge to dismiss a defamation lawsuit brought by Summer Zervos — one of the sixteen women who’ve accused Trump of sexual misconduct or assault — on the grounds that a state court does not have jurisdiction over the president. The hearing was over in an hour, and Judge Jennifer Schecter has yet to make her ruling. There were no stunned silences, no Frost/Nixon–level statements that caused the room to collectively gasp. But there was a flicker of hope, if not for the complete downfall of the president, then for some semblance of justice in a year that has seen a numbing string of abuses of power come to light.
Zervos, who owns a restaurant in Huntington Beach, California, first met Trump when she was a contestant on The Apprentice in 2005. She claimed that Trump assaulted her twice, in 2007: once in his office in New York, where he kissed her on the lips twice without her consent, and again at the Beverly Hills Hotel, where she met Trump for what she thought was a meeting to discuss being hired by his organization and where he again greeted her with an open-mouthed kiss, before grabbing her shoulder, placing a hand on her breast, and pressing his genitals against her. She came forward with her story shortly after Trump dismissed his language in the infamous Access Hollywood tape, in October 2016, as “locker-room talk.”
Zervos filed her lawsuit — the only currently ongoing piece of litigation against the president — in January, three days before Trump’s inauguration. It holds that Trump “used his national and international bully pulpit to make false factual statements to denigrate and verbally attack Ms. Zervos and the other women who publicly reported his sexual assaults in October 2016.” The suit lists numerous tweets and statements Trump made at rallies during the campaign — that the women coming forward were making “false smears for personal fame,” that the allegations were “total lies,” “100% made up.” Zervos’s lawyers include a screengrab of a Daily Caller article that attempts to discredit Zervos, and that Trump retweeted along with the comment, “Terrible!” Zervos is asking for just $3,000 in damages, to signal that she’s looking not for money but, as Jia Tolentino wrote on the New Yorker’s website, for “a systematic re-engagement with the truth about Trump’s sexual misdeeds.”
On Tuesday, Zervos sat on a bench in the first row of the courtroom, behind her lawyers, Gloria Allred, Mariann Meier Wang, and Eric Hecker. (Allred’s L.A. firm is working in conjunction with the New York–based Cuti Hecker Wang.) Kasowitz, in a blue suit, his white hair slicked back, spoke first and argued that under the U.S. Constitution’s Supremacy Clause, a state court does not have jurisdiction over a sitting president. Judge Schecter asked if Kasowitz could point to any prior lawsuits that established this precedent, and he admitted there were none.
Kasowitz did, however, point to Clinton v. Jones, which came before the United States Supreme Court in 1997 and which established that a sitting president cannot claim immunity from civil litigation for acts that happened before he took office. (Paula Jones sued Bill Clinton for sexual harassment in 1994; the case was dismissed, but it precipitated his impeachment hearings after it was revealed that he’d lied under oath about his relationship with Monica Lewinsky.) Kasowitz spent much of his time arguing that the ruling only applies to cases brought before federal, and not state, courts. He also argued that Zervos’s suit is politically motivated; in Trump’s motion to dismiss, Kasowitz claims that Zervos is seeking “overly broad discovery for extra-judicial purposes,” and that the high-profile Allred is simply hoping that should the case go forward, the discovery process would “generate fodder for a time-consuming impeachment hearing.”
Benjamin Zipursky, a legal scholar and professor at Fordham University School of Law, argues that the prospect of impeachment hearings is irrelevant to Zervos’s case. The thought of the case going forward and Trump being forced to produce documents and submit to depositions “is for many people the most interesting part,” he told the Voice. “But that’s not, it seems to me, the key question. The key question is: Is that all they’re interested in, or is this woman really seeking redress for having been publicly called, over and over and over again, a liar and a fabricator and somebody who’s just seeking the limelight? Is that something she’s serious about, wanting to get redress for that? I see no reason to doubt that she’s serious about that.”
Wang argued before the court that if Judge Schecter were to issue a stay until Trump is no longer president, evidence would be lost, both in the form of documents that could be destroyed and of memories that will inevitably fade in the next three years (or seven, if Trump gets a second term). As to the question of the 24-7 nature of the president’s job — “There can’t be any curtailment” of his duties, Kasowitz argued — Wang countered that the president is “a human being who does not do his job 24 hours a day.” She offered, “We can certainly ensure that we take a deposition down at Mar-a-Lago in between his playing golf.”
“The motion today has nothing to do with putting anyone above the law,” Kasowitz argued. But then he went on to declare, in so many legal terms, exactly that. He may as well have said what it seemed like he really meant: “Look, we’re used to winning and we want to win this. Can you let us win? Can you make this go away, please?”
I’m cautiously optimistic that it won’t. When the hearing was over, Zervos and Allred left the courtroom trailed by reporters and camera operators, who followed them into an elevator and out of the building. “Fucking savages,” one cameraman muttered as they jostled each other to get a clear shot of the two women. Outside, the sky was gray and the ground was wet. A crush of reporters shoved recorders and cameras in front of Allred and Zervos. “Who shot Tupac?!” a passerby shouted. I spotted Wang standing with Hecker, off to the side, and asked how she felt. “I just was glad that she was prepared,” Wang said of Judge Schecter. “She clearly studied the briefs.”
A sad byproduct of Trump’s first, calamitous year as president is the instinctive batting away of the slightest hint of optimism. It feels dangerous to have hope. But watching the president’s lawyer stand before a female judge and her female clerk in a New York courtroom with scuffed wooden benches and unflattering fluorescent lighting — that felt pretty good. Until Judge Schecter makes her decision, I’ll lull myself to sleep with memories of that sight, and of the prospect of Zervos’s case opening the door to the 75 lawsuits filed against Trump before he took office. Happy holidays.