Trump borrows Bill Clinton's legal strategy as he battles defamation lawsuit

Kevin McCoy

President Trump is borrowing from former president Bill Clinton’s legal playbook as he fights a civil defamation lawsuit filed by a former The Apprentice contestant who claims he sexually assaulted her.

This combination photo shows President Trump listening during a White House meeting on health care, and Summer Zervos, a onetime contestant on Trump's former reality TV show, 'The Apprentice,' at a Los Angeles news conference where she alleged that Trump had made unwanted sexual contact with her.

Even as Trump has criticized his frenemy —  the nation’s 42nd president and husband of presidential rival Hillary Clinton — Trump’s attorneys have invoked court arguments Clinton raised when he was accused of sexual abuse during the 1990s.

Similar presidential denials

Trump's attorneys have asked a judge to throw out or postpone the lawsuit filed against him in January by Summer Zervos, a one-time contestant on the Republican businessman's former reality TV show, The Apprentice.

Zervos alleged that Trump “ambushed” her more than once by kissing her on the mouth, touching her breast, and pressing his genitals against her, according to the lawsuit. Trump denied the allegations, which echo other women’s claims that he also has dismissed as false. The lawsuit alleges that Trump defamed Zervos by claiming she "made up" the account.

Trump denied Zervos' account. And his attorneys have argued that any statements he made defending himself did not constitute defamation. 

In a 1994 lawsuit, Paula Jones accused Clinton of sexual misconduct that allegedly occurred when he was the governor of Arkansas and she was an employee of the state.

Jones alleged that Clinton had her summoned in 1991 to a Little Rock hotel suite where he lowered his pants and requested oral sex. Her refusal led to punishment by her state job supervisors, Jones said.

Motions to dismiss or delay

Clinton, who served as president from 1993 to 2001, denied Jones' allegations.

He spent four years trying to get the case dismissed or delayed until after his presidential tenure before agreeing to an $850,000 settlement that included no acknowledgment of any wrongdoing.

Trump hopes to avoid any repeat of the distraction that the Jones case became for Clinton's presidency. Attorneys for Zervos in September signaled readiness for a long court battle by subpoenaing Trump's presidential campaign for "all documents concerning any woman who asserted that Donald J. Trump touched her inappropriately."

Preparing for a scheduled Tuesday hearing for arguments on a motion to dismiss or delay the case, Trump attorney Marc Kasowitz wrote in a legal memorandum that "what Ms. Zervos alleges occurred never happened. He argued that Zervos hoped to work for Trump, but turned against him after he failed to accept an invitation to visit her restaurant.

In a parallel legal argument for dismissal, Kasowitz has also cited court filings and other material that stemmed from Jones’ case against Clinton.

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Jones filed her lawsuit in an Arkansas federal district court, which denied Clinton’s motion to dismiss the case but postponed a trial until he left office. A federal appeals court reversed the postponement portion of the ruling. Clinton then sought review by the U.S. Supreme Court.

Jones’ lawsuit focused on a legal question that at the time had not been resolved  — whether private civil lawsuits based on events that allegedly occurred before a U.S. president took office or were unrelated to the presidency may be litigated during that president’s term of office.

Clinton and Trump lawyers: Lawsuits would distract president 

Clinton’s lawyers argued that no previous president had been compelled to submit to a civil damages action. They also contended that allowing the Jones case to proceed would cause “serious ramifications’ for the U.S. presidency.

“All but the most exceptional cases” should be deferred until after the president leaves office, the attorneys contended.

The Supreme Court ruled against Clinton by a 9-0 vote in 1997. The court’s decision, delivered by Justice John Paul Stevens, stated that federal courts have jurisdiction to handle such cases. “Like every other citizen who properly invokes that jurisdiction, (Jones) has a right to an orderly disposition of her claims,” Stevens said.

Although Trump seeks a different outcome, Kasowitz’s legal argument focused on a footnote in the Supreme Court decision that drew a distinction between the federal court system, which handled the Jones case, and state court systems, such as the one in New York where the Zervos lawsuit was filed.

Although the U.S. Constitution’s Supremacy Clause makes federal law “the supreme Law of the Land,” the footnote stated that “any direct control by a state court over the president, “who has principal responsibility to ensure that those laws are faithfully executed … may implicate concerns that are quite different” from the issues in the Jones case.

As a result, there's been no resolution whether allegations similar to those made by Jones “might succeed in a state tribunal," Kasowitz argued.

Citing what his memorandum characterized as legal uncertainty, Kasowitz said Zervos’ lawsuit should be barred “from proceeding in state court during the Trump Presidency.”

Mariann Meier Wang, an attorney for Zervos, argued in a legal memorandum that the high court’s decision “was aimed at judicial power generally, not at any unique characteristics of federal judicial power.”

“Just as there was no basis to be concerned that the federal district court would manage the Jones case in a way that would hamper the President’s ability to do his job, there is no basis for this Court to be concerned that its management of this case will prevent Defendant from doing his job,” Wang added.

Kasowitz nonetheless argued in his legal memorandum that the Jones case “occupied an inordinate amount of President Clinton’s time and impeded his ability to carry out his duties.” Citing the subpoena issued by attorneys for Zervos, he contended that her case appears to have “the same goal.”

The decision on whether the case should move forward, which may be appealed regardless of the outcome, rests with New York Supreme Court Justice Jennifer Schecter.

Follow USA TODAY reporter Kevin McCoy on Twitter: @kmccoynyc