Summer Is Coming...for Trump. Will He Risk Testimony Under Oath?

A dismissal of Trump’s appeal by New York State’s highest court puts the ex-president in significant legal jeopardy

Trump’s legal woes are mounting as a key dismissal of an appeal to stop a defamation suit from proceeding against him issued from the New York State Court of Appeals, the highest court in the state. The action was brought in 2017 by a former contestant on The Apprentice, Summer Zervos, whom Trump is alleged to have groped and kissed against her will during a job interview in New York City and at a hotel in Los Angeles. Zervos is just one of many women who had accused the ex-president of sexual assault and sexual misconduct during the 2016 campaign.

Photo Credit: Andrew Kelly / Reuters

Trump claimed at the time that her allegation was a lie, that he had never met her at a hotel as claimed, and that her whole story, as he tweeted, was “a made up event THAT NEVER HAPPENED.” In response, Zervos sued Trump for defamation.

So let’s sort this out. First, it’s hard to sue a sitting president. The White House has enormous resources and clout. Here, Trump argued that, while he was president, he was immune from civil suit in order to protect him from harassment and so he could do his job. That actually isn’t the law, so the trial court denied that claim, but Trump appealed and lost. Then he appealed again. Appeals take enormous time to get scheduled and to brief, and this particular process took years. But before the highest court in the state could hear the case, Trump was out of office. Zervos’s lawyers promptly moved to dismiss the appeal as moot. The Court agreed.

This puts Trump now in a very tricky position. He will now potentially have to answer, under oath, whether he stands by his denials of the sexual assaults. There will be records of where he and Zervos were on the dates of the alleged incidents, i.e. whether they were both in Manhattan and LA at the time. Already the cell phone records show, according to a report by the New York Times, that Trump and Zervos exchanged numerous calls around the dates of the alleged assaults, including on the day itself in LA. (Trump claims she was pestering him for a job.) If Trump stands by his statements under oath, that could bring a charge of perjury if the evidence later shows beyond a reasonable doubt that he was lying. 

In New York State, there are three levels of perjury, and this would be a violation in the First Degree under Article 210 of the New York Code:

A person is guilty of perjury in the first degree when he swears falsely and when his false statement (a) consists of testimony, and (b) is material to the action, proceeding or matter in which it is made.

The penalty for lying under oath in such an instance is a Class D felony, with 3-7 years in prison possible.

Trump’s lawyers might advise him to plead the Fifth and refuse to testify on grounds he is protected against self-incrimination. But that would be tantamount to an admission that he did something potentially criminal and might ruin any political ambitions he still has. Further, so much time has elapsed since the alleged incidents occurred back in 2007 and 2008 that it’s unlikely that he can be prosecuted criminally for them, rendering any claim to a right against self-incrimination moot. 

Trump may therefore calculate that it’s better to face monetary penalties in a civil case than to raise the specter of his potentially criminal behavior, given that the Fifth Amendment may be moot anyway. (Interestingly, the time for Zervos to have brought a civil suit for the assault itself is likely well past the statute of limitations, assuming the running of the clock was not “tolled” by agreement, but Trump’s subsequent public denials of the allegation gave life to the current defamation action he now faces.)

Trump’s lawyers may therefore advise him to settle the case before he appears for deposition, as there is no benefit to him that can come from such testimony, which will inevitably be covered widely by the press. But even if Trump were to reach a settlement in advance of deposition in the Zervos matter, there is still the matter of E. Jean Carroll’s defamation suit, in which she accuses Trump of raping her in 1990 but later denying publicly that it ever happened. Carroll is unlikely to settle for money damages, as she appears to value public vindication far more. If she forces him to testify in that case, all of his other statements denying other sexual assaults are also fair game because they are relevant to his general tendency to lie. In other words, all of these other women would have to be lying, too, which is far less likely than just one of them.

With no Office of the President to hide behind any longer, Trump can offer no colorable arguments that he is protected or immune from these civil suits, and it seems likely that soon he will have to face their very loud music.