Now, Trump’s attorney Marc Kaswowitz is strongly suggesting that if the judge forces the handover of these documents, Trump will be issuing subpoenas to nearly two dozen women accusing him of sexual assault. And that, adds Kasowitz, will become a spectacle.
“Rather than sharpening the issues for trial, the Request would result in significant delay and prolixity and likely lead to ‘unfettered litigation,’ including in excess of 21 mini-trials concerning each of the women identified,” states a memorandum in opposition to document requests. “The parties would have to subpoena each of these women to disprove each of their accusations. The invasive discovery would lead to a media circus that would risk tainting the jury pool and lead to additional ‘mini-trials,’ as plaintiff acknowledges, concerning the admissibility of the accusations and whether the conduct was sufficiently similar, as well as the witnesses’ credibility.”
Trump previously attempted to avoid this lawsuit while serving in office by holding up the Supremacy Clause of the U.S. Constitution.
“No one is above the law,” responded the judge in allowing the lawsuit to move forward last March.
Trump is “reserving all rights to his immunity” under the Supremacy Clause, but hasn’t attempted to petition the U.S. Supreme Court on the issue of whether lawsuits may proceed in state court against the leader of the federal executive branch. Doing so now could inject some political consideration into the pending nomination of Brett Kavanaugh to the high court.
Nevertheless, Trump wants the judge to give “special consideration to the burdens” of being the nation’s leader and invokes an almost-forgotten 2002 decision concerning a request to depose Bill Clinton in a lawsuit over Primary Colors, a thinly veiled novel about Clinton’s presidential campaign.
“This Court gave deference to the burden on former President Clinton in denying a request to depose him, noting that he ‘still has important responsibilities to fulfill, and should not have his valuable time taken away to appear unnecessarily at a deposition,'” writes Kasowitz. “A sitting President should be accorded even greater respect.”
According to Trump’s brief, the demand for “irrelevant” information about illicit sexual conduct towards other women amounts to “propensity evidence,” an inadmissible testing of his character.
Zervos asserts that the document requests are necessary for several reasons including showing Trump exhibited a pattern of behavior.
“Surely it would be relevant, and a legitimate focus of cross-examination under this case law, if there were evidence supporting the conclusion that [Trump] knew that he routinely or frequently engaged in sexual groping or if he believes that because he is a ‘star,’ he is entitled to grope women sexually, knowing full well that they did not consent,” states Zervos’ court papers.
Trump responds that the common scheme exception to propensity evidence only applies when the identity of the defendant is at issue. His attorney argues that there is no such dispute here and adds, “[T]he pattern of conduct that plaintiff alleges is, of course, far from unique.”
To prevail in her defamation case, Zervos will also have to establish actual malice, meaning Trump had knowledge of falsity when he called accusations against him as “fabricated” or had reckless disregard for the truth.
Trump is arguing that malice “cannot be established by showing that [his] other statements, or parts of statements, which do not specifically relate to [Zervos], were false.”
The brief goes on to characterize the discovery demand as a “fishing expedition,” an improper attempt to use inadmissible evidence to impeach Trump’s credibility.