In a major development, Manhattan Supreme Court Justice Jennifer Schecter has ordered that President Donald Trump must sit for seven hours of questioning in the defamation case of former Apprentice contestant Summer Zervos. The case is a defamation action is linked to Zervos’ allegation of sexual harassment by Trump. In April, I wrote a column warning that Trump’s local counsel in various states were recklessly using presidential privilege and immunity arguments to try to kill various lawsuits. Now, just as Trump’s team appears to be moving away from a sit down with Special Counsel Robert Mueller, he will have to submit to a grueling, high-risk deposition in New York. The obvious analogies to the Bill Clinton scandal and impeachment are inescapable.
Notably, the order allows for a substantial amount of time — far more than the couple hours that the Trump lawyers have suggested as an outside limit with Mueller. In the Jones case, Clinton testified for a little over four hours.
Trump could certainly challenge the order, though the Supreme Court ruled in Clinton v. Jones (correctly) that a president cannot claim immunity from such a civil deposition. Notably, in that decision, Justice John Paul Stevens wrote ” . . . it appears to us highly unlikely to occupy any substantial amount of petitioner’s time.” Of course, it would occupy more than a few hours in the end since Clinton lied under oath on April 12, 1999, the judge found Clinton in contempt of court for “intentionally false” testimony. Ultimately, Clinton’s false testimony on the Lewinsky affair led to his impeachment. I was one of the constitutional experts called to testify as to the basis for the impeachment. While I had voted for Clinton, I believed that he could certainly be impeached for lying under oath as a high crime and misdemeanor under the Constitution.
The rejection of Trump’s immunity arguments was predictable. However, the ruling also reinforces the expectation that any defiance of Mueller will result in a subpoena and a court order to appear before the Grand Jury.
The looming issue will be whether Schecter allows questioning on other women and their allegations of assault or harassment from Trump. As a general matter, the scope for questions is broader in a deposition. Fed. R. Civ. P. 26(b)(1) allows discovery of relevant, inadmissible information so long as it is “reasonably calculated to lead to the discovery of admissible evidence.” Thus, if the answer can lead to admissible evidence, it is generally allowed. Most courts allow the record to be established and then address relevancy or other issues in pre-trial motions. Depositions allowed for theories and lines of inquiry to be tested even though much of the information may not pass muster for admission at trial. That is obviously not ideal for the President if he is asked about a pattern with other women. Moreover, if he denies ever sexually harassing women, his veracity can be a issue in seeking information on additional women.
The deposition is set for Jan. 31st. That is a dangerous potential time since, if Mueller puts the investigation into a holding pattern as he approaches the November midterm elections, he would be ramping up again during that period.