Friday, April 7, 2017

Essay VII (Due Wednesday)


Zervos v. Trump

Summer Zervos filed suit against President Donald J. Trump. The action asserts one claim for defamation (a state-law cause of action), alleging that Trump, as a candidate for president in 2016, repeatedly and publicly called her a liar in denying her allegations that he sexually assaulted her. Although the complaint does not specify the amount sought, successful defamation plaintiffs often recover well in excess of $ 100,000 in compensatory damages. The complaint asks for punitive damages, which are legally available in defamation cases.

Zervos filed the lawsuit in the Supreme Court of New York (New York’s trial court) on January 23, 2017. This was three days after President Trump’s inauguration (which, by constitutional command, occurred at noon on January 20 (U.S. Const. amend XX)). Trump was served on Thursday, March 23. On Friday, April 7, Trump removed the action to the United States District Court for the Southern District of New York.

Zervos is a citizen of California.

Prior to his inauguration, Trump had resided in the penthouse condominium in Trump Tower (725 Fifth Avenue) in New York City, since the building opened in 1983. Following the inaugural ceremonies on January 20, Trump moved into the Residence in the White House.

Trump still owns the condo in Trump Tower. His wife, Melania (who he married in 2005), continues to reside there full-time, along with their school-age son, who continues to attend school in New York City. It is not clear what will happen at the end of the school year. According to the President’s aides, no decision has been made as to whether Melania and their son will move to Washington or whether he will continue attending school in New York, with Melania dividing time between New York and Washington.

Donald Trump was born and raised in New York City. Other than two years living in Philadelphia, Pennsylvania, for college, which he graduated at the age of 22, his primary residence for his adult life (he is now 70 years old) has been in Manhattan, usually in condominiums in buildings his company has built and owns in New York City. In addition to the Trump Tower condo he lived in from 1983 until January 20, 2017, Trump owns a residence in Florida, where he spends a total of ten weeks each year, mostly on weekends, along with homes in upstate New York and Charlottesville, Virginia. Prior to his inauguration, he had never worked or lived in Washington.

As of the date of filing of the lawsuit, the President retained a New York driver’s license and remained registered to vote in New York. Most recent presidents have not changed either voter’s registration or driver’s license to Washington, D.C.

As of the date of removal, Trump had not set foot in New York since January 19, the day before his inauguration. During that period, he had spent eight weekends in Florida.

President Trump has not announced whether he will seek reelection in 2020, nor is he guaranteed to win; if he is not reelected, he will move out of the White House on January 20, 2021. Under the Twenty-Second Amendment, a person can be elected President only twice. Therefore, President Trump will move out of the White House, at the latest, on January 20, 2025. Historically, Presidents return to their prior states of residence or move to new states upon leaving the White House. To cite the most recent examples: George W. Bush moved back to Texas, as did his father, George H.W. Bush; Ronald Reagan moved back to California; and Jimmy Carter moved back to Georgia. Although Bill Clinton lived in Arkansas before becoming President, he moved to New York at the end of his term. The only recent example of a President remaining in Washington is Barack Obama, who continues renting a home in D.C. while his younger daughter completes high school, although Obama owns a home in Illinois and is registered to vote there.

You are counsel for Zervos. You want to litigate the case in state court (which is why you filed there) and you believe that the action is not removable. Explain what you should do now and make your arguments in support of that procedural move.