A lawyer representing President Donald Trump in a defamation case struggled to answer questions from a panel of judges in New York Thursday, according to an in-depth analysis.
Former New York City prosecutor Ronn Blitzer wrote in Law&Crime that Marc Kasowitz had a few stumbles in front of the Appellate Division of the New York Supreme Court as he argued in the case involving Summer Zervos, a former contestant on "The Apprentice" who said Trump made sexual advances toward her.
The lawsuit, filed in January 2017, charges that Trump "knowingly, intentionally, and maliciously threw" Zervos and other accusers "under the bus" and called them "liars."
On Thursday, Kasowitz was arguing for the lawsuit not to go forward while Trump is in office, trying to make the point that state courts lack jurisdiction over a sitting president because he or she is the ultimate repository of the executive branch's powers. Further, Kasowitz noted that the president is required by the Constitution "to be always in function," a point made by former President Thomas Jefferson in 1807.
Jefferson also noted that there is no differentiating between courts at the state and federal levels when it comes to litigating a sitting president.
Kasowitz, according to Blitzer, then cited Article 6, Clause 2 of the Constitution, known as the Supremacy Clause — which says, in part, that the Constitution is the "supreme law of the land" and that "judges in every state shall be bound thereby."
Kasowitz got tripped up, Blitzer wrote, when the judges on the panel asked him why presidents should be immune to court cases when the Supreme Court ruled in Clinton v. Jones that presidents could actually be subjected to legal action at the federal level while in office.
Kasowitz tried to talk his way out of the hole, Blitzer wrote, and he was forced to spend so much time on it that he had very little opportunity to address his other two arguments in the case.
Later during his rebuttal, Kasowitz attempted to argue why the case should be thrown out but the judges again went back to Clinton v. Jones and said the current case is not so simple.
The judges challenged Zervos's lawyer as well, and according to Blitzer's analysis they essentially made a case for the Supremacy Clause. Mariann Wang was asked what would happen if a sitting president defied a deposition order from a state court, which can result in jail time.
Wang, Blitzer wrote, didn't have much of an answer for this and said she did not think the case involving Trump and her client would reach that point. The judges, however, countered that it could happen and eventually moved on to another issue.
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