Trump ordered to give deposition testimony in NYC campaign assault case

A state court judge in the Bronx has ordered that President Trump must sit for a videotaped deposition in a lawsuit that alleges he had authority over his employees who allegedly attacked protesters outside Trump Tower during the presidential campaign in September 2015. The case is heading for trial soon.

The case is Galicia v. Trump, issued on September 20. Trump's lawyers objected to the deposition, arguing that a sitting president cannot be required to give testimony under oath. In a prior court ruling in this case, the Court summarized the allegations as follows:

On September 3, 2015, plaintiffs assembled in front of the Manhattan office of Republican Party Presidential candidate Donald J. Trump located at 725 Fifth Avenue for the purpose of demonstrating their opposition to him as a political candidate. The high-rise building also houses commercial and residential property. Two plaintiffs were costumed in white hoods and robes, intending to call attention to the recent endorsement of Mr. Trump by David Duke, an individual associated with the Ku Klux Klan and recognized as a former KKK leader. Additionally, the plaintiffs brought with them three signs that they made which read in large letters “TRUMP MAKE AMERICA RACIST AGAIN” the word “RACIST” having displaced the word “GREAT”.

Plaintiffs positioned themselves and arranged their signs along a portion of the sidewalk opposite the entrance of the building. Security personnel approached the plaintiffs and admonished them to remove the signs. This was not the first demonstration by these plaintiffs in front of this property. This was also not the first time there were tensions between the building security and these demonstrators, however on this occasion the situation certainly became more intense. At some point, Keith Schiller (“Schiller”), Director of Security, physically attempted to remove two of the signs from where they were located tearing one in the process. In response, plaintiff Galicia attempted to wrest the sign back from Schiller whereby Schiller’s reaction was to repel Galicia ultimatelystriking him.

Rejecting Trump's arguments that he cannot be forced to give deposition testimony, Justice Gonzalez opens her analysis this way:

More than 200 years ago our founders sought to escape an oppressive, tyrannical governance in which absolute power vested with a monarch. A fear of the recurrence of tyranny birthed our three-branch government adorned with checks and balances. Chief Justice John Marshall famously stated "[t]he government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Put more plainly, no government official, including the Executive, is above the law.

Plaintiffs claim that Trump "has had a substantial role in bringing about violence on the part of his security guards." In his affidavit in support of the deposition subpoena, plaintiffs' lawyer wrote:

Prior to the September 3, 2015 attack on plaintiffs, Donald Trump made the following statement during a press conference on August 11, 2015 wherein he advised that he intended to use violence against protestors in the future, personally or through agents:

"I would never give up my microphone. I thought that was disgusting. That showed such weakness. The way he was taken away by two young women, the microphone, they just took the whole place over and the audience, which like him -- I mean, they were him. They are saying what is going on? How can this happen? That will never happen with me. I don't know if I'll do the fighting myself or if other people will. But that was a disgrace. The way they -- I felt badly for him. But it showed that he’s weak."

On August 25, 2015, defendant Trump directed defendant Keith Schiller to forcibly remove Univision reporter Jorge Ramos from a press conference where Donald Trump was speaking. The physical removal of Mr. Ramos by defendant Schiller, which was captured on film by several news agencies, occurred directly in front of the podium where Donald Trump was speaking. Despite having witnessed his bodyguard of sixteen years1 remove Mr. Ramos, Trump denied even knowing Schiller’s identity when questioned by the press corps after the event by stating, “You’ll have to talk to security. Whoever security is escorted him out.”

Plaintiff's counsel also provides other examples of Trump's public statements suggesting that other protesters should be "roughed up" at his campaign rallies, telling Fox & Friends in November 2015 that "The man you say was roughed up, he was so obnoxious and so loud, he was screaming. I had 10,000 people in the room yesterday. 10,000 people. And this guy started screaming by himself. I don't know, rough up, he should have been -- maybe he should have been roughed up because it was
absolutely disgusting what he was doing." Counsel adds that "Donald Trump has publicly given specific directives to security personnel to use physical force and to engage in unlawful conversion of protestors’ property – the same conduct that is the subject of plaintiffs’ Amended Complaint." In January 2016, during a campaign speech in Vermont, Trump said, "Throw him out into the cold. You know. Don’t give them their coat. No coats. No coats. Confiscate their coats." You get the picture.

The Supreme Court held in Clinton v. Jones (1997) that Bill Clinton was not absolved from responsibility for unofficial conduct; that case alleged that Clinton exposed himself to Paula Jones before he became president. In Zervos v. Trump, 171 A.D.3d 110 (1st Dept. 2019), the Appellate Division has also held that State Supreme Court may exercise jurisdiction over the President (that case involved defamation). But this case raises a new issue: whether the President can be forced to provide sworn testimony for trial. Citing Zervos, Justice Gonzalez stated, "the First Department, which this Court must follow, recently contemplated both the President's involvement during discovery and a trial judge deeming the President's participation at trial necessary." While the plaintiffs in this case did not take Trump's deposition in discovery, they did not waive his trial testimony. "[T]here is no lawful basis to conclude that the President's testimony may only be taken during discovery." Here is the Court order:

"ORDERED, that defendant President Donald J. Trump shall appear for a videotaped deposition prior to the trial of this matter and provide testimony for the use at trial."