Now, saying someone is a liar isn’t always an assertion of fact. Sometimes it’s just an opinion, or exaggeration, or an insult. That’s what Trump claimed; he demanded that the court throw out the defamation lawsuit, insisting that his repeated statements calling Zervos a liar were merely his opinion: “Political statements in political contexts are nonactionable political opinion.”

But “an assertion of fact soberly presented from someone in a position to know the truth can amount to libel. A lot depends on context.”

“Not all liar libel cases are created equal. The plaintiff has a stronger case where the defendant has personal knowledge of the matter. If the president himself denies having an affair, this is a statement of fact. After all, he knows whether he did or didn’t.”

The New York court rejected Trump’s arguments and denied his motion. The court held that, according to the complaint, Trump had indeed made at least one defamatory statement of fact that “cannot be characterized simply as opinion, heated rhetoric or hyperbole.”

“Trump’s comments about Ms. Zervos telling ‘phony stories’ could be construed as defamatory, suggesting she ‘is contemptible because she “fabricated” events for personal gain. … That defendant’s statements about plaintiff’s veracity were made while he was campaigning to become president of the United States does not make them any less actionable.’”

The court also rejected Trump’s alternative argument, which was that no one can sue him while he’s president because it would interfere with running the country. The U.S. Supreme Court already rejected this argument back in 1997, in Clinton v. Jones, when a Democratic president tried to use it. Although a president is absolutely immune from suit for his “official acts,” Paula Jones sued President Clinton for acts before he took office. The Supreme Court ruled that they were not “official acts,” and that Clinton was entitled neither to dismiss nor to delay her lawsuit just because he happened to become president.

Trump’s lawyers tried to get around this by pointing out that Jones had filed suit in a federal court, while Zervos filed suit in New York. “So what?” you ask. Well, the Constitution and federal laws are “the supreme law of the land; and the judges in every state shall be bound thereby.” Trump therefore argued that, state courts, unlike federal courts, can’t compel the president to do anything that might interfere with running the country, including be a defendant in a state lawsuit. As you probably guessed, this argument was laughed out of court, inasmuch as Trump is neither the Constitution nor a federal law.

“‘No one is above the law … The rule is no different for suits commenced in state court’ as long as the suit concerns the president’s unofficial conduct. Nothing in the supremacy clause … says a president cannot be called to account in state court for conduct not related to his federal responsibilities.”

Naturally, Trump immediately appealed, making the same arguments that his statements were merely “opinions made in quintessentially political forums during a political campaign,” and that he should be immune from suit in state court anyway because the Supremacy Clause means “that state governments, including their courts, refrain from interfering in the operations of the federal government.” Today, the appellate court rejected his appeal and affirmed the lower court decision on both grounds. The court agreed that Trump’s accusations against Zervos were actionable statements of fact, not opinions:

“Here, defendant’s denial of plaintiff’s allegations of sexual misconduct is susceptible of being proven true or false, since he either did or did not engage in the alleged behavior. To be sure, a denial, which is a statement of purported fact and not mere opinion, does not always provide a basis for a defamation claim, even though it implicitly claims that the alleging party is not telling the truth. However, a denial, coupled with the claim that the accuser is or will be proven a liar, impugns a person’s character as dishonest or immoral and typically crosses the line from nonactionable general denial to a specific factual statement about another that is reasonably susceptible of defamatory meaning. The use of the term ‘liar’ could be perceived in some cases as no more than rhetorical hyperbole that is a nonactionable personal opinion. However, that is not the case here, where, again, defendant used the term in connection with his specific denial of factual allegations against him, which was necessarily a statement by him of his knowledge of the purported facts. … defendant’s flat-out denial of a provable, specific allegation against him concerning his own conduct, accompanied by a claim that the accuser was lying, could not be viewed even in that context as a rhetorical statement of pure opinion … Nor is there any support for defendant’s claim that such statements when made in the context of a heated political campaign are protected political speech.”

The court also rejected Trump’s creative view of the Supremacy Clause:

“The Supremacy Clause was never intended to deprive a state court of its authority to decide cases and controversies … the Supremacy Clause provides that federal law supersedes state law with which it conflicts, but it does not provide that the President himself is immune from state law that does not conflict with federal law. … Defendant’s reading of the Supremacy Clause — that it bars a state court from exercising jurisdiction over him because he is the ‘ultimate repository of the Executive Branch’s powers and is required by the Constitution to be always in function’ — finds no support in the constitutional text or case law. Defendant’s interpretation conflicts with the fundamental principle that the United States has a ‘government of laws and not of men.’ … the President is still a person, and he is not above the law.”

The Appellate Division’s full opinion is here.