October 13, 2016

It would give new meaning to “trumped up” lawsuit.

Donald Trump is threatening a lawsuit against The New York Times after it detailed allegations of sexual harassment by two women. Libertarian candidate Gary Johnson’s White House chances might be greater than Trump’s prospects for courtroom success against the newspaper.

His lawyer wrote the newspaper and said the story is “reckless, defamatory and constitutes libel per se.” He demanded a retraction, called the story “nothing more than a politically-motivated effort to defeat Mr. Trump’s candidacy” and claimed (his own sourcing is unknown) that that the paper “performed an entirely inadequate investigation to test the veracity of these false and malicious allegations.”

“The irony of Trump’s threat is that the landmark US Supreme Court case involving defamation suits by public officials against the press is New York Times v. Sullivan (1964),” noted Michael Dorf, a Chicago attorney who also teaches First Amendment law and has handled election law matters for President Obama.

That case held that even false statements by the media against public officials are immune from such defamation suits as long as they were published without “actual malice.” That means the paper knew they were false or published them with “reckless disregard” of whether they were accurate.

“As a candidate for president, Trump would fit within the public official standard, and I’m sure the Times, which has an army of First Amendment lawyers, would like nothing better than litigating this suit,” says Dorf. “I can’t imagine that a Trump lawsuit would survive an initial motion to dismiss based on New York Times v. Sullivan.”

In a letter to Donald Trump’s lawyer Thursday, The New York Times outlined two main defenses: It said the information it published was newsworthy. And it said the story could not have tarnished a reputation for womanizing he’s built for himself. Finally, the Times invited Trump to file a lawsuit:

If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.

Note, too, the story’s headline — “2 Women Say They Endured Trump’s Sexual Aggression.” Truth is a defense in a defamation action and, whatever the truth of the alleged incidents, there’s no dispute that the two women made those statements to the paper.

“And doing ‘insufficient investigation’ is not enough,” said Gregg Leslie, an attorney with the Reporters Committee for Freedom of the Press in Washington, D.C. “You don’t have to do any as long as you didn’t believe it (the statements) were false.”

And is this story in the “public interest,” as the law characterizes that notion? “This is about the highest public interest you could have: whether somebody is fit to be president of the United States,” says Leslie.

There’s also the problem of pre-trial discovery for Trump even if he were to win the assured motion to dismiss the case from the newspaper and, possibly, even before such a threshold matter were resolved.

“If taking his deposition, and trying to inquire about this, it would build a record that he was in the place at the time the incidents occurred,” says Mark Bailen, a First Amendment specialist at Baker & Hostetler in Washington. For example, there would whether he was on the same flight as the one woman who allege he groped her in first class.

“It then boils down to he said/she said. It will come down to that. So discovery would basically be showing that all these women were in the place they alleged to have been in when he attacked them, and that there are some merits to their claims.”

Now, could one get into other instances of Trump misbehavior? “That’s where he’d be vulnerable,” says Bailen. “You already are getting that outside the discovery content. The discovery component would require him to make these statements under oath, which puts a bit more pressure on him.”

“Remember, it was perjury that got President Clinton, not the underlying acts. That’s the benefit (of discovery).”

His hurdles are formidable. Courts, Bailen and others noted, are more inclined to dismiss such cases when they find the allegations of actual malice to have been insufficiently argued. Many federal courts have done that, Bailen noted, though state courts not as much.

There is also tactical decisions the newspaper could make that would have the effect of placing more pressure on Trump, the plaintiff. For example, if he filed a suit in a New York state court, it might be in the paper’s self-interest not to file a motion to dismiss so as to get sworn testimony from Trump.

Ultimately, legal experts note, the paper’s ace in the hole is the actual malice standard. It’s decidedly relevant that in the past decade or so, courts, especially federal ones, have required what’s known as a plausibility standard. That means the plaintiff has to alleged facts that are plausible. It’s insufficient to say a newspaper or TV station must have known that its claims are false. You have to lay a predicate that would lead to a conclusion that the outlets acted with actual malice. If you don’t, courts have increasingly dismissed cases.

There’s also a so-called doctrine of “substantial truth.” Courts have said you can’t just be held liable for just making mistakes.

“They will look at the gist of the sting of the (media outlet’s) allegations,” says Bailen. “Even if some details are wrong, if the gist is accurate, the defense won’t be held liable.”

“That comes into play here because you’re just not looking at one person’s allegations,” he says. “The New York Times has two. And others have made similar allegations against Trump. So you could make the argument that the gist or sting of the article is accurate, given that all these women have made similar allegations.”

And, that all said, Trump may fly in the face of what seems rational from a legal standpoint. It could be a bit like his presidential run, which seemed an absurdity to so many political observers.

Yes, Trump’s burden as a public figure is prodigious. But there are lots of reasons to litigate that go beyond winning and being awarded monetary damages.

As one prominent media lawyer noted, a suit lets somebody “tell their friends, clients and supporters that the story is false and their proof is that a big shot lawyer has filed a libel suit.”

Then there’s the very human inclination of seeking emotional vengeance by at least, in such a matter, inflicting huge inconvenience and fat legal costs upon your opponent.

Remember, too, the notion of deterrence. You sue because there’s the possibility that you might make other women nervous about coming forward, or cool the ardor of other media who might mull looking into your life.

Finally, just imagine how susceptible Trump might be to the arguments of advisers that were he not to sue the newspaper, it would even more of an open season on him than it appears to be. He’s being pilloried, lagging in the polls, pulling out of Virginia and spending lots of time bashing fellow Republicans such as House Speaker Paul Ryan (even a Fox News co-host chided him Thursday morning for wasting so much precious time venting over Ryan).

You can imagine him in that big Trump Tower office, with all the framed magazine covers and other photos of himself on the walls, twirling around in his chair with Manhattan out the window and declaring, “Screw ’em, let’s sue.”

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New York City native, graduate of Collegiate School, Amherst College and Roosevelt University. Married to Cornelia Grumman, dad of Blair and Eliot. National columnist, U.S.…
James Warren

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