The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This week, the New York Times published a story recounting claims made by two women that Donald Trump groped or otherwise touched them inappropriately without their consent. Other news outlets have since published similar stories recounting claims made by other women (collected in a timeline here).
Trump is outraged by these stories and claims they are libelous. His lawyer Marc Kasowitz sent a letter to the Times claiming that its story was "reckless, defamatory and constitutes libel per se." The letter demanded that the Times cease further publication of the story and "issue a full and immediate retraction and apology."
Today, Times attorney David McCraw responded. The letter, available here, provides a forceful defense. It notes that the Times reporters made diligent efforts to confirm the accusations and published Trump's denials (i.e. that the Times did not show reckless disregard for the truth in publishing the story). It further notes that the underlying issue is clearly one of national importance; indeed, it is an issue that Trump himself has discussed extensively during the campaign, and there is no question that Trump is a "public figure" for purposes of libel law.
Finally, and perhaps most devastating, McCraw's letter notes that a libel claim, to be successful, must allege damage to the subject's reputation. Yet in this case, McCraw notes, the allegations in the story are fully consistent with Trump's own repeated claims about his conduct and other public statements he has made. Notes McCraw: "Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself." The truth hurts.
It's clear that the Times will not back down. It also seems fairly clear that Trump has no case. He may well file a lawsuit—or continue threatening to do so for the next 25 days—but even if such a suit were to be filed, I would expect it to be dismissed rather quickly. From what I have seen, it does not seem that Trump has much of a case.