Free Speech

Trump Campaign's Libel Lawsuits Against New York Times and Washington Post

|The Volokh Conspiracy |

I've been slow in posting about these, because I've been occupied with several briefs I've had to finish and file (I hope to blog about them soon), and because I'm still try to run down a few issues related to these libel lawsuits. But Jacob Gershman (Wall St. J.) has a very good story about them; here is the part that conveys my thoughts:

[R]ecent past presidents looked at libel lawsuits as a political loser or beneath their dignity, says Prof. Eugene Volokh …. He said Mr. Trump [departing from this tradition] may have spotted a chance to expose media bias and burnish his image as a politician who fights back.

But his lawsuits aren't without risk, said Mr. Volokh. Mr. Trump and past presidents have avoided testifying as defendants in civil lawsuits by arguing that the proceedings would interfere with their public duties. It would be harder for Mr. Trump to dodge deposition when his campaign is the one doing the suing, said Mr. Volokh….

Should the lawsuits survive motions to dismiss, the Times and the Post would likely get an opportunity to examine and cross-examine Mr. Trump under oath about the articles in question and their assertions about his dealings with Russia …. "It's hard to see how you could resist testifying about that," said Mr. Volokh.

Note that the lawsuits are nominally brought on behalf of the Trump campaign rather than Trump himself, but I doubt that this would keep Trump from being deposed as to the factual allegations on which he may have personal knowledge.

Advertisement

NEXT: Did Louisiana Enact a Bogus Health Law as a Pretext for Banning Abortion?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Interesting perspective. Bring on the popcorn!

  2. “Should the lawsuits survive motions to dismiss”

    I doubt they are intended to survive. Its the filing and its later dismissal by a “corrupt” judiciary that are desired.

    Campaign by lawsuit.

    1. It also works in the unlikely event they survive the motion to dismiss. The Plaintiff and relevant people connected to the plaintiff could resist all discovery and then blame corrupt judicial officials for the inevitable sanctions (including dismissal).

  3. If people in the media were conspiring against and intentionally misconstruing the facts to harm a private citizen, or anyone but Trump, would they be liable?

    1. If the government were actively conspiring against and intentionally making up the facts to harm an opponent, would that be actionable?

    2. I meant the “No” below for this comment. The answer is no, because this case is opinion based on disclosed facts, including Trump’s own comments, like in the Washington Post lawsuit. Much like my opinion of you based on your comments and things I’ve heard about you isn’t actionable.

      1. Why would I sue you for loving me?

  4. No.

  5. I applaud the campaign for bringing these suits. It’s about time someone held this extremely biased mainstream media outlets to task, for their seemingly constant fabrications and promulgations of false narratives for those opposed to their progressive agenda, and support of the Democratic machine. Go get ’em!

    Just look at the NY Times this past Sunday, with their obvious smear of Kavanaugh based on virtually nothing!

    1. One of the Washington Post opinion pieces he’s suing over is an opinion piece based on Trump’s own public comments.

      1. That doesn’t actually guarantee it’s not libelous, depending on what they say in the opinion piece. Just because you call something “an opinion piece” doesn’t mean you’re not making factual assertions, and just because you say it was based on somebody’s statements doesn’t mean that those factual assertions are genuinely based on the statements.

        1. Right, but the Washington Post piece he’s suing over is an opinion that Trump’s public assertion that he would take information from foreign sources is inviting foreign interference. That’s an opinion based on disclosed facts.

          1. Also there is substantial established evidence of (a) Russia’s actions to help Donald John Trump’s campaign, (b) a bizarre series of interactions between Trump family/associates and Russia contacts, and (c) equally bizarre obsequious fawning by Trump over Putin.

            There’s plenty of grounds there to hold an opinion, despite Brett’s sputtering indignation. After all, it’s not as if you can claim Trump would never stoop to the actions he’s accused of. Remember: The unofficial end of Mueller’s investigation was on 24 July, when he testified to Congress there were insufficient grounds to prove Trump colluded with a foreign government to affect a U.S. election.

            The very next day Trump tried to extort collusion from a foreign government to affect a U.S. election. The Russian allegations looked much more credible after than, regardless of what Mueller was able to find.

            1. Let’s not forget Trump saying “the pressure’s off” to a Russian diplomat the day after he fired Comey, as Trump admitted, to shut down the Russia investigation.

              1. I imagine the Post’s lawyers will want to question Trump on that very point. The Time’s attorneys might want to explore why Trump’s son-in-law asked the Russian ambassador whether he could use their embassy’s secure communication lines to communicate with Moscow – this rather than the American government’s and during the presidential transition. Or whether DJT knew his campaign head was giving private briefings to someone U.S. Intelligence considered a Russia spy. Or if Trump knew his National Security Adviser was lying about his Russian contacts to the Vice President and FBI.

                Both the WP & NYT will want to get Trump on the record about Russian efforts to help him. For instance, Russian Intelligence hacked emails from John Podesta, a Clinton associate. They sat on this information almost 8 months, then released the first batch less than an hour after the Access Hollywood story broke, threatening their boy’s campaign.

                Likewise, the two papers will probably focus on the secret negotiations between the Kremlin and Michael Cohen over a massive business deal – negotiations that went on right up to the eve of the election. Since Trump lied repeatedly about this during the campaign I’m sure it’s worth an hour or two of questions….

            2. I will never for the life of me understand why Trump supporters cannot understand this, but negative factual inferences and opinions about him are often based on the things he or his extremely close associates say, do, or write in public.

              1. Except Brett didn’t say that. He said that “opinion” isn’t a blanket shield for libel. That’s not remotely an evaluation of whether this particular opinion piece was libelous.

            3. ‘ there is substantial established evidence of (a) Russia’s actions to help Donald John Trump’s campaign”

              This is only true if you believe in objective reality, which apparently is minority of Americans nowadays.

    2. ‘Things are unfair and I want the government to fix it for me!’ Says the conservative for small government.

  6. Would this be the same Donald Trump who has filed thousands of lawsuits, often clear PR/nuisance stunts? The same person who sued Deutsche Bank because they ask he repay a loan, claiming the Great Recession was an “act of god” which invalidated the debt?

    Look, these lawsuits are trolling – pure and simple. They’re designed to impress the absolute dimmest of Trump’s supporters, who either can’t tell when they’re being conned or actually enjoy the experience. What do you think would happen if either suit actually proceeded to discovery? Trump would then drop it like a hot potato; everyone knows he’d be shredded apart if forced to testify under oath.

    I doubt you could invent a more “don’t throw me in that brier patch” scenario for the WaPo or NYT than a lawsuit permitting them to question the country’s biggest liar under penalty of perjury.

    1. ” They’re designed to impress the absolute dimmest of Trump’s supporters”

      Which means they’ll likely work.These people love conspiracy theories baked with as small an amount of reality as possible.

  7. Should the lawsuits survive motions to dismiss, the Times and the Post would likely get an opportunity to examine and cross-examine Mr. Trump under oath about the articles in question and their assertions about his dealings with Russia …. “It’s hard to see how you could resist testifying about that,” said Mr. Volokh.

    I have actually seen it suggested that the Times and the Post will NOT file motions to dismiss for this very reason — to get a deposition of Trump. If I were their lawyer, I would certainly raise that as an option.
    And what does Trump do then?

    1. Fail to comply with discovery and then blame corrupt deep state judges for the inevitable sanctions and dismissal of the case. A sizable majority of people who support him will accept this excuse.

      1. “A sizable majority of people who support him will accept this
        excuse.”

        Careful now…one could read your statement as calling his supporters ignorant, loser buffoons who are clueless about how the judiciary works, don’t know when they’re being used, and can’t comprehend that the President only wants their vote – and will say anything to get it – and otherwise could not care less about them.

        1. And then they will sue you for libel.

      2. True, unfortunately.

    2. I have actually seen it suggested that the Times and the Post will NOT file motions to dismiss for this very reason — to get a deposition of Trump. If I were their lawyer, I would certainly raise that as an option.

      I assume that the Post and Times have insurance coverage for these sorts of suits. I don’t think the insurance companies would look too kindly on, “No, we don’t want to get rid of these cases quickly and cheaply because we want to exploit them for newsgathering purposes.”

    3. “And what does Trump do then?”

      claim executive privilege, and hope his buds in the judiciary back him up out of fear of being shit-tweeted.

  8. I have been on both sides (journalist-publisher and lawyer) of discussions concerning newsroom legal issues in general and defamation actions in particular. This litigation might precipitate the extraordinary circumstance in which the journalists argue ‘forget trying to win early — we want to ask some questions under oath.’

    I would pay $500 an hour to observe some of those discussions in this context.

    1. Conducting discovery would not preclude filing of a motion to dismiss.

      1. It would preclude filing a motion to dismiss before conducting discovery.

  9. “I doubt that this would keep Trump from being deposed as to the factual allegations on which he may have personal knowledge.”

    Mueller, conducting a criminal inquiry, shrank from asking for Trump’s testimony, yet a party in a civil lawsuit would have no trouble demanding and obtaining it. What does this say about Mueller?

    1. The main thing it says is that he knew Trump’s testimony wouldn’t help him any, because he was aware quite early in the investigation that he was investigating fake allegations with nothing behind them.

      He just kept it up because, so long as the investigation was ongoing, many things Trump might normally have done to get control over the DOJ could be construed as “obstruction of justice”.

      They were just running out the clock.

      1. Belligerently ignorant, backward, and bigoted is no way to go through life.

        Thank goodness the cure is replacement.

      2. If you don’t believe that Trump obstructed justice, when he admitted it on national TV, then there’s nothing I can say to change your mind.

      3. Except the guys he sent to prison, there is that

        The allegations were not fake.
        Perhaps unproveable, perhaps wrong, never fake

      4. When you say “fake” do you mean that events didn’t happen? Or that the events weren’t criminal? Or what?

        1. LawTalkingGuy, do you know where the term, “fake news,” came from? It came from online scam artists who created actual fake newspapers—formatted and named to look like they were legacy publications with typical newspaper coverage and long-standing publication histories. Then they filled them up with completely made-up stories to get clicks. If I remember right, the industry started in Romania.

          In an interesting twist, the fake publishers experimented with baiting both left-wing readers, and right-wing readers. The publishers soon discovered that the right-wingers were more voracious bait-takers than the others, so the fake news industry evolved to match its market—selling false outrage to right-wing suckers.

          That is where the, “Fake News,” term seems to have come from. Given the potential for the real story of fake news to embarrass the political right, it quickly co-opted the term, transforming it into an epithet little different than, “lame-stream media.” Trump took it several steps farther, draining the term of any meaning at all, except as a signifier of his displeasure.

          1. Last I checked, the term came from HRC.

  10. The one thing I do not understand about the case against the New York Times is why was it filed in state court when it could have been in federal court based on diversity jurisdiction? I would assume that state judges in liberal New York are more likely to be hostile towards Trump.

    1. Is there diversity jurisdiction or is the Trump campaign incorporated in New York?

  11. Do the NYT and WaPo have to ask for the dismissal before deposing President Trump? If I was them I would love to depose Trump.

  12. What’s the point of obtaining Trump testimony. It’s absolutely worthless.

Please to post comments

Comments are closed.