After a few detours and delays (we’ve been busy challenging Wisconsin’s irrational decision to pursue in person voting on April 7 during the COVID-19 pandemic), we’re back. Specifically, back to President Trump’s abuses of the legal system by filing meritless defamation suits. First, I’ll discuss the cases his campaign filed against the New York Times, CNN, and the Washington Post in turn, and apply the law of defamation to each. Then, I’ll speculate about why the cases were filed by his campaign, not by him personally. Finally, I’ll recommend ways that the legal system can (and should) deal with frivolous defamation suits like this.
Note: the legal rules I’ll be applying are in the previous posts in this series. If you’re skeptical that I’m stating the rules correctly, go back to those posts and look them up. I’m not going to do all of the work for you.
New York Times Suit[1] Allegations
The claim is that Times columnist Max Frankel defamed the Trump campaign when he wrote:
There was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy because they had an overarching deal: the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy, starting with relief from the Obama administration’s burdensome economic sanctions. The Trumpites knew about the quid and held out the prospect of the quo.[2]
The President alleges this is false because the Mueller Report confirmed “that there was no conspiracy between the Campaign and Russia in connection with the 2016 Presidential Election, or otherwise.”[3] Moreover, the Times knew its accusation was untrue because it is “extremely biased against the Campaign, and against Republicans in general,” and because “[e]xtensive information, including stories in The Times published before the Defamatory Article, had put The Times and the world on notice that there was no conspiracy between the Campaign and the Russian government and there was no ‘quid pro quo’ or ‘deal’ between them.”[4]
Applying The Law To The Times Suit
Substantial and Material Falsity: Recall that if the “gist or sting” of an allegedly defamatory statement is accurate, the statement is not defamatory, and that if the statement is false but it doesn’t hurt the plaintiff’s reputation more than the whole truth would, that also bars a successful defamation claim. Add to these rules the requirement that President Trump, as a public official, maintains the burden of persuading the court that the statement is false,[5] and there is no reasonable argument that the President can win this lawsuit on the most basic issue of falsity.
First, it’s a little silly for someone to argue that candidate Trump was not seeking Russian assistance when he, uh, expressly asked for it: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”[6] But let’s take the suit at face value, and consult the source that the complaint treats as the ultimate source of truth: the Mueller Report.
Maybe the President’s lawyers didn’t read the entire report, because no one who had could even think about using it as a source to exonerate Trump or his campaign regarding interactions with Russians.
Maybe the President’s lawyers didn’t read the entire report, because no one who had could even think about using it as a source to exonerate Trump or his campaign regarding interactions with Russians. Section IV of the Mueller Report, for example, is entitled “Russian Government Links To And Contacts With The Trump Campaign.”[7] The allegations of the Times complaint would lead you to believe that it might take a couple paragraphs to discuss that the investigators found nothing. To the surprise of no one who is looking at this as a critical thinker, however, Section IV is 112 pages long and goes on at length about the Trump Campaign’s links to the Russian government.[8] And its conclusion is damning:
In sum, the investigation established multiple links between Trump Campaign officials and individuals tied to the Russian government. Those links included Russian offers of assistance to the Campaign. In some instances, the Campaign was receptive to the offer, while in other instances the Campaign officials shied away. Ultimately, the investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities.[9]
In fact, one of the post-election “links” formed the basis for General Michael Flynn’s guilty plea for lying to investigators. Specifically, after the outgoing Obama Administration imposed sanctions against Russia after its interference in the 2016 election came to light, Russian Ambassador Sergey Kislyak and Flynn had a telephone conversation, after which Russia announced that it would not retaliate against the sanctions; Kislyak later told Flynn that Russia had chosen not to retaliate based on Flynn’s request that it not do so.[10]
The President’s complaint against the Times accurately asserts that the Mueller Report found “no conspiracy”[11] (yes, the bold is in the original) between the Trump Campaign and Russia. But that’s not what the article charged. It alleged a wink-and-nod deal, and the facts laid out in the Mueller Report permit that inference. That dooms an argument that the article contains a falsehood and undermines the President’s suit as a result.
Known Falsehood Or Reckless Disregard For The Truth (Actual Malice): We don’t have to spend much time on this, because if President Trump can’t prove falsity in the first place, he necessarily can’t prove the defendants knew the article was false. But it’s still worth noting the low quality of the actual malice allegations. There are two broad categories: first, the President claims that the Times must have known the article was false because it and the writer are “extremely biased against the Campaign[.]”[12] The fact of bias, without more, doesn’t establish actual malice; in fact, adopting that approach would knock out opinion journalism on all points of the political spectrum, undermining the First Amendment’s core purpose of protecting caustic, critical speech aimed at government officials.
Second, the President’s complaint alleges that many news stories, included some published in the Times, contained information inconsistent with the existence of an “overarching deal”: specifically, denials from individuals from Russian and the Trump Campaign who were present at a meeting in Trump Tower during the summer of 2016 that the meeting was held to try to establish a “deal.”[13] So what? No writer or publication is obligated to take the denials of any person at face value. And as the Mueller Report shows, focusing only on the Trump Tower meeting ignores multiple ties and communications between Russia and the Trump Campaign. The allegations of actual malice fall far short of the legal minimum.
The Full Context Of The Statement: Frankel’s article is clearly labeled as “Opinion,”[14] which is significant but, as you know from essays past on this blog, not decisive in evaluating a defamation claim. More important, reading the entire article instead of merely the “snippets” quoted in the complaint, as defamation law requires, refutes the complaint’s implication that the 2016 Trump Tower meeting is the only basis for the article’s “quid pro quo” charge. Instead, Frankel also references Flynn’s call with Kislyak and Michael Cohen’s negotiations on Russia’s annexation of Crimea,[15] which are accurate statements of fact that directly support his conclusion that there was a quid pro quo. President Trump’s myopic focus on one aspect of the article is not permitted.
CNN Suit[16] Allegations
The complaint asserts that an article published on CNN.com by Larry Noble falsely stated that the Trump campaign “assessed the potential risks and benefits of again seeking Russia’s help in 2020 and decided to leave that option on the table.”[17] It claims that the statement is false, citing a number of statements by members of the Trump Administration asserting its opposition to foreign interference in U.S elections. Finally, the complaint alleges that CNN must have known its statement was false because it is very biased against the Trump campaign,[18] Noble is also very biased against the campaign,[19] and that to make the claim that the campaign had left the option to seek help Russia “on the table,” Noble and CNN must have disregarded the “[e]xtensive public information,” which as far as we can tell from reading the complaint is the Administration’s own statements, establishing that the campaign has not in fact left that option on the table.[20]
Applying The Law To the CNN Suit
The Full Context Of The Statement: The President’s complaint picks out 23 words in an article[21] that contains just under 2,000 words, which is an automatic red flag when the law prohibits plaintiffs from bringing a defamation claim based on “snippets.” Moreover, the article is clearly labeled “Opinion,” which, while not entirely outcome determinative, as a matter of law cautions the reader that what follows may combine recitations of facts, drawing inferences from those facts, and criticism. Noble begins by discussing the Mueller Report and its conclusions, including that Mueller believed the evidence insufficient to prove there was a conspiracy between Russia and Trump campaign officials, but accurately notes that Mueller also concluded there were abundant links and communications between campaign officials and Russians, and the campaign was receptive to some of the Russian overtures of help. Noble then discusses Trump’s statement in an interview aired a few days before his article appeared that if a foreign government offered him damaging information on his 2020 opponent, “I think I’d take it.”[22]
Noble then returns to the Mueller Report, discussing its factual findings and criticizing Mueller’s expressed rationale for not charging Donald Trump Jr. criminally for his participation on the June 2016 meeting at Trump Tower. He concludes by discussing three situations, all accurately: Trump lawyer Rudy Giuliani’s planned trip to Ukraine for the purpose of urging an investigation into ties between Hunter Biden and a Ukrainian gas company; Jared Kushner’s refusal to tell an interviewer whether he would call the FBI if he received an offer of campaign help from Russia; and the President’s own admission days before that if he were offered damaging information on his 2020 opponent, he would probably take it.
Only at this point, after providing the reader with the factual basis for his conclusion, does Noble assert that the Trump campaign “assessed the potential risks and benefits of again seeking Russia’s help in 2020 and decided to leave that option on the table.” In the full factual context of the article, which was labeled an opinion piece, reasonable readers would understand that Noble’s statement was his own inference, drawn from plainly-stated facts in the Mueller Report that established the campaign’s interest in receiving Russian help during the 2016 campaign, Giuliani’s own statements about his planned trip to Ukraine for the avowed purpose of urging a foreign government to dig up damaging information on a potential opponent’s son, Kushner’s refusal to say that he would report a Russian offer of campaign dirt to the FBI, and President Trump’s own admission that if he were offered negative information about an opponent, he would probably take it. Readers are fully able to evaluate these facts and decide for themselves if Noble is right or wrong to conclude that the Trump campaign had left the “option” of Russian help “on the table.” And that means a defamation claim has no legal basis.
Known Falsehood Or Reckless Disregard For The Truth (Actual Malice): The allegations of actual malice are laughably thin. Ill will, hatred, and bias can never show that a defendant knew a statement was false or harbored serious doubts about its truth but published anyway, unless there are other facts that more directly establish the mental state that a public official must allege to get out of the starting gate. And all the complaint alleges beyond ill will and bias is the “extensive public information,” consisting of Trump associates’ own statements criticizing foreign interference in United States elections, that supposedly shows that CNN must have known what it said was false, because the campaign claimed the opposite was true. The claim that this shows actual malice is absurd; if this were the law, any public official could sue for defamation and establish actual malice by pointing to his own public statements inconsistent with the claimed defamatory statements. I don’t know of any cases like that, and it’s not because I haven’t done enough research.
Washington Post Suit[23] Allegations
The suit against the Post alleges that an article by Paul Waldman contained the false and defamatory statement “who knows what sort of aid Russia and North Korea will give to the Trump campaign, now that he has invited them to offer their assistance?”[24] The allegations of why the article is false and the facts supporting actual malice are identical to those in the complaint against CNN: first, the administration and the campaign have proclaimed that foreign interference in U.S. elections is bad and disavowed any intent to accept such help;[25] and second, the Post is extremely biased against the Trump campaign, and it must have known the statement in the article was false because it was inconsistent with the administration’s statements.[26]
Applying The Law To The Post Suit
The Full Context Of The Statement: Like the the Noble article on CNN.com, Waldman’s article[27] is also expressly labeled “Opinion,” and appeared shortly after President Trump’s televised statement that if offered dirt on an opponent by a foreign government “I think I’d take it.” Waldman’s article, however, was focused on his prediction that the Trump campaign would approach re-election in much the same way as President Trump had approached the 2018 midterm elections.
Unlike Noble, Waldman did not discuss the interview in which President Trump said he would probably accept dirt on his 2020 opponent from a foreign government; instead, he linked to the transcript of the interview in the passage that the campaign asserted was defamatory. Readers knew it was an opinion piece, and they were free to click the link to see Waldman’s factual support for his assertion that Trump had invited North Korean and Russian assistance. When readers have the same facts that a writer uses to support an inference or reach a conclusion, a statement should not support a defamation claim.
Substantial And Material Falsity: President Trump’s claim essentially asserts that if he never literally said that he invited Russian or North Korean help, that is the end of the inquiry. To Trump’s legal team, it does not matter that President Trump is quoted as saying, “[i]t’s not an interference, they have information. I think I’d take it” in response to a question about whether he would want a foreign country to provide information about a political opponent.[28] In other words, in Trump World any deviation from literal truth is defamatory. That upends the rule that if the “gist or sting” of the accusation is true, the statement cannot be false for defamation purposes. It also ignores the fact that by simple logic, willingness to accept information from any foreign country (a group that includes North Korea, Russia, and all other countries) is worse than willingness to accept it from either North Korea or Russia. President Trump will not be able to prove that Waldman’s statement is substantially or materially false, and he should lose the suit for that reason alone.
Why Did The Campaign Sue?
At first, I thought that naming the Trump Campaign as the plaintiff in these suits, rather than President Trump personally, was an attempt to protect the President from having to produce documents or give a deposition in the discovery process. But when I concluded that the legal claims were so weak that none of the suits would likely survive a motion to dismiss, and the cases would never get to the discovery stage, I realized that couldn’t be the explanation.
I think the suits were brought by the campaign because most of the statements claimed to be defamatory were actually directed at the campaign itself, not at President Trump. Fair enough. But to the extent the Trump legal team tries to argue that the defendants can’t use statements by the President himself, that gambit will fail. Everyone knows that President Trump is in charge of his campaign. And an accurately-reported statement by President Trump himself establishes the substantial truth of that statement, even if the campaign never made that statement.
How Can We Stop Abusive Defamation Suits?
As I said in the introduction to this series, it’s clear from the lawsuits’ complete lack of legal merit that these cases were not brought to restore President Trump’s reputation. Instead, they are campaign tools to galvanize his base, to attack the “Fake News Media,” and most important, to threaten reporters, newspapers, websites, and television stations that if they dare to criticize the President, they will have to face a lawsuit that will be expensive even if it is dismissed early in the process. You have to give the President credit: he does know how to hammer home a theme.
But as a trial lawyer with 35+ years of experience in state and federal court, I see this as an illegitimate use of the court system, and there are ways to deal with it. Federal Rule of Procedure 11(b)(1) and (2) state that by the act of filing a lawsuit, the filing attorney is representing to the court that “it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation,” and that “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law[.]” Trump’s lawsuits violate both of these requirements.
Even after a judge finds that an attorney or a client has violated Rule 11, however, it does not mean that significant sanctions will be imposed. First, it’s hard to express how much judges loathe motions for sanctions. They rank near discovery disputes as things that judges simply do not want to deal with. Second, even if a judge decides that sanctions are appropriate, it isn’t certain what they will be, and they cannot be purely punitive. Rule 11(c)(4) provides that “[a] sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation[.]” It is unusual for a court to award full attorneys’ fees after a Rule 11 violation. These cases would warrant that severe a sanction, but judges have broad discretion in awarding sanctions, and even with life tenure some federal judges might not want to incur the wrath of President Trump and his base.
My preferred option for dealing with abusive defamation suits probably doesn’t apply here, because it’s state legislation that aims to deter abusive defamation suits – like these three – that are brought to intimidate and threaten writers and speakers who are addressing important public issues. Such cases are called “Strategic Lawsuits Against Public Participation,” and as of this writing 31 states have enacted “anti-SLAPP laws” that seek to limit abusive defamation suits by requiring plaintiffs to support their cases even before discovery starts. The other 19 should get their act together.
Specifically, “[u]nder most anti-SLAPP statutes, the person sued makes a motion to strike the case because it involves speech on a matter of public concern. The plaintiff then has the burden of showing a probability that they will prevail in the suit — meaning they must show that they have evidence that could result in a favorable verdict. If the plaintiff cannot meet this burden and the suit is dismissed through anti-SLAPP proceedings, many statutes allow defendants to collect attorney’s fees from the plaintiff.”[29] A strong anti-SLAPP law requires a plaintiff to have evidence on actual malice even before the case starts, and some encourage an award of not only attorney fees but a separate monetary sanction to deter the plaintiff if there is a risk that similar suits will be brought.
The weakness of their pleadings aside, President Trump’s lawyers knew what they were doing: New York does not have an anti-SLAPP law, and although both Georgia and Washington, D.C. have them, several federal courts have ruled that state anti-SLAPP laws do not apply in federal court. Obviously, it’s hard to deter a campaign that can raise lots of money overnight, but something is better than nothing, and if lawyers were required to pay anti-SLAPP awards personally, that might cause some to rethink their participation in charades like the campaign suits. We need a federal anti-SLAPP statute, and we need it soon. Unfortunately, with the current composition of the U.S. Senate, that will not happen.
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[1] https://assets.donaldjtrump.com/2017/web/hero_images/Draft_NYT_Complaint_(NY_State_Court).pdf (return) [2] Quoted in id., ¶ 9. There are others alleged with specificity in ¶ 21, but this statement captures the “gist or sting” of all of the supposed falsehoods, so if this is not actionable the others would likely fail as well. Also, this is a blog post, not a legal brief. (return) [3] Id.,¶ 11. (return) [4] Id.,¶¶ 12-13. (return) [5] Air Wisconsin Airlines Corp. v. Hoeper, 571 U.S. 327 (2014); see also Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). (return) [6] https://www.nytimes.com/2016/07/28/us/politics/donald-trump-russia-clinton-emails.html (return) [7] “Report On The Investigation Into Russian Interference In The 2006 Presidential Election,” (Mueller Report), Vol. 1, at 66. (return) [8] Id. at ii-iv. (return) [9] Id. at 173 (emphasis added).(return) [10] Id. at 168-72.(return) [11] Times Complaint, ¶ 11.(return) [12] Id., ¶ 12.(return) [13] Times Complaint, ¶ 13.(return) [14] https://www.nytimes.com/2019/03/27/opinion/mueller-trump-russia-quid-pro-quo.html(return) [15] Id.(return) [16] http://assets.donaldjtrump.com/2017/web/hero_images/Complaint(1).pdf(return) [17] Id., ¶ 12.(return) [18] Id., ¶ ¶ 17-21.(return) [19] Id., ¶ 22.(return) [20] Id., ¶ 23.(return) [21] https://www.cnn.com/2019/06/13/opinions/mueller-report-trump-russia-opinion-noble/index.html(return) [22] https://abcnews.go.com/Politics/id-exclusive-interview-trump-listen-foreigners-offered-dirt/story?id=63669304(return) [23] http://assets.donaldjtrump.com/2017/web/hero_images/Complaint_Wash_Post_Final.pdf The suit against the Post also contains a claim that the article’s statement asserting that the Trump Campaign “tried to conspire with [a] sweeping and systematic attack” by Russia against the 2016 presidential campaign. Id., ¶ 13. For the same reasons that the very similar claim in the Times article is not defamatory, this part of the claim against the Post is also doomed.(return) [24] Id., ¶ 15.(return) [25] Id., ¶ 16.(return) [26] Id., ¶¶ 18-20.(return) [27] https://www.washingtonpost.com/opinions/2019/06/20/trump-i-can-win-reelection-with-just-my-base/(return) [28] https://abcnews.go.com/Politics/abc-news-oval-office-interview-president-donald-trump/story?id=63688943(return)
