FAN 127.1 (First Amendment News) Trump lawyer to NYT: We will “pursue all available actions” — NYT lawyer: “we welcome the opportunity” to go to court

Given all the talk in the news about the election and the prospect of lawsuits against the press, I have collected several items to help shed additional light on the matter.  

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Alan Rappeport, Trump Threatens to Sue The Times Over Article on Unwanted Advances, NYT, Oct. 13, 2016

NYT Counsel Responds 

David McCraw

David McCraw

In a letter to one of Trump’s attorneys, Marc E. Kasowitz, sent Thursday, New York Times general counsel David McCraw wrote: “The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a ‘piece of ass.’ Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. 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.'”

“But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance — indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the woemn’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. 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.”

See also Tessa Berenson & Charlotte Alter, Here’s Everything You Need to Know About the Sexual Allegations Against Donald Trump, Time, Oct. 13, 2016

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According to CNN: “Trump said at a Thursday afternoon rally in Florida that “we are preparing” a suit against The Times.”

“‘NYT editors, reporters, politically motivated accusers better lawyer up,’ a Trump campaign official said.”

Headline: “Trump Can Sue for Defamation, but Proving It is a Different Story”

In the Wall St. Journal Jacob Gershman reports: “[F]rom a legal standpoint, Mr. Trump could have a very hard time proving libel in court should his lawyers actually follow through with a lawsuit.

Dean Ken Paulson

Dean Ken Paulson

“‘Donald Trump is pretty much libel-proof,’ First Amendment expert Ken Paulson told Law Blog.”

“That’s because libel law sets much higher standards of proof for plaintiffs who are famous people or public officials. When it comes to defamation litigation, public figures like Mr. Trump have to establish that not only a statement was false and defamatory, but also published with actual malice.”

“That means the publication either knew the allegedly defamatory statements to be false before publishing them or published them with a reckless disregard for the truth.”

“‘[I]t’s hard to conceive of more of a public figure than someone running for the most powerful job in the world on a major party ticket,’ said Mr. Paulson, dean of the College of Media and Entertainment at Middle Tennessee State University. . . .”

See also Paul Farhi & Robert Barnes, A Trump libel suit against the Times? Don’t count on it succeeding, Washington Post, Oct. 13, 2016

Trump & Spokesperson Reply

The Washington Post quoted Mr. Trump as saying: “‘These vicious claims about me of inappropriate conduct with women are totally and absolutely false,’ Trump said at an afternoon rally here.”

“Trump spokesman Jason Miller said the ‘entire article is fiction.”

“‘[F]or the New York Times to launch a completely false, coordinated character assassination against Mr. Trump on a topic like this is dangerous,’ Miller said in the statement. ‘To reach back decades in an attempt to smear Mr. Trump trivializes sexual assault, and it sets a new low for where the media is willing to go in its efforts to determine this election.'” (Source: CNN Wire, Oct. 12, 2016)

The Prospect of Discovery?

“According to CNN reporters Dylan Byers and Brian Stelter: “If the Trump campaign does proceed with lawsuits in this case, it would be a break from past practice, and it will give both the Times and the Post the opportunity to pursue discovery and request information on Trump’s entire sexual history, because Trump would have the burden of proving falsity and actual malice.”

Writing in the Washington Post, Callum Borchers noted: “The lawsuit Donald Trump is threatening against the New York Times over sexual assault allegations in an article published Wednesday night could be risky for the Republican presidential nominee. ‘It would be very appropriate and relevant for the reporters to question Trump on the truth of the allegation under oath, and a court would likely order depositions,’ said John L. Diamond, a media law expert at the University of California. ‘There is no Fifth Amendment protection for civil cases.'”

Demand Letter to the NYT

Demand for Retraction                                                                                                                                    October 12, 2016

Dear Mr. Baquet,

We represent Donald J. Trump. We write in response to the libelous article published October 12, 2016 by The New York Times entitled Two Women Say Donald Trump Touched Them Inappropriately.

Marc Kasowitz

Marc Kasowitz

Your article is reckless, defamatory and constitutes libel per se.  It is apparent from, among other things, the timing of the article, that it is nothing more than a politically-motivated effort to defeat Mr. Trump’s candidacy. That is why you apparently performed an entirely inadequate investigation to test the veracity of these false and malicious allegations, including why these two individuals waited, in one case, 11 years, and, in another case, more than three decades, before deciding to come forward with these false and defamatory statements. Clearly, The New York Times is willing to provide a platform to anyone wishing to smear Mr. Trump’s name and reputation prior to the election irrespective of whether the alleged statements have any basis in fact.

We hereby demand that you  immediately cease any further publication of this article, remove it from your website and issue a full and immediate retraction and apology. Failure to do so will leave my client with no option but to pursue all available actions and remedies.


Marc E. Kasowitz

Headline: “Trump’s many, many threats to sue the press since launching his campaign”

This from Trevor Timm writing in the Columbia Journalism Review (October 3, 2016):

“In the span of a long weekend in mid-September, Trump threatened to sue The New York Times, his staff had a Vice reporter arrested outside a campaign event, and he blamed the New York terrorist bombings on ‘freedom of the press.'”

“This weekend, Trump struck again. After the Times’ huge scoop detailing how he took an almost billion-dollar loss on his 1995 taxes, Trump’s lawyer threatened ‘prompt initiation of appropriate legal action’ against the Times once more. By my count, it is at least the 11th time Trump has threatened to sue a news organization or journalist during his campaign for president.”

“I had intended to quantify how many journalists or news commentators Trump has threatened to sue over his lifetime, but that quickly turned into a fool’s errand. A simple Google search of “Trump threatens to sue” will return an overwhelming number of stories. In the past decade alone, he’s sued a former Times journalist who wrote a book about him that he later admitted he didn’t even read; he’s threatened to sue former View host Rosie O’Donnell for allegations that have been shown over and over again during this campaign to be correct; he’s sued HBO’s Bill Maher over a joke bet that involved proving he was not, in fact, born an orangutan.”

“He threatened to sue a journalist at the Village Voice as far back as 1979, and he actually sued a newspaper as early as 1984: the Chicago Tribune, for calling building plans of his “aesthetically lousy.” My personal favorite was his threat to sue The Onion, the popular satirical news site. . . .”

Additional Sources

 Timothy L. O’Brien, Don’t fear Trump’s lawsuits. He’ll lose, Chicago Tribune, Oct. 13, 2016 (“Kasowitz is a familiar name to me. He was Trump’s lead attorney when Trump sued me a decade ago for libel when I was still a reporter and editor with the Times. . . . Trump lost his case, and he spent boatloads of money litigating it.”)

Nick Penzenstadler, Trump, Bill Maher and Miss Pennsylvania: The ‘I’ll sue you’ effect, USA Today (“Say something bad about Donald Trump and he will frequently threaten to go to court. “I’ll sue you” was a Trump mantra long before “Build a wall.” But an analysis of about 4,000 lawsuits filed by and against Trump and his companies shows that he rarely follows through with lawsuits over people’s words. He has won only one such case, and the ultimate disposition of that is in dispute.”

 FAN 125.1: 11 First Amendment experts comment on legality of NYT release of Trump’s tax returns (Oct. 2, 2016)

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