It doesn’t take much for a journalist to trigger a lawsuit from Donald J. Trump for President, Inc.
Max Frankel, a former New York Times executive editor, did so when he wrote in an op-ed that “the Trump campaign and Vladimir Putin’s oligarchy … had an overarching deal.” The Washington Post’s Greg Sargent set off a suit when he stated that Special Counsel Robert Mueller “concluded that Trump and/or his campaign eagerly encouraged, tried to conspire with” Russia. Sargent’s colleague, Paul Waldman, found his name in the crosshairs after posing a rhetorical question: “Who knows what sort of aid Russia and North Korea will give to the Trump campaign?” And Larry Noble, a CNN contributor, was targeted over one sentence in the 36th paragraph of a 37-paragraph column.
The Trump campaign filed these suits—against the news organizations, not the writers—more than a year ago. The CNN suit was dismissed in November, while the other two are still winding their way through the courts.
On their face, the suits are a long shot. Trump is among the most public figures on earth, so the campaign needs to clear the high hurdle of proving that these journalists harbored actual malice—that is, operating “with knowledge that it was false or with reckless disregard of whether it was false or not.” Trump, who threatens more litigation than he files, has a long and unhappy track record when it comes to suing the media, most notably when he took on Tim O’Brien, a journalist who had disputed his self-evaluation of his net worth. Trump was caught lying 30 times in a deposition. His suit was later dismissed.
What Trump wants is to change the rules of the game. In 2016, while running for the GOP nomination, he vowed that as president, he would try to “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.” He either didn’t know or didn’t care that libel and defamation laws are largely defined by the states.
But you can’t write off these suits completely. In dismissing the CNN case, a federal judge sided with the Trump campaign on some key points. Moreover, these suits carry high costs: In a recent hearing, the Post was represented by four lawyers from the elite Williams & Connolly firm. There’s a more subtle cost as well—the fear such suits create in the minds of writers and editors. A journalist can win a lawsuit and still be haunted for years by the dread of another one.
The litigation hasn’t disappeared just because Trump is no longer in the White House. Lawyers for the Times and the Post are still waiting for judges to rule on their motions to dismiss, which were filed last July. So what’s going on? Here’s an explainer, based on dozens of motions and filings, and interviews with columnists and lawyers versed in libel and defamation law:
Does the Trump Campaign have a case?
The Trump campaign says that most of these pieces were defamatory because they deceived readers about Mueller’s investigation, which found that while Trump’s and Russia’s interests aligned neatly before the 2016 election, there wasn’t enough evidence to prove a criminal conspiracy.
But there was a lot of confusion around Mueller’s report, partly because of a misleading early account by then-Attorney General William Barr, and partly because the report is 488 pages long. Many people weren’t interested in reading that much or divining the deeper meaning of the special counsel’s nuanced language.
Trump’s lawyers argue that the columns weren’t just wrong, but that they caused grievous harm to the campaign. The Times column, they claimed, forced “the Campaign to expend funds on corrective advertisements and to otherwise publicize the fact that the Campaign did not collude … or have a quid pro quo” with Russia. How much did the campaign spend? The amount will “be proven at trial.” The suit against CNN alleged that the damage to Trump’s campaign was “in the millions of dollars.” In the case of the Post, the campaign’s lawyers say they want not just financial compensation, but also to “publicly establish the truth, properly inform The Post’s readers (and the rest of the world) of the true facts, and seek appropriate remedies.”
Key to these suits is proving actual malice, and Trump’s lawyers have strained to make their case. In the CNN suit, they based their argument, in part, on a tweet in which Noble said that the president “cheats and lies, and when caught, lies again.” But Noble posted that tweet—which has gotten two likes and no retweets—eight months after his column ran. The campaign also rehashed some comments by mid- and low-level CNN workers alleging network bias against Trump. These were unearthed by the far-right activist group, Project Veritas, and none of those remarks related directly to Noble or his column.
One of the attorneys representing the campaign is Charles Harder, who helped bring down Gawker five years ago. Harder has put up some wins for Trump in recent years: He forced MSNBC host Lawrence O’Donnell to retract and apologize for a claim about Trump and Deutsche Bank, and he persuaded a federal judge to order Stormy Daniels to pay nearly $300,000 in legal fees over her defamation suit against Trump. And the Trump campaign has been a loyal client, paying Harder’s firm more than $3 million in 2019 and 2020, though FEC records don’t detail how much of that is to fund these lawsuits.
CNN managed to get its case dismissed because Trump’s side couldn’t show actual malice. But there are some warning signs for the media in the opinion by District Judge Michael L. Brown, a Trump appointee.
The suit rested on a single line in the penultimate paragraph of Noble’s column: “The Trump campaign assessed the potential risks and benefits of again seeking Russia’s help in 2020 and has decided to leave that option on the table.” CNN’s lawyers argued this was Noble’s opinion, and couldn’t be proven to be false. Not so, said the judge, who found that the statement had “a precise meaning” that “is subject to verification.” He then helpfully provided columnists a road map for the future: The column “does not say Plaintiff ‘may have’ conducted such an assessment or that it ‘might have’ made a decision. It does not say that Mr. Noble ‘fears’ Plaintiff did either of these things or that statements by people connected to the campaign ‘suggest’ it did so. The Statement has no such qualifying or softening language.”
Still, those phrases may seem extraneous when writing an op-ed under an “Opinion” banner. As Kevin Baine, a lawyer representing the Post, told a federal judge last December, “A political commentator does not have to punctuate his sentences with ‘in my opinion,’ ‘as I see it,’ ‘it is my judgment that.’ Political bloggers write sentences that contain rhetorical language like this all the time. … Obviously it’s his opinion. That’s what he told you at the top of the column.”
What’s with the timing of the suits?
This is curious. The suits were filed in February and March of 2020—more than eight months after these columns were published. The campaign acknowledges in its suit that it didn’t ask CNN for a retraction until Feb. 25, 2020, even though the piece ran in June 2019. “As a general matter,” says David McCraw, deputy general counsel for the New York Times, “people who think their reputations were hurt want to set the record straight very quickly.”
Given that each suit was filed so long after the offending article, and that each finds a single sentence that irks the campaign, it’s seems possible that, as one attorney said, “some decision was made, ‘Hey, let’s file some libel suits.’” The campaign filed these suits shortly after Trump’s acquittal in his first impeachment trial, and right around Super Tuesday, when Joe Biden emerged as the front-runner for the Democratic nomination.
The more traditional route for such suits comes from former Alaska Gov. Sarah Palin. In 2017, the New York Times ran a house editorial linking an assassination attempt on GOP congressmen in Alexandria, Virginia, to a crosshairs map in a brochure put out by Palin’s political action committee. That linkage was false, and even though the Times quickly corrected the piece, Palin sued anyway—less than two weeks after the column ran.
Why is the Trump campaign suing over opinion pieces rather than news stories?
McCraw remembers that when he first got word of this lawsuit, “I assumed it was about some of the many, many great stories and investigations” that the Times has run. “Then I find out it was about a column by Max Frankel…. an eight-paragraph column.”
But editorials and op-eds can present tasty fodder for plaintiffs’ lawyers, in part because those writers sometimes “have been told they’re going to be immune because they’re identified as opinion,” says George Freeman, former in-house newsroom counsel for the Times who is now executive director of the Media Law Resource Center. “That’s not an absolute immunity.”
If anything, says Freeman, opinion pieces can be “more vulnerable because of the way they’re written.” They’re often held to a set length, with insufficient space to provide nuance or balance. The writers may compress facts because they’re making a point, and they don’t often seek comment from people they’re targeting. Noble, a former general counsel for the Federal Election Commission, says the Trump side was “going after people who write opinion because they tend to be more aggressive” in their prose.
Tony Norman, a Pittsburgh Post-Gazette writer who is president of the National Society of Newspaper Columnists, believes that opinion writers have become “easy targets. The number-one complaint about me is when people say, ‘You’re not very objective.’ Well, that’s not my job. I’m not going to give equal weight to QAnon.”
That said, the writers of these columns generally offered some countervailing evidence. The Post’s Sargent, for example, noted that “Mueller did not find sufficient evidence of a criminal conspiracy.” Noble’s column mentioned that the investigation “did not produce evidence sufficient to prove they [Trump’s side] cooperated in a criminal conspiracy.” (Sargent and Waldman wouldn’t discuss their columns, citing the ongoing litigation.)
Why is the campaign, and not Trump, suing the media?
Harder declined to comment for this article, so the reasons for this aren’t entirely clear. But media lawyers have some theories.
First, Trump and the Republican National Committee raised nearly $2 billion for the 2020 election. So the campaign had plenty of cash to pay attorneys’ fees.
There are legal reasons as well. When he was in the White House, Trump claimed that he shouldn’t be burdened defending himself in civil suits, either because he didn’t have time or because he enjoyed immunity as president. That argument would be diminished if he were personally suing news organizations, even though he—and not the campaign—appears more obviously the injured party.
And, in a defamation case, the character of the plaintiff is key. It’s much harder to dent the reputation of a criminal or a liar than of an upstanding, impeccably honest citizen. So if Trump did file the suits, he’d have to deal with depositions by lawyers who could make him answer all sorts of questions—not just about Russia, but also about other matters that pertain to his character. It’s unlikely that Trump would subject himself to a grilling by attorneys who are on excellent speaking terms with Post and Times reporters who have investigated accusations of dishonesty, adultery, and questionable business practices.
So if these suits are dismissed, life goes back to normal?
Norman, the head of the columnists’ association, says that “among opinion writers, there’s already a wariness that wasn’t there a few years ago”—especially when writing about “contentious issues or personalities.” He sees the impact in his own work. Take Sarah Palin, whose suit against the Times is scheduled for trial this June: “I don’t know anyone who’d write about Palin now,” says Norman, “even if they’re totally in the right. I don’t even mention her name in my columns if I can help it.”
There are ways opinion writers can reduce the odds of getting sued. As Freeman notes, “You get more protection if you give readers underlying facts.” Adds McCraw: “The playbook is that you show the facts you work from. If you’re going to state your opinion in an artful way, you talk about what it is that led you to that conclusion.”
But even that strategy can fail when the aggrieved party is Donald Trump.
Noble, the CNN contributor, has come to see the suits as a tactic in a “war against the press— one that I got caught up in.” McCraw puts it this way: “It’s not hard to speculate it was designed to make us more cautious in how we were going to cover the campaign.”
And that’s the key. These lawsuits can drag on while motions get heard and decided; Max Frankel, who served as the Times’ executive editor for nearly eight years, told me that the suit over his column “should have been an open-and-shut case, but it has sat on a judge’s docket … and we are noodling to figure out what is delaying the case.”
The suits can also instill a lot of second-guessing.
Asked if he wishes he’d rephrased the line that triggered the lawsuit, Noble says this: “When you start thinking that way, ‘How would I reword it?,’ then you start worrying if you’re going to start curbing everything you want to say.” Still, the lawsuit sticks “in the back of your mind. That’s the purpose.”
No one knows this better than Ted Diadiun, a longtime Ohio journalist. In 1975, Diadiun was a sports columnist at a newspaper near Cleveland when he wrote about a high-school wrestling coach, Michael Milkovich, accused of instigating a melee at a match and being dishonest in subsequent testimony about the incident. Diadiun recalls he was “in high dudgeon, with a sense of outrage” when he included this line: “Anyone who attended the meet… knows in his heart that Milkovich … lied at the hearing after having given his solemn oath to tell the truth.”
The match is long forgotten, but any good media lawyer knows the name of that case. Milkovich vs. Lorain Journal bounced around for 15 years before it wound up before the U.S. Supreme Court.
The Court ruled 7-2 in favor of the coach, stunning journalists and media lawyers. Chief Justice William Rehnquist determined that Milkovich had a right to pursue his suit, adding, “we are not persuaded that … an additional separate constitutional privilege for ‘opinion’ is required to ensure the freedom of expression guaranteed by the First Amendment.” Even the dissent, by Justice William Brennan, wasn’t something you’d put in a Pulitzer nomination: “Diadiun not only reveals the facts upon which he is relying, but he makes it clear at which point he runs out of facts and is simply guessing.”
It was eventually settled, Diadiun recalls, likely for a fraction of what both sides had spent on legal fees. And the case has been largely superseded as courts and legislatures have provided more protection. Diadiun did fine as well—he moved up to the Cleveland Plain Dealer, where he’s still writing a column.
But the case took a toll.
“There are about five words there I could’ve changed, and it would have been bulletproof,” Diadiun recalls now, more than 45 years after he wrote the piece. “I spent 15 years defending myself for calling that guy a liar. I had many a sleepless night over this thing.”
TOP IMAGE: Donald Trump speaks to supporters at a rally on October 26, 2016 in Charlotte, North Carolina. (Photo by Brian Blanco/Getty Images)