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Trump Campaign’s New York Times Lawsuit Might Be a Nightmare—for Trump

HE WANTS IT BOTH WAYS
The paper could forgo its right to seek the immediate dismissal of the Trump lawsuit as meritless, and instead proceed directly to the discovery stage.

David R. LurieFeb. 28, 2020 5:27 AM ET

Donald Trump claims that the Constitution prevents him from being sued in a New York state court for smearing a woman he allegedly sexually assaulted. But Trump’s campaign has brought a suit in the same court asserting that The New York Times should face defamation liability for publishing an op-ed about Trump’s alleged illicit relationship with Vladimir Putin. 

This is too cute by half, and could well lead to the president being ordered to sit in a witness chair to testify under oath about Russia’s involvement in his 2016 campaign. Just ask Summer Zervos, or Paula Jones.

So the Trump re-election campaign may have painted its man into a corner on Wednesday, when it filed a lawsuit against the Times in New York state court, asserting that a March 27, 2019 op-ed by the paper’s former executive editor, Max Frankel, defamed the campaign by falsely alleging that, during the 2016 election, the campaign and the Russians had an “overarching deal” to exchange illicit Russian assistance in electing Trump for a “new pro-Russian foreign policy” after Trump took office.

On its merits, Trump’s complaint is extremely weak. A defamation action requires proof that the challenged statement was false. But, because, the campaign (like Trump himself) is a “public figure,” the First Amendment also bars the suit unless the Trump campaign can establish that the newspaper acted with “actual malice”—meaning that the Times had actual knowledge, or reckless disregard, of the challenged statement’s falsity.

The Trump campaign asserts the newspaper knew, when it published Frankel’s piece, that Trump and his campaign did not have a corrupt relationship with the Russians. The assertion is absurd, given the numerous, accurate, reports from the Times and other outlets on a web of connections and communications between people affiliated with the Trump campaign and Russia’s government and its agents. The complaint also recites the oft-heard, but patently false, assertion that the Mueller Report cleared Trump of claims of an illicit relationship between his campaign and Russia. In fact, while Mueller concluded that his team did not obtain sufficient evidence of such misconduct to make out a criminal case (very possibly because of obstruction and witness-tampering by Roger Stone, who was avowedly seeking to protect Trump himself), his report recited a number of suspicious connections between the campaign and Russian agents that bolstered, rather than refuted, Frankel’s allegations. In any event, because the Mueller Report was made public after Frankel’s op-ed was published, it could not have been employed to establish the Times’ knowledge, even if it had actually refuted Frankel’s opinion piece.

The Trump campaign’s lawsuit is not only frivolous, it is also at odds with the legal position of Trump himself, who is currently asking New York’s highest court to rule that he cannot participate in the very same type of state court proceeding so long as he remains in office.

During the 2016 presidential campaign, after the Access Hollywood tape came out with Trump bragging about assaulting women, former Apprentice contestant Summer Zervos publicly recounted that Trump had lured her to a hotel room where he assaulted her and attempted to coerce her into having sex. Trump responded to Zervos’ allegations and those of a number of other women he had allegedly assaulted by calling them liars. After Trump was elected, Zervos sued him, asserting that Trump’s denial, and characterization of her as a liar, constituted a defamatory smear.

Zervos’ suit echoes another famous lawsuit, the federal court action brought by Paula Jones against then-President Bill Clinton, who alleged Clinton defamed her by denying that he had made a vulgar sexual advance upon Jones in a hotel room. The Supreme Court rejected Clinton’s argument that the case should be stayed while he was in office, thus clearing the way for Clinton to be required to testify. Clinton thereafter lied under oath about his relationship with Monica Lewinsky, an event that provided the rationale for the criminal investigation by Ken Starr that ultimately led to Clinton’s impeachment.

 Given that precedent, it is unsurprising that Trump, a person known to have a problematic relationship with the truth, has done his damnedest to avoid testifying in Zervos’ lawsuit against him. Like Clinton, Trump argues that he should be able to prevent an individual from suing him for conduct arising from his unofficial, pre-presidential conduct so long as he remains in office. Trump contends that Zervos’ case against him is decisively different from Jones’ action against Clinton, however, because Zervos – like the Trump campaign – sued in a state, rather than a federal, court. According to Trump, the Constitution’s Supremacy Clause, which mandates the priority of federal over state law, effectively prevents such suits. 

 The Supreme Court has stated that the Supremacy Clause prevents state courts from exercising “direct control” over a president.  In March 2019, a three-judge majority of a New York intermediate appellate court rejected Trump’s argument that this principle prevents Zervos’ suit from proceeding; but two judges dissented, reasoning that, because the state court would be called upon to supervise the president when he responded to “discovery demands [for documents], . . . sit[s] for a deposition, [or] appear[s] before it”, the proceedings would effectively place Trump under the court’s control.  By a January 2020 order of the appellate court, the issue has now been certified for review by New York’s highest court, the Court of Appeals, and Zervos’ suit will be held in abeyance in the interim.

But Trump’s argument in the Zervos case, that he cannot be required to provide discovery while he is president, is in direct conflict with his campaign’s attempt to sue Times for defamation while Trump remains in office. 

Since truth is a defense, if the Trump campaign’s case against Trump was to go forward to the discovery stage, the Times would inevitably seek to obtain evidence regarding whether Trump and his campaign did in fact enter into a quid pro quo arrangement with Putin. Furthermore, Trump himself would also certainly be a key witness, and would be called upon to provide testimony and documents.

 Furthermore, given the value and importance of obtaining live testimony on such matters from Trump, who refused to provide it even to Mueller, it is entirely possible that the Times might forgo its right to seek the immediate dismissal of the Trump campaign’s lawsuit as meritless, and instead proceed directly to the discovery stage. If the Times employs that strategy, it will be difficult for Trump to maintain that the Constitution prohibits him from being required to testify. After all, the campaign, a corporation Trump controls, chose to bring the case, necessarily recognizing that its principal would have to be made available to provide evidence.

Furthermore, the obvious contradiction between Trump’s argument in the Zervos case, that New York courts cannot require him to sit for a deposition, and his campaign’s choice to employ the same courts as a forum to pursue Trump’s vendetta against the press certainly does nothing to aid Trump’s argument before New York’s highest court for staying the defamation action pending against him. 

It is unlikely, however, that Trump even recognizes the contradiction, let alone cares about it. As he has made clear, Donald Trump thinks the law should work only one way: in his favor.

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