If that sounds familiar, it should — Bill Cosby pursued the same strategy. And look how well that turned out.
Trump’s case would be similarly disastrous, and his lawyers surely know it. The threats of litigation are pure hot air.
First, Trump has no case against the Times – or against the Palm Beach Post, which he has also threatened. The absurd letter his lawyers sent the Times states that the “article is reckless, defamatory, and constitutes libel per se.” (Libel is, roughly, the written form of defamation; slander is the spoken form.)
The legal term for that claim is “bullshit.”
As a public figure, Trump would have to prove that the newspapers acted with “actual malice,” i.e., the deliberate intention of harming Trump’s reputation. While Trump makes this accusation all the time in the press, making it in court is a different story. Absent some kind of bizarre smoking gun – an email from a Times editor, for example, saying “we gotta get Trump” – it’s impossible that a court would believe that the newspaper is pursuing a vendetta against Trump, as opposed to reporting on a hot story about a presidential candidate.
Even if the accusers’ stories turn out to be false, the Times wouldn’t be guilty of defamation. Like all careful news outlets, the Times is careful to attribute the accusations to the women themselves: “Ms. Leeds said” “she recalled” “Ms. Crooks recalled.” This is standard journalistic practice, and of course the Times followed it to a T. The Times, itself, hasn’t said that the accusations are true. It has merely reported that the accusations are being made.
The only shred of a legal claim in the Trump lawyers’ letter is that the Times did not adequately “test the veracity of these false and malicious allegations, including why these two individuals waited” to make them – 11 years and 30 years, respectively. That’s a claim so false as to be delusional. The third paragraph of the Times piece clearly explains that Jessica Leeds, one of the accusers, was provoked by Trump’s claim, in the second presidential debate, that he had never actually groped anyone.
Nor is the Times likely to be intimidated by the prospect of a Trump lawsuit. They have their own lawyers, who surely reviewed the piece before it went out, and they know the law. Some have speculated that smaller news outlets may indeed be intimidated by such threats, but this type of exposure isn’t like the Hulk Hogan tape that sunk Gawker. Any properly-vetted, reasonably sourced accusations are safe; they are about a public figure and germane to a central issue in the presidential campaign.
Indeed, though Trump has alleged politics is behind the Times piece, surely his lawyers’ threatening letter is, itself, political theater. And now the Times responded in kind, making the politically incendiary claim that since Trump has already bragged about abusing women, his reputation can't be harmed by the story. This is not a good legal defense, which the Times lawyers know; it is basically saying "we dare you to sue us."
Trump could have a stronger case against the women themselves – but, like Cosby before him, Trump would get a lot more than he bargained for.
To prove defamation, the statement in question must be false, harmful, and public. These statements obviously fulfill the second and third requirements – but what about the first?
Let’s assume, for the sake of argument, that ultimately, the question of truth will come down to he said/she said. Doubtless, Trump’s lawyers will do their best to paint these accusers – and the many others who have already come forward – as opportunists, or sluts, or liars, or worse. They will argue that these incidents never happened, and that the women defamed Mr. Trump by saying that they did.
That will be a nasty process, to be sure, but the women won’t be on their own. Well-known attorney Gloria Allred, who has represented dozens of women in sexual harassment cases over the years, has already been in contact with several of the women involved. And while she did not comment on individual cases, Allred told The Daily Beast:
“Mr. Trump's threat to sue the New York Times is outrageous. What about freedom of the press? Did Mr. Trump forget about the First Amendment or does he only talk about the amendments that he likes? He is trying to shut down a free press in this country and every citizen should speak out and protest that.”
Meanwhile, if Trump sues, every single thing Trump has ever said about women, from the Access Hollywood video to the Howard Stern tapes, would be admissible as evidence. Just what we’ve seen so far is quite damning. If it’s a case of he said/she said – well, he boasted to Billy Bush that he kisses women non-consensually and “grabs them by the pussy” all the time.
Worse still for Trump, the accusers would, as part of the discovery process, likely be able to obtain tapes that we haven’t even seen yet – first and foremost, those rumored tapes from the Apprentice series that include Trump using racial slurs. All of these would enter the public record.
Oh, and there’s more. As with the Cosby case, every single woman that Trump has kissed since his clubbing days at Studio 54 would now be a potential character witness. These women may be barred from filing their own claims of sexual assault, either by statutes of limitations or by high evidentiary standards, but they’ll be quite free to testify to any encounters they’ve had with Trump.
In sum, while Trump could harass these women and cost them some money, everything he’s ever said about or done to women will come to light. And as we pointed out in the Cosby context, this sort of hubris has cost other men their freedom, including Oscar Wilde, who sued his (male) lover’s father for libel even though Wilde knew that the events in question had taken place.
Even if Trump has a different memory of his contested events, it would be very, very stupid for him to follow a similar path. Either his lawyer is bluffing, or Trump is out of his mind.