Now Trump has a new would-be target. Or rather an old would-be target that has given him a new reason to rattle the prospect, if not the reality, of a lawsuit.
The New York Times on Tuesday published a sweeping investigation that documented decades of elaborate, and possibly fraudulent, maneuvering by Trump and his family to avoid paying taxes on hundreds of millions of dollars of their wealth. If anything, the article punctures a common myth Trump has promoted — that he is a self-made billionaire who started off with “a small loan” from his father, Fred C. Trump, a New York real estate developer. The story’s headline lays out the essence of the Times’s 18 months of digging: “Trump Engaged in Suspect Tax Schemes as He Reaped Riches From His Father.”
The story, like many others, drew a Trumpian response. His attorney, Charles Harder, issued a statement to the paper warning that Trump might sue.
“The . . . allegations of fraud and tax evasion are 100 percent false, and highly defamatory,” wrote Harder, a feared libel lawyer who represented Hulk Hogan in winning a $140 million judgment against the gossip site Gawker in 2016. He added, “Should the Times state or imply that President Trump participated in fraud, tax evasion or any other crime, it will be exposing itself to substantial liability and damages for defamation.”
Though it probably won’t, primarily for legal reasons.
Not only would Trump be unlikely to win such a claim, according to legal experts, he would be required as part of the discovery process to provide private financial documents that he has long resisted making public.
Nevertheless, the Times is among the many organizations and individuals that Trump has suggested he’d take legal action against. During the 2016 presidential campaign, he issued a legal fatwa against the Times for an article that reported two women’s allegations of unwanted touching who had met Trump years earlier.
The threat elicited a sharp-edged response from the newspaper’s lawyer, David E. McCraw: “If Mr. Trump . . . 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.”
Trump didn’t sue.
The same thing happened (or actually didn’t happen) on at least a dozen other occasions in which Trump made threats.
Trump made noises about suing MSNBC host Lawrence O’Donnell in 2011 after O’Donnell questioned Trump’s claims of vast wealth; no lawsuit was filed.
Trump vowed action during the campaign against a dozen women who had accused him of sexual assault. “The events never happened,” he said in a speech. “Never. All of these liars will be sued after the election is over.”
They haven’t been.
More empty threats have been leveled against — among others — The Post (for reporting on the failure of one of his casinos in Atlantic City); publisher Simon and Schuster (over Michael Wolff’s book, “Fire and Fury”); Bannon, the former White House adviser (for talking to Wolff); the Associated Press (for an October 2015 article reporting that a condo-management team appointed by the Trump family had cheated residents); and Tony Schwartz, co-author of the Trump book “Art of the Deal” (for comments about Trump that Schwartz made to the New Yorker).
As a legal matter, Trump faces a very high bar in winning a defamation lawsuit, and he appears to know it. Public figures such as Trump not only must show that the statements at issue are false but that a publication knew they were false and published them anyway. Trump has called this “reckless disregard” standard “a sham and a disgrace” and has repeatedly said he wants to “open up” libel laws so that he could more easily win a lawsuit. (He has never won any such case in court.)
Even if he stands little chance in court and has no intention of proving a story is wrong, Trump’s lawsuit threats serve another purpose, said RonNell Andersen Jones, a law professor at the University of Utah.
“Neither the court nor the Times is the intended audience of these sorts of statements,” she said in an email on Wednesday. “The president’s political base — ordinary Americans who surely cannot be expected to know the ins and outs of constitutional standards for defamation plaintiffs — will hear the threat of lawsuit and register only that the news organization has so crossed the line that the president is going to sue it. This serves to further delegitimize the press and construct it as an enemy that is not to be trusted.”
Jones said this “othering” of the press casts Trump as the source of truth and news organizations as sources of falsehood.
Trump actually has sued for libel on occasion, although typically without much to show for it.
He filed against author Tim O’Brien, a former New York Times journalist, in 2006 for O’Brien’s assertion in a book that Trump was worth far less than he had publicly claimed. Trump pursued the claim for five years, spent about $1 million in legal fees — and lost in court twice.
Trump also sued comic Bill Maher in 2013 for joking — amid Trump’s “birtherism” phase — that he would donate $5 million to a charity if Trump could provide documentary evidence that he wasn’t “the spawn of his mother having sex with an orangutan.” The comment followed Trump’s offer to give $5 million to charity if President Barack Obama publicly released his college transcripts and passport records to prove that he was an American citizen. Trump withdrew the suit a few weeks later, vowing to refile it. He didn’t.
On the other hand, Melania Trump sued the Daily Mail and a Maryland blogger last year after both falsely suggested that she had worked as an escort before meeting Trump. The first lady agreed to a $2.9 million settlement with the Daily Mail and an undisclosed monetary settlement with the blogger, Webster Tarpley.
Harder, who handled those lawsuits and is also representing the president, declined to comment on the Times story on Wednesday, beyond the statement included in the story.
A Times spokesman, Eileen Murphy, stuck to a statement calling the newspaper’s story “a powerful piece of investigative journalism” that is “accurate and fair and we stand behind it.” She added, “we’re not going to speculate on what may or may not happen” as far as litigation.