Being President Trump's lawyer means telling the courts that your client's comments shouldn't be taken literally — a lot. And it just happened again, this time when it comes to the women who accused Trump of unwanted sexual advances.
The Post's Rosalind S. Helderman writes about a strategy from Trump's personal lawyer, Marc Kasowitz. It comes in a lawsuit brought by former “Apprentice” contestant Summer Zervos, who is accusing Trump of defamation for saying she had made up stories and lied about Trump. Kasowitz is asking that the suit be dismissed. (Emphasis added):
Kasowitz also argued that Zervos’s complaint should be dismissed because her original allegations against Trump were not true and, in addition, because Trump’s campaign-trail statements were protected by the First Amendment. A certain level of hyperbole is to be expected in the heat of a political campaign, he wrote, and such statements are legally protected speech.
During the campaign, Trump said the women who accused against him of inappropriately touching them were putting forward “made-up stories and lies” and “telling totally false stories.” Kasowitz argued those statements and others could not be considered defamatory but instead were “nothing more than heated campaign rhetoric designed to persuade the public audience that Mr. Trump should be elected president irrespective of what the media and his opponents had claimed over his 18-month campaign.”
Here is the court filing, for those interested.
To be clear, Kasowitz isn't saying Trump was inaccurate when he said the women made up these stories; in fact, he's reiterating that their stories are false. But he's making a legal argument that Trump's comments should be held to a different standard because he was a candidate for office. Basically, he's trying to move the bar for defamation higher, even if Trump's comments were inaccurate. Which, again, he's saying they're not.
As a legal strategy, that might be a smart move. (I'm not a lawyer.) And Kasowitz cites precedent for campaign speech being held to a looser standard. But as a public-relations strategy, it is far less ideal. Kasowitz is at once backing up Trump's contentions that the women made up the stories and guarding against the possibility that they could be judged as over-the-top. In effect, he wants Trump's words to be taken seriously, not completely literally.
We've been here plenty of times before. Trump's literal comments about his proposed ban on all Muslim immigrants have repeatedly been cited by the courts in temporarily halting his travel ban executive orders. And a federal judge in Kentucky allowed a lawsuit to proceed against Trump for allegedly inciting violence at a campaign rally by citing Trump's admonitions that the crowd should remove a protester. “It is plausible that Trump’s direction to ‘get 'em out of here’ advocated the use of force,” U.S. District Judge David J. Hale wrote at the time. “It was an order, an instruction, a command.”
Trump's comments about his female accusers, it bears noting, often went far beyond just saying they made up the stories. He called them “horrible, horrible liars” and called one of them a “crazy woman.” He repeatedly seemed to suggest they weren't attractive enough for him to have done the things they accused him of. “You take a look. Look at her. Look at her words. You tell me what you think. I don’t think so,” he said. He urged supporters to look up another woman's Facebook page and said she “would not be my first choice.” He also accused them of seeking attention. “Some are doing it for probably a little fame,” he said. “They get some free fame.” So Trump has more to fend off than merely having said these women's stories were untrue or that they are liars.
But it's just remarkable to see Trump's lawyers have to contend, over and over again, that his words should not be taken at face value. For a president who has made more than 700 inaccurate claims in less than six months in office, you have to wonder whether he might be better suited toning down the hyperbole — if for no other reason than for his lawyers' sake.