One of those outlets just needled Trump over his legal opportunism.
The Times filed a motion Thursday to dismiss a complaint the Trump campaign filed in February over an opinion piece the newspaper published in 2019 by former executive editor Max Frankel. Coming just after Attorney General William P. Barr’s faulty summary of the Mueller report, Frankel argued that while there may not have been criminal cooperation/collusion/conspiracy between the Trump campaign and the Russians, there was a more ambient “overarching deal."
The complaint, filed in New York State Supreme Court and drafted by attorney Charles Harder, rests on a disingenuous reading of the Frankel column as a literal assertion of conspiracy that was refuted by the Mueller report. In fact, the column made no such case, as is clear from the headline and the very first paragraph. The lawsuit is a time-wasting joke, as the Erik Wemple Blog outlined at the time.
There’s more to the story, though. In its motion to dismiss, the Times argues that Frankel’s article is straight-up opinion and not a statement of fact. That distinction is central to the paper’s defense, since “[o]nly false statements can be grounds for a libel action,” as the motion states. To boost its argument in this regard, the newspaper made reference to a case the New York State Supreme Court decided a few years ago: Cheri Jacobus v. Donald J. Trump, Corey Lewandowski, and Donald J. Trump for President, Inc.
The case stemmed from a number of dismissive and nasty remarks that Trump and Lewandowski, a one-time manager of Trump’s 2016 campaign, made about Cheri Jacobus, a well-known Republican strategist and frequent guest on cable news programs. Asked about various Trump outrages, Jacobus showed the temerity to criticize him. In a January 2016 appearance on CNN, for instance, Jacobus rapped Trump for being a “bad debater” who “comes off like a third-grader faking his way through an oral report on current affairs.” Lewandowski subsequently told MSNBC that Jacobus “is the same person … who came to the office on multiple occasions trying to get a job from the Trump campaign, and when she wasn’t hired clearly she went off and was upset by that.”
After another critical Jacobus appearance on CNN, Trump tweeted: “Great job on @donlemon tonight @kayleighmcenany @cherijacobus begged us for a job. We said no and she went hostile. A real dummy! @CNN.”
Jacobus sued for defamation, insisting that Trump and Lewandowski had uttered false claims that damaged her professional prospects. She had never “begged” the Trump campaign for a job; au contraire, she showed, the Trump campaign approached her about working with them. So how did Trump & Co. resolve to get out of this legal bind? By arguing that the statements in question were hyperbolic rhetoric, too vague to be defamatory, to borrow the abridgment of Judge Barbara Jaffe.
And Jaffe sided with Trump. “I find that it is fairly concluded that a reasonable reader would recognize defendants’ statements as opinion, even if some of the statements, viewed in isolation, could be found to convey facts,” the judge wrote in dismissing Jacobus’s complaint. The ruling further reasoned that loose chatter on television talk shows doesn’t lend itself to serious consideration. This was her take on Twitter: “Indeed, to some, truth itself has been lost in the cacophony of online and Twitter verbiage to such a degree that it seems to roll off the national consciousness like water off a duck’s back.”
The Times’ motion last week against the Trump campaign cites Jaffe’s ruling in the Jacobus case: “This Court got it exactly right three years ago in dismissing a libel complaint brought against Donald Trump — and [the Trump campaign]: ‘[T]he reviewing court should not pick apart the challenged communication to isolate and identify factual assertions.’ ”
The point here is strong: If the law is capacious enough to protect the rantings of Trump and Lewandowski on cable news and Twitter, it surely has room for a carefully phrased op-ed by Frankel. The court will have an easy time with this one — so easy that the Times argues that it should be awarded legal fees in the case:
Meritless, unethical, frivolous, and vexatious — precisely the right description of a lawsuit brought for political purposes by a political campaign that is aiming to silence those who would dare to use their First Amendment rights to criticize a sitting President, that uses as a stalking-horse plaintiff a corporate entity that has no legal claim of its own to bring, that makes laughable assertions of damages, and that builds its case on a knowing fabrication about what the Mueller investigation found. The Court need not wonder whether sanctions are necessary to deter this plaintiff from engaging in further abuse of the judicial system. Campaign Corp. has already sued two other independent news organizations with similarly frivolous suits.
Correct. When Trump is speaking, the First Amendment is a glorious constitutional protection; when he’s being spoken about, the First Amendment is a negligible afterthought.