Bruce W. Sanford is a partner in the Washington office of BakerHostetler LLP.
It is an axiom of bar rooms and locker rooms that anyone can sue over anything at any time. Actually, that’s wrong. Courts have rules to punish people — and their lawyers — who file worthless lawsuits, especially when they are instigated for ulterior purposes, such as trying to force critics to shut up.
So, what will happen if Donald Trump follows through on his Gettysburg promise to file libel lawsuits against the 11 women who have come forth to accuse him of non-consensual sexual touching, mostly unwanted kisses and groping?
What’s a guy to do, after all, when he believes these women are lashing out for reasons of profit or politics? How can he protect his reputation — even if the women’s statements only suggest that he actually did what he said he did when bragging on tape to Billy Bush?
If Trump asked my advice, I would explain that I customarily represent libel defendants — in other words, the news media, journalists and other content producers when they are sued for libel. But that professional experience, I would tell him, teaches that libel plaintiffs like him, who are public figures, have a very tough casino to build. To win, he would have to prove that the person who libeled him either knew that what she was saying was false or entertained serious doubts about the truth of her statements but went ahead and said them anyway. Not so easy when the crux of the matter is whether a woman felt a sexual advance was unwanted and inappropriate.
Does that mean the law is rigged against Trump? Well, yes. Deliberately so. Fifty years of Supreme Court decisions, endorsed by both liberal justices (Brennan) and conservatives (Rehnquist and Scalia), have created a well-settled body of American libel law that gives the media and all of us the “breathing space” to make mistakes when reporting on or discussing matters of public concern. Errors, misperceptions or sloppiness in making a statement cannot be the basis for lawsuits by public people. There must be proof of something more than mere careless inaccuracy; instead, the law requires evidence of a calculated falsehood or a “purposeful avoidance of the truth.” Many public officials undoubtedly share Trump’s disdain for this body of law, especially when they feel skewered by unfair reporting. But five decades of Supreme Court justices have held fast to the brave idea that we must have “ uninhibited, robust” speech on public affairs and tolerate some false speech in the pursuit of truth.
Trump might imagine that he could prove the women made calculated falsehoods by ferreting out evidence that they were induced by Clinton supporters to lie. But my experience in libel litigation suggests that locating proof of such rank speculation in nearly a dozen different cases is far-fetched at best, delusional at worst.
And, then, there are the risks any plaintiff puts on the line during libel litigation: his reputation. For a man who has gleefully discussed his sex life with Howard Stern and promoted himself as a latter-day Donald Juan, civil discovery, under oath, could be painful and ugly. All the gritty details of the alleged encounters with his 11 accusers would be sifted through endlessly. His emails, conversations, interviews through the years about women and relationships would be examined with the ardor previously reserved for the State Department emails of another candidate.
If Trump transforms his threats into actual lawsuits, he exposes both himself and his lawyers to the possibility that a court would not just hand him a humiliating dismissal but also make him pay the costs and attorneys’ fees of the women he sued. That result would be especially probable in any of the 28 states that have enacted so-called anti-SLAPP statutes. These laws are specifically designed to give courts the power to dismiss cases, and award fees, when they conclude that libel cases have been brought, usually by the rich and powerful, to silence critics.
Trump may never follow through. After all, his threats serve another purpose: to intimidate current and potential accusers. But as a lawyer who practices in this field, my advice would be to leave the women alone and stop groping for libel claims that don’t exist.
Read more on this topic: