Donald Trump’s Excellent New Hobby of Suing Major News Sources

March 9th 2020

Donald Trump - Caricature (DonkeyHotey)

By Steven Day

That Donald Trump’s judgement is often staggeringly misguided is hardly a secret. But this newest bit of insanity — filing defamation lawsuits against the New York Times, the Washington Post  and now CNN — takes boneheadedness to an epic new level. All three cases grow out of OpEd pieces discussing Trump’s, basically admitted, embrace of Russian interference in the 2016 election. His motivation in bringing the lawsuits is obvious. With a worldview based upon power and dominance — authoritarianism one might say — he sees this as a chance to intimidate the non-Fox News media. To bring them to heel. But there is also, of course, a more primitive motive at play — payback: one more stop by the revenge train.

Perhaps he’s distracted by blood lust, but in doing this he’s forgotten one of the most fundamental rules of grifter self-preservation. When you’ve successfully kept your wrongful actions hidden in the dark, don’t turn on a flashlight.

And there’s no flashlight brighter than a defamation lawsuit.

As most people know, truth is an absolute defense in defamation cases. Now, as I suspect is also true of you, I have my own strong suspicions as to the truthfulness of the OpEds’ assertions regarding Trump’s wrongdoing. But for purposes of this discussion, it doesn’t really matter. Either way, the truth, or accuracy, of the statements in the writings is a central issue in the case.

Welcome to the wonderful world of pretrial discovery.

Under the Federal Rules of Civil Procedure, parties have a right to conduct extensive, and, yes, even at times intrusive, pretrial discovery in civil cases. This is especially true where, as here, the information at issue is central to the case. It was, after all, pretrial discovery in the Paula Jones lawsuit that eventually led to Bill Clinton’s impeachment. And Clinton, as the defendant in the lawsuit, was an involuntary participant in the process. Trump, on the other hand, is the person who voluntarily instituted the process, and in doing so delivered himself to the jurisdiction of the court.

Yes, I know, technically the suits are being filed by Trump’s campaign (which almost certainly doesn’t have standing to bring them). And courts will usually accept the legal fiction of a corporate entity being a “person” separate from its principals. But when it comes to pretrial discovery, most judges will have little difficulty in seeing beyond the pretense. Everyone knows whose lawsuit this actually is. Hell, Trump has more or less admitted as much.

And the bottom line is this: you can’t file a lawsuit seeking money damages against someone else and then try to hide documents and testimony central to the case. True, Trump and his lawyers have had some success in stonewalling discovery in lawsuits brought against him. They’ll find this a lot tougher, however, in a case brought on his behalf against others. Bottom line: If you want to file a defamation lawsuit, you better be prepared to have the cover ripped off of any cover ups hiding in your closet.

Trump doesn’t appear to see this danger. Perhaps he’s convinced himself that Robert Mueller actually did clear him of collusion with Russia. That’s nonsense, of course. At most, Mueller’s team concluded they couldn’t prove collusion, while at the same time noting Trump had repeatedly obstructed their ability to find that proof. They reached no affirmative finding that collusion did not occur.

It turns out a president can stonewall a federal investigation. Same apparently goes for congressional investigations. But when you yourself put the subject matter into issue by filing a lawsuit, the wall of secrecy comes tumbling down.

Given these lawsuits appear to be legal nonsense, the media defendants, no doubt represented by superb lawyers, will be tempted to file immediate motions to dismiss.

I hope they don’t. This isn’t legal advice, but simply an expression of hope, for the sake of the republic. Nothing, other than the requirement of a quick Rule 26 (f) conference, stands between them and the start of pretrial discovery. They could start with a broad set of requests for production of relevant documents. Under the law, the plaintiff will be required to produce any arguably relevant documents within plaintiff’s control. Sure, there will be the inevitable, ridiculously broad, claims of privilege, but in a case of this nature, judges are likely to reject them out of hand.

There’s also no requirement a defendant wait for months or even years, fighting about documents, before starting other discovery. While lawyers generally want to have key documents in hand before taking depositions, there’s always the option of not waiting for all document fights to be resolved before beginning depositions of relevant witnesses, including, eventually, the most relevant of them all — one Donald Trump.

When people try to depose presidents in lawsuits brought against either the government or the president personally, courts tend to be very protective of the president, often denying the depositions. But a lawsuit he himself has brought (or at least which has been brought for his benefit), presents a completely different situation, especially where, as here, he is the sole available source of much information relevant to the case.

Now, somewhere along the line, Trump will probably figure out what he’s gotten himself into and move to dismiss the cases. A plaintiff generally has this right. But, even then, media defendants will have at least a colorable basis, if they choose to pursue it, to push forward with his deposition, as relevant to whether Trump or his campaign should be required to pay the defendant’s attorney fees and litigation expenses based upon filing a frivolous lawsuit.

I hear Trump is planing to file even more lawsuits against media sources. To which there can be only one response:

Bring it on.

Steven Day is an attorney specializing in civil litigation. He may be followed on Twitter at @scdaylaw.