OK, this is going to be quick and dirty because I am a bit time-limited.
The Trump campaign (Trump for President) sued the New York Times today for defamation based upon this opinion piece written by Max Frankel in March 2019. It deals with his campaign’s conduct regarding the Russians.
Trump is going to lose. In order to prevail he’s going to have to show, for a start, false statements.
First off, the complaint doesn’t start well as it’s supposed to be written with actual facts. This one is chock full of political hyperbole. This is not the way New York lawyers write, which means this is not what the judges expect to see.
And most folks with functioning neurons — and I think most of our judges have them — know that when that kind of nonsense appears in a complaint it’s to mask the emptiness of the complaint.
So we see this nonsense about “not entirely surprising” and “blatant attack” and “extremely biased” that has nothing to do with whether a statement is true or false:
The actual statements claimed to be false are opinions based on the evidence as the writer sees them. They are, in fact, obviously opinions based on the very words that are used:
“Reveals itself” is opinion. So to is “obvious bargain,” “watered down” and “otherwise appeased.”
While this following allegation is a bit better, claiming an “overarching deal,” it too will fail as deals need not be explicit and may be implied:
Given Trump’s invitation to Russia to involve itself with our elections, and the numerous contacts his team had with Russia, this claim has nowhere to go. It’s a fair opinion to claim “they knew about the quid and held out prospect for the quo.”
It’s tempting to leap out and say, “discovery is gonna be a blast!” but it will never get there. This complaint is doomed to be dismissed for failing to state a claim upon which relief can be granted.
New York’s standards for defamation are very high, and are set forth in Steinhilber v. Alphonse. This is a good primer on the law for those who want to know how strongly the courts protect our rights to speak freely.
As I noted back in 2015 when Trump filed a frivolous defamation claim against Univision, expressions of opinion, as opposed to assertions of fact, are privileged. No matter how offensive, they cannot be the subject of an action for defamation. Non-actionable opinion includes “rhetorical hyperbole, vigorous epithets, and lusty and imaginative expression,” as well as “loose, figurative, hyperbolic language.”
The story will make some headlines and then vanish into the ethers.
Addendum: I think both Trump and his lawyer Charles Harder know this suit is dead in the water. Because if it was viable, Trump would be subject to a deposition. Trump. Under oath. About Russia. And there is zero chance of Trump allowing that to happen.
