Politics & Policy

If Trump Has Been Defamed, He Should Sue

(Reuters photo: Jonathan Ernst)
Why not take action against Michael Wolff and his publisher?

Michael Wolff has published a sensational new book about the Trump administration. In it, he quotes Steve Bannon, formerly the chief executive of the Trump campaign and chairman of Trump propaganda outlet Breitbart, characterizing meetings between Donald Trump Jr. and Russian operatives as “unpatriotic” and “treasonous.” Bannon also is quoted as saying that there is “zero” chance that Donald Trump himself was unaware of the meetings.

There are many amusing anecdotes in the book that tend to confirm the worst suspicions of the administration’s critics. Wolff writes of Kellyanne Conway’s maneuvering on Election Day, expecting a resounding loss but hoping to parlay her work into a lucrative Fox News contract. There are cabinet secretaries such as Rex Tillerson and quondam allies such as Rupert Murdoch who dismiss the president as an imbecile surrounded by dilettantes, opportunists, and con artists. Trump’s children maneuver fecklessly, and he himself retreats into a cocoon of fast food and cable news. It is the sort of thing that those who take an uncharitable view of the president — and no one takes a more uncharitable view than I do — would have expected.

The president, through his lawyers, insists that these things are not true, and that they constitute libel. Wolff has been criticized as an overly free practitioner of what used to be known as the New Journalism, liberally applying literary techniques to recreate (some of his critics would say to simply create) scenes and interactions to which he was not directly privy. (Another lupine journalist, the unparalleled Tom Wolfe, is most closely associated with that style of writing.) But Wolff did enjoy remarkable access to the Trump team for a year, and he says that he has recordings to back up his version of events.

If the Trump administration is telling the truth, and Wolff is telling tales (selling wolf tickets, as it were), then Trump should sue him and sue his publishers, Henry Holt & Company, a division of Macmillan and part of the giant Holtzbrinck Publishing Group.

And by that I mean: Trump should actually sue Wolff and Henry Holt, rather than simply send a cease-and-desist letter, as he has done.

Trump likes to threaten defamation lawsuits. He routinely threatens to sue critics ranging from the New York Times to the Palm Beach Post to the women who have accused him of sexual assault. But he doesn’t follow through. One may draw any number of conclusions from that fact: that Trump is using threats of lawsuits mainly as instruments of harassment, that he does not judge following through on the litigation to be worth his time, or — this is the troubling one — that the allegations at the heart of these cases are in fact true.

I spent most of my career as a newspaper editor, which means that I was threatened with a libel suit about once a week. I never lost a judgment, paid a settlement, or anything of the sort — in fact, none of the cases ever even went to court. Usually, those threats die out for one of two reasons: The first is that a libel action requires the publication of a claim of fact, rather than a judgment or an opinion. If you publish “Jones is a rapist,” that’s a statement of fact, a claim that Jones has committed a particular crime. If you publish “Jones is a man of low character and does not deserve your vote for city council,” then that is a statement of opinion. Most libel threats result from the fact that people do not enjoy being criticized in print. The second thing that most often stops a libel suit in its tracks is that the claim has to be false. Unhappy people who were going to show up in my police blotter often threatened to sue me if I published a report that they had been arrested for drunk driving on a Saturday night, only to learn from their lawyers that this threat was nullified by the fact that they had in fact been arrested for drunk driving on a Saturday night.

I spent most of my career as a newspaper editor, which means that I was threatened with a libel suit about once a week.

But being in the right does not protect one entirely. Newspapers and other media outlets must maintain litigation insurance, which gets more expensive the more you get sued, even if you haven’t done anything wrong. And you incur legal fees even for a case that never goes anywhere. It’s $500 or more every time you pick up the phone and talk to your lawyer. That’s no big deal if you’re the New York Times (I’ll bet they pay more than $500 an hour, though) or a rich man such as Steve Bannon, living high on those Seinfeld royalties. (Bannon fortified his fortune with “a show about nothing.” Poetic.) But if you are a smaller publication or an individual without a lot of money, these things can be ruinously expensive.

To have committed libel, Wolff and his publishers must have printed a claim of fact that is: 1. false; 2. defamatory, meaning that it did some kind of damage to Trump; 3. published with actual malice, meaning Wolff knew it was false or acted with reckless disregard as to whether it was. There is a popular misconception that it is all but impossible for a public figure such as Trump to win a libel claim, but meeting those three criteria should not be that difficult in this case if what Trump’s people say is true. Establishing that the claim is false is a straightforward enough matter. Given that most of Trump’s net worth is tied up in his “brand,” which is another way of saying his public persona, establishing damages should not be very difficult, either, if only modest ones. As for the actual malice, if Wolff has indeed manufactured quotations or events, that would go a long way toward establishing that he knew he was publishing falsehoods.

The problem, of course, is that a lawsuit would lead to discovery, meaning that the president and the people around him would be questioned under penalty of perjury. One thing Steve Bannon and President Trump have in common is that each lies habitually, even in circumstances in which the lie serves no obvious purpose. But the courtroom has a sobering effect, even on habitual liars. One wonders what either man would actually say under questioning, to say nothing of what might be said by a Jared Kushner or a Kellyanne Conway.

Holtzbrinck has annual sales in the billions. It’s a company worth suing, if you have a case.

Does Trump?

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