From whatever angle you look at it, the president is picking a losing fight.
President Trump is getting bad legal advice and bad political advice. Or, if he’s going on his own instincts, maybe that most mystifying trait of his has yet again reared its head: He just can’t stand prosperity or coast on good news. Whatever the case, this is not the right time — not that there would ever be a right time — to file a frivolous libel lawsuit against the New York Times, a suit that will put him on the defensive when he should be playing election-year offense.
This may have been the best week of the Trump presidency. Apparently poised to nominate an unabashed socialist as their 2020 standard-bearer, Democrats are panicking over the potential ramifications, including the down-ballot fallout. Meanwhile, Trump’s poll numbers are up, and he just had a successful visit to India, a country of great importance.
Even amid a stock-market plunge, Trump held the best press conference of his presidency on Wednesday evening. Yes, it’s early and a lot could go wrong. His administration, though, appears to be managing the coronavirus outbreak well. With Democrats shamefully trying to stoke panic, the president made like the adult in the room, urging calm and bipartisanship. Of course, we’re talking about Washington, so “calm and bipartisanship” have to be graded on a curve: Trump did call House speaker Nancy Pelosi “incompetent” and took the obligatory shot at Senate minority leader “Cryin’” Chuck Schumer. But these fleeting jabs were fair response to their targets’ demagogic sniping. Plus, Trump’s point needed making: They are undermining the cooperation the country needs from its elected leaders in a potential health crisis.
So things are going Trump’s way. It is hard to imagine a worse moment for the president (through his 2020 campaign) to file his libel suit, the gravamen of which is a March 2019 op-ed by the Times’s former executive editor, Max Frankel.
The defamation claim is patently meritless. As a matter of law, opinion cannot be defamation, period. And Frankel’s essay was an opinion piece: It was expressly written as the author’s opinion and published in the opinion section of the paper. Drawing on reported news and mostly undisputed facts, Frankel argued that there must have been “collusion” between the Trump campaign and the Putin regime during the 2016 election. The piece focused on the infamous June 2016 Trump Tower meeting, in which the top tier of the Trump campaign knowingly welcomed Natalia Veselnitskaya, a lawyer connected to the Russian regime, who had promised information that would harm Hillary Clinton’s campaign.
The meeting featured Veselnitskaya’s plea for relief from the Magnitsky Act — legislation, stridently opposed by Russian dictator Vladimir Putin, which permits the U.S. to seize the assets of regime officials and cronies. From this, Frankel deduced that there must have been a quid pro quo: Russian election assistance in exchange for a more favorable foreign policy toward Russia that would include sanctions relief.
The law does not require that an opinion be perfectly reasonable, much less correct, in order for it to be insulated from libel claims. Frankel’s opinion was far from outlandish. The president seems to believe that the Mueller investigation’s failure to find an actionable criminal conspiracy between the Trump campaign and Russia means there was no “collusion” of any kind between the two, and that to claim otherwise is a defamatory smear. But that is simply not so.
Collusion is just concerted activity between two or more people. It is not necessarily criminal. As I’ve pointed out many times, it was wrong for Trump’s critics to use the weasel word “collusion” to suggest the existence of a criminal conspiracy for which there was no evidence. It is just as disingenuous for the Trump camp to suggest that Mueller’s finding of no criminal conspiracy is the equivalent of finding no unsavory collusion whatsoever. The Trump Tower meeting was plainly unsavory.
Highlighting Mueller’s no-crime finding, the president’s suit repeatedly stresses that “there was no conspiracy between the [Trump] Campaign and the Russian government” (emphasis in the original). Yet, Frankel’s op-ed did not claim there was a criminal conspiracy. It inferred that there was an “overarching deal” that was clear enough not to require “detailed collusion”: The Trump campaign wanted help from Russia to defeat Clinton, and the Russian regime wouldn’t provide such help out of the goodness of its dark heart — Putin would expect solicitude if Trump were elected, including an easing of sanctions, in return. Frankel described this implicit “deal” as a “quid pro quo,” a term literally meaning “this for that” — which, like “collusion,” is not necessarily criminal.
The president’s suit stresses that the Trump Tower meeting did not amount to anything of substance — Veselnitskaya had nothing useful to offer, and the Trump campaign did not agree to any concessions to Russia. But again, this does not mean it was unreasonable for Frankel to form an opinion based on the apparent expectations of the two sides. Frankel’s opinion could be wrong, but that would not make it an intentionally or recklessly false assertion of fact, the libel standard that Trump, as a public figure, would have to satisfy.
Without a hint of irony, the Trump suit notes that the Times has “reported Ms. Veselnitskaya’s statement that she never worked on behalf of the Russian government.” So . . . is the president saying that we must accept Veselnitskaya’s statement as true because her word is unimpeachable and the Times reported it? There is overwhelming evidence, easily available to the president, to suggest that it was a lie — not least the Mueller Report, on which the president so heavily relies for his assertion that there was no criminal conspiracy. Mueller describes Veselnitskaya as a former Russian government prosecutor who “continued to perform government-related work and maintain ties to the Russian government,” and who has been indicted by the Trump Justice Department for lying about her relationship to the Russian government and thus obstructing a court case involving a Kremlin-connected business (see: Mueller Report, p. 112 & n. 676.).
Of course, the president is entitled to his opinion on this subject, just as he is entitled to opine that Speaker Pelosi is “incompetent” and that the Times is the “fake news” “enemy of the people.” In this great country, you have the right to draw your own conclusions from reported information, and to express your views — right or wrong.
But see, Max Frankel has the same right. What’s more, Frankel was engaged in political speech, just as the president frequently is when he unburdens himself. For the Framers, political speech was the species of expression that deserved the most robust First Amendment protection of all.
So, we’ve established that the suit lacks legal merit. How much damage will the president do himself by bringing it?
Inevitably, the New York state court will throw the suit out. At that point, the president’s opponents will spin the ruling as the work of a judge who surely concluded there was merit in Frankel’s collusion claims. How does that help the president and his campaign? It doesn’t, nor does it hurt his opposition. To the contrary, besides having plenty of resources to fight the suit, the Times will be delighted at the publicity — and the opportunity to remind its readers and followers about the Trump Tower meeting — that it creates.
None of this makes sense. The president has the Mueller report. He has its ultimate conclusion that there was no criminal conspiracy. He has a good argument that the whole escapade was a politically motivated farce, spearheaded by the senescent Mueller and a cabal of partisan Democratic prosecutors, who knew they had no case yet spent two futile years trying to nail him. If the Trump Tower meeting comes up, the president can deflect it by countering that it doesn’t hold a candle to reliance by the Clinton campaign and the Obama administration on a foreign spy and his Russian sources to fabricate a narrative that Trump was a traitorous national-security threat. The lawsuit does not help the president make these points; it is counterproductive.
What’s more, Trump already has more evidence than he could ever use to back up his assertions that the Times is in the tank for the Democrats. (Of course, that’s just my opinion, right?) He does not need to file a lawsuit in order to make the point that Frankel, a Times fixture for years, has publicly described himself as “a Democrat with a vengeance.” He does not need a lawsuit to underscore that the Times and the legacy media for which it plays pied piper is incorrigibly, unabashedly anti-Trump, and will not give him a fair shake no matter what he does.
By filing this lawsuit, the president necessarily reminds the public of the Trump Tower meeting, which had long faded from the news. If he’s hell-bent on sticking it to the media as revenge for its coverage of the Russia saga, does it make sense to do it by citing the most damaging evidence of collusion between his campaign and the Kremlin? Though he found no crime, Mueller’s portrayal of the Trump Tower meeting is unflattering, to put it mildly. The meeting undeniably shows the Trump campaign accepting the prospect of Russian help to defeat Clinton. It demonstrates extraordinarily poor judgment: By taking the meeting, Trump campaign officials made their candidate vulnerable to whatever Putin might say about it later on. (Putin, in case you hadn’t noticed, lies a lot.) Moscow could easily have put out false propaganda that it was in cahoots with Trump, and that he was in on the hacking.
Lastly, the lawsuit once again places a negative spotlight on Donald Trump Jr., who arranged the meeting. Don Jr. has been tirelessly stumping for Republican candidates and causes across the country. He has become a real asset to his father’s campaign and the GOP. Why risk undermining his effectiveness as a surrogate?
Legally, politically, strategically, cathartically — I can’t see a single way in which the libel suit against the Times helps the president. I guess maybe things were going too well.