By William B. Turner
To say someone is an “empty suit” is kind of like saying, “all hat, no cattle.” It suggests that the individual lacks substance, may be able to talk a good game, but ultimately will not follow up.
But here, by “empty suit,” I mean more specifically that President Trump is the President of empty lawsuit threats. Most recently, after CNN withdrew a story and fired two reporters over it, a recording disclosed Trump saying he wanted to sue the network. Such a suit would face numerous problems, chiefly the fact that CNN retracted the story, and three of the journalists who worked on it resigned as a result of the incident, all of which got wide coverage in the press. The gravamen in a claim of libel or defamation is harm to the petitioner’s public reputation, which is hard to prove when the retraction and ignominy of the sources of the alleged libel are more widely reported than the allegedly libelous claim.
More importantly, the Supreme Court has long held that the point of the First Amendment is to ensure robust debate on matters of public concern, such that it is very difficult for a public figure to win a libel suit against a publication. In the famous case, New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court held, “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount — leads to a comparable ‘self-censorship.’ Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.” p. 279.
One thing most people think they know about libel suits is that truth is a defense. That is, if the claim is true, it cannot be defamatory. This is true under the case in question, but the point of the quotation above is that, with respect to public figures, at least, truth may not be the only defense, and publication of claims that the petitioner can prove are false is not, by itself, sufficient to carry a claim of libel or defamation.
For public officials, winning libel or defamation cases is not impossible. It requires a showing of “actual malice.” The Supreme Court put the point this way: “anyone claiming to be defamed by the communication must show actual malice or go remediless. This privilege extends to a great variety of subjects, and includes matters of public concern, public men, and candidates for office.” pp. 281-2. The Court defines “actual malice” as “with knowledge that it was false or with reckless disregard of whether it was false or not.” p. 280.
In the case of the CNN story, the proof is in the pudding. CNN admitted that the story was false in retracting it, but the very act of retracting the story and accepting the resignations of three reporters who worked on the story plainly indicates that the organization neither new that the story was false, or published it with reckless disregard for its possible falsity.
In sum, this is a suit President Trump certainly could not win.
This should come as no surprise. Trump has in multiple ways demonstrated that he has essentially zero grasp of law or legal procedures. His ridiculous claim that Judge Curiel, who oversaw the notorious case against Trump University, had a conflict of interest because his parents are Mexican and Trump had pledged to build a wall at the Mexican border, is a glaring example.
Precisely because he knows nothing about the subject, one has to doubt that Trump cooked up the claim in the battle over the Muslim ban that the federal courts were without authority even to review the ban, which is a breathtaking legal claim, essentially saying that no law can constrain the president in the area of deciding who may or may not enter the United States. Unsurprisingly, federal judges have uniformly rejected this claim. The Constitution is an enabling constraint. It has the paradoxical effect of both enabling government actors, but also constraining them. The purpose of the Constitution in 1789 was to create a government that is notably more powerful than the one that preceded it, but not too powerful, so it places limits on the power of all governmental actors. To allow any of them to ignore the limits the Constitution places on their powers would be to render it completely pointless.
We already knew that Donald Trump loves pointless lawsuits, as he demonstrated by filing, then withdrawing, a suit against Bill Maher after the comedian demanded that Trump prove that he was not the result of his mother copulating with an orangutan on the logic that only orangutan fur could explain Trump’s hair color. Trump sent Maher a copy of his birth certificate, showing that his father was Fred Trump, then filed suit claiming that Maher had breached a contract by not making the donation he had promised upon proof of the claim from Trump. This was obviously an absurd suit since a comedy sketch on late night television clearly does not a contract make, but Trump induced his lawyer to file it anyway. The lawyer refused to explain why he withdrew the suit.
This rule about the extreme difficulty of winning suits on matters of public importance is one to keep in mind. Recently a story has emerged that the brother of Betsy DeVos, Erik Prince, has been cooperating with President Trump to create a private, deniable cadre of spies to protect Trump from the alleged threat of the “deep state” to his presidency. The story indicates that Prince not only denied the report, but threatened to sue the publication that originally produced it. Prince is not as clearly a public figure as other major cases in this area, but the key issue in previous cases, as the quotation above indicates, was less that the individuals were public figures as that the First Amendment protects vigorous debate of issues that matter to the public, and surely any attempt by the president to create a private spy agency qualifies.
Prince’s lawsuit threat is thus just as empty as Trump’s and looks as if it amounts to an admission that the story is true.
To state what should be obvious, all of this applies with equal force to the ridiculous claim by Roy Moore that he will sue the Washington Post for publishing allegations that he pursued inappropriate relationships with teen girls.
Keep this in mind when Trump or anyone in public life threatens to sue anyone for libel or defamation.