THE ‘I’LL SUE YOU’ EFFECT
Donald Trump rarely follows through on his libel claims, but the threats can be chilling
Say something bad about Donald Trump, and he will frequently threaten to go to court. “I’ll sue you” was a Trump mantra long before “Build a wall.” But an analysis of about 4,000 lawsuits filed by and against Trump and his companies shows he rarely follows through with lawsuits over people’s words. He has won only one such case, and the ultimate result of that is in dispute.
The Republican presidential candidate has threatened political-ad makers, a rapper, docu- mentary filmmakers, a Palm Beach civic club’s newsletter and the Better Business Bureau for lowering its rating of Trump University. He’s vowed to sue multiple news organizations including The New York Times, The Wall Street Journal, The Washington Post and USA TODAY. He didn’t follow through with any of those, though he did sue comedian Bill Maher, an author over a single line in a 276-page book, and Miss Pennsylvania.
A USA TODAY Network analysis of lawsuits involving Trump and his companies includes just six in which Trump’s team formally claimed someone libeled, slandered or defamed him and a few other cases where he used other legal avenues to fight what someone said about him. At least one Trump target filed a counterclaim for harassment and won.
The threats can be effective. Even the possibility of a lawsuit by a rich, powerful opponent
raises the specter of years of expensive and time-consuming litigation. “Plainly, the guy uses lawsuits as a tool of intimidation and doesn’t care how much he clogs the courts with nonsense,” Maher said in an interview.
Alan Garten, the Trump Organization’s general counsel, said Trump the person and Trump the brand are intertwined, which means lawsuits, or the threat of them, are important to safeguard the name. “My job is to protect my clients and their brand from attacks,” he said. “To say now he should stop engaging in business or protecting his rights is crazy and inconsistent with the principles of the American people.”
He said it’s not surprising that few suits have actually been filed. “I’m not aware of many defamation lawsuits we’ve filed in the last 10 years, because we were able to achieve results without that process,” he said.
Some of the threats come in the heat of the moment. “Watch Kasich squirm — if he is not truthful in his negative ads I will sue him just for fun!” Trump tweeted in November about one of his primary opponents, Gov. John Kasich of Ohio. Trump dropped the threat there.
Trump has raised the possibility that, as president, he would “open up” the nation’s libel laws to make it easier to sue. That’s unlikely to happen. Standards for libel have been set over decades based on the Constitution, Supreme Court rulings and state laws, and the president has limited authority or influence in those realms, but it’s still disconcerting for some who study the media.
“We have a system that worked remarkably well to foster debate and discourse over 50 years. I think we tinker with that at our peril,” said Gene Policinski, senior vice president of the First Amendment Center at the Newseum Institute.
In September, Trump lawyers threatened the conservative Club for Growth with a lawsuit over political TV ads aired during Iowa’s caucuses. A letter from Garten said the commercial’s assertion that Trump supports higher taxes was among messages “replete with outright lies, false, defamatory and destructive comments and downright fabrications.” It threatened a “multi-million dollar lawsuit” if the organization didn’t pull the ads.
Club for Growth attorneys responded by calling it “nonsense” and threatened countersuits for abusive litigation. “We responded with a letter, ran several more ads and never heard from them again,” said Doug Sachtleben, Club for Growth spokesman.
Garten acknowledges the strength of the First Amendment, but said, “That doesn’t give them the right to misrepresent the facts.”
JOURNALISTS OFTEN TARGETS Both The Washington Post and
The New York Times have reported receiving threats from Trump lawyers during the campaign, though no suits have been filed. This isn’t new: In 1978, The Vil
lage Voice reported Trump threatened to sue one of its journalists. In 1990, The Wall Street
Journal said the same happened to Neil Barsky for reporting on Trump’s business record.
Trump’s lawyers threatened to sue USA TODAY in 2012 over a column by newspaper founder Al Neuharth that branded Trump a “clown,” noted his casino bankruptcy and said his Trumpbranded skyscraper in Tampa never materialized and was a “parking lot.” At the end of the column was a response from Trump because, as was Neuharth’s custom, he sent his columns to those mentioned and gave them a chance to respond adjacent his words. In this case, Trump’s ended with a trademark: “Neuharth is a total loser!” Still, a Trump attorney threatened a lawsuit over a series of telephone calls. Trump never sued.
Winning a libel or defamation case as a public figure is very difficult, but that’s sometimes not the end goal, said Larry Rosen, an outside attorney for Trump in New York. “It’s basically firing a shot across the bow and saying, look, you can’t just write whatever you want to write,” he said.
Twenty-eight states have adopted laws — known as “antiSLAPP,” for strategic lawsuits against public participation — aimed at protecting against lawsuits that could chill free speech. Trump lost one such claim. Tarla Makaeff, a California yoga instructor who is one of the plaintiffs in a class-action lawsuit against Trump University, employed an Anti-SLAPP defense in 2014 when Trump countersued her for defamation. A judge ruled in her favor, ordering Trump to pay a $798,000 penalty, although the money won’t come until the entire case is resolved.
Trump isn’t alone in trying to “hijack the judicial system” to silence critics, said Evan Mascagni, policy director at the Public Participation Project, which is lobbying for a federal anti-SLAPP law.
“If you really examine some of these cases, it becomes pretty obvious that Trump didn’t file these suits to seek justice. Rather, he filed them to intimidate, harass and silence his critics,” Mascagni said, citing Makaeff ’s winning claim as one example.
VEGAS CASE STILL OPEN In October, Trump took offense at a flier distributed by union workers during one of his campaign stops in Las Vegas. The flier’s claim: Trump didn’t stay at his own hotel during the event. Trump spoke that night at the Tropicana, but his campaign disputes the union’s claim that he didn’t spend the night at Trump Hotel Las Vegas. Trump and the hotel sued the culinary and bartenders union in federal court.
The suit does not claim libel, slander or defamation, which would require Trump to show that the flier wasn’t true and possibly that the union made its statement knowing it was false. Instead, the suit said the fliers violated Trump’s trademark by distributing “false and deceptively misleading statements” that could cause “reputational injury” to Trump Hotel Las Vegas. Trump’s attorneys claim the hotel “suffered and continues to suffer damages and irreparable injury which cannot be accurately computed at this time.”
“This is speech,” said Kristin Martin, the Las Vegas attorney representing the unions. “Only a litigious person would file this type of lawsuit. You have to wonder, what are his damages?”
The case is pending.
NO JOKING MATTER Trump went after a frequent critic, HBO’s Maher, for $5 million after a joke on Maher’s show in 2013 was reiterated on The To
night Show With Jay Leno. At the time, Trump was insisting President Obama was not born in the USA and wanted Obama to prove otherwise. Maher said on air that he’d give Trump $5 million if he could prove he wasn’t the descendant of an orangutan.
Trump’s lawyers sent his birth certificate to Maher and demanded the $5 million, which Maher did not pay. After filing a breach of contract in California superior court — complete with a copy of his New York birth certificate — Trump dropped the effort before it could get to trial. Asked about the case, Trump’s attorney Garten said only, “It was withdrawn pretty quickly.”
Maher said he’s used to nasty feedback, but the lawsuit was a first. He said he was ready to fight in court.
“I think the guy legitimately lashes out at any entity that challenges him,” he said.
The case Trump won in court involved former Miss Pennsylvania Sheena Monnin in 2013. When judges eliminated Monnin from Trump’s Miss Universe competition, she fired off a Facebook post calling the pageant “rigged” and resigned her state title. Monnin made appearances on national television in the wake of the statements, which eventually were part of the defamation case. In TV interviews, Trump on NBC called the allegations “dis- graceful” and on ABC called it “loser’s remorse.”
Trump sued in federal court in New York, and his attorneys successfully argued the organization lost a business contract over the situation. A judge ruled in Trump’s favor and ordered Monnin to pay $5 million.
“The extremism of it baffled me,” she wrote in a book selfpublished this year. “Was I such a threat that it was determined by the opposing side to shut me down and close my mouth from speaking, no matter the cost?”
“He comes at you with overwhelming legal force, and as a private citizen, you don’t have the ability financially or experientially to defend yourself,” said her father, Philip, who is not an attorney but initially represented her in the dispute.
Monnin lost a series of appeals. Her father said she ultimately settled but didn’t pay “a penny.” Trump’s lawyer declined to clari- fy. “We won the judgment and recovered funds,” Garten said.
AUTHOR BEAT TRUMP In 2006, Trump sued Timothy L. O’Brien over his book TrumpNa
tion. At the time, Trump said he was worth $5 billion or $6 billion, but O’Brien, now an Executive Editor at Bloomberg, wrote the figure was no more than $250 million. Trump sued in New Jersey and lost on appeal in 2011. The appeals judges found O’Brien didn’t act with “actual malice,” regardless of whether the book contained false statements.
The legal battle stretched half a decade, and if not for legal and financial support from a publisher, it could have ended differently, O’Brien said.
“We’re in an era where it’s very easy for plaintiffs with deep pockets to intimidate defendants in the media,” O’Brien said. “Things are always different without resources.”
“Plainly, the guy uses lawsuits as a tool of intimidation and doesn’t care how much he clogs the courts with nonsense.” Bill Maher