I have written before about Donald Trump’s strike suits—that is, the litigation he launches that is designed to terrify and silence critics and to extract cash from them. When a sitting president resorts to such tactics, it is especially disreputable and dangerous, because the plaintiff is also in control of large parts of an immensely powerful federal government that he can use for additional leverage. Trump’s strike suits have already engineered settlement payments from CBS, ABC, and YouTube; he is currently involved in ongoing litigation against the BBC, the New York Times, the Wall Street Journal, the Des Moines Register, and the Pulitzer Prize Board.
Trump’s latest lawfare target, as signified by a demand letter his lawyer issued last week, is the Center for American Progress (CAP). In that letter, Trump attorney Alejandro Brito demanded that CAP “immediately retract the false, malicious, and defamatory statements made about President Trump” in a recent report it published. Brito then quoted a dozen sentences from the report that he claims are defamatory. With respect to just about every alleged defamatory statement that Brito listed, I cannot see how any competent attorney could ever believe that any of them meet the elements of defamation at all; furthermore, every single one of the statements that might qualify as defamatory is ultimately invulnerable to suit because of the actual-malice standards that originated in New York Times v. Sullivan (1964).
For instance, one of the offending statements is the following:
“The second Trump administration is trying to take credit for the historic drop in violent crime across America despite the fact that this trend began before it took office, and it is using these declines to justify expanding policies that are unpopular, ineffective, and costly.”
The Trump letter charges that this sentence is “materially and provably false.” That claim is ridiculous, but it provides a nice opportunity for a mini-lesson in defamation law. No statement can be defamatory unless it is both capable of damaging someone’s reputation and capable of being proven true or false. That means, among other things, that the expression of opinion cannot be defamatory—because opinions cannot be proven true or false. In other words, if this sentence were entered into a defamation contest, it wouldn’t even make it out of the starting gate.
Notably, it is impossible to understand CAP’s claim that the administration is trying to take credit for a drop in crime rates as defamatory (as everyone knows, politicians and political bodies try to take credit for things all the time). It is impossible to understand CAP’s claim about the timeline of falling crime rates as damaging to Donald Trump’s reputation (it looks to be a statement about the country, not the president). And it is impossible to understand an allegation that Trump’s policies are unpopular, ineffective, and costly as anything but a protected expression of opinion.
One can perform the same analysis, and get just the same result, for just about every one of the sentences the letter cites. Perhaps there is one sentence that might satisfy the elements of defamation: the quote at the top of Brito’s list, which alleges the president is carrying out “an effort to falsely claim his policies have reduced crime.” I suppose one reading of that sentence is that Trump has been intentionally deceptive about the impact of the administration’s policies, but in practice actual-malice protections make the sentence invulnerable to suit. It is difficult to imagine any circumstances in which the CAP analyst who wrote it would be aware of any evidence disproving that proposition (and, indeed, it’s possible that the offending proposition is so vague it cannot be disproven), so the actual-malice doctrine provides impunity.
Similarly, the proposition Brito identifies as most reckless—that the administration’s “primary goal was never to stop crime”—is so general that it cannot realistically be viewed as provable or disprovable. (Because it is nearly impossible to imagine how CAP would acquire conclusive factual evidence of the primary or secondary goals of some particular policy of the Trump administration, it is therefore nearly impossible to imagine how reckless disregard could ever be proven.)
And finally: Even if the essentially rhetorical nature of the CAP report’s criticisms is overlooked, it is hard to see how any reasonable person could determine that Donald Trump’s reputation has been damaged to the tune of the five-billion-dollar verdict the demand letter contemplates. Generally, the notion that Trump’s reputation could be damaged at all by a think-tank report that hypothesizes about his motives is hard to take seriously. The bottom line here is that everyone deserves the presumption of innocence, but it is difficult to understand this letter from the president’s attorney as a good-faith attempt to protect his own reputation under the law. Regrettably—and relatedly—it is quite easy to understand this letter as an attempt to cancel political criticism by means of intimidation and prospective assignment of legal expenses.
This demand letter is especially notable because it is especially silly. Or at least it would be silly if it came from someone else, because in that case its target might just laugh it off. But a letter sent by the president’s lawyer is hard to ignore, even if it makes ridiculous claims. And it is reasonable to conclude that the primary goal (ahem) of such a demand letter is to frighten and intimidate its recipient. Florida’s ethics rules prohibit lawyers from bringing an action unless it has a basis in law and fact—and if this contemplated action has such a basis, I sure can’t discern it—but for understandable reasons, judges and disciplinary bodies are hesitant to enforce such ethics rules. On the other hand, Trump’s lawyer has already demonstrated that he is exceptionally poor at following the rules regulating attorney conduct: The previous complaint that Brito filed—Trump’s defamation action against the New York Times—was rejected by the court as being “decidedly improper and inadmissible,” essentially because its extensive, over-the-top praise of the president made the entire pleading ridiculous. I suppose it’s possible for Trump’s lawyer to breach professional standards so extensively and so obviously that he actually faces personal consequences for it, but I won’t hold my breath.
Cato’s president, Peter Goettler, has many gifts; one of them is that (unlike me) he doesn’t get distracted by the academically interesting problems President Trump’s awful behavior creates. In a statement about Brito’s demand letter Goettler gave to the New York Times last week, he cut to the chase:
“Independent organizations across the ideological spectrum must be free to express their analysis and opinions, and to challenge those in power without fear of political retaliation or legal intimidation. Disagreements on matters of policy should be settled through open inquiry, evidence, and debate—not threats designed to silence criticism.”
Well said! Of course, I have written before on my concerns about modern defamation law—and, in particular, the respects in which it discourages meritorious defamation actions while encouraging meritless defamation claims by powerful actors that extract abusive settlements. It is an outrage that our president has set up a side business that specializes in the latter.
