October 26, 2020

Trump Campaign Files Laughably Stupid SLAPP Suit Over A NY Times Opinion Piece

Welp, Donald Trump promised to “open up libel laws” back when he was first running for President, and his campaign has now decided to test out some moronic theory of defamation in suing the NY Times over an opinion piece. Just to be clear upfront: the lawsuit is bad. It will not succeed and appears to have no intent to succeed. Instead, it appears to be almost entirely performative — including the kind of text you’d normally see on a political website, rather than in a lawsuit filed by a serious lawyer. But, hey, this one is filed by Charles Harder, who has a bit of a history of filing such lawsuits (including against me!).

Everything about this lawsuit is silly. First, it’s suing over an opinion piece published by the NY Times in March of 2019 by Max Frankel. Just the fact that it’s an opinion piece (opinions are not defamatory) should give you a sense of where this is going. The article itself, entitled “The Real Trump-Russia Quid Pro Quo” makes a pretty banal observation: that whether or not there was any direct “collusion” between the Trump campaign and the Russian government, it doesn’t matter if both sides expected certain outcomes (i.e., if Trump’s campaign expected the Russians to help get him elected, and if the Russian’s expected that Trump would favor pro-Russia policies — then there would be no need for actual direct communication between the two). Whether or not you think that’s an accurate summation of what happened, it’s certainly an understandable opinion for one to hold.

But, Trump and Harder try to argue that this opinion is not true. But everything about the argument made in the lawsuit is silly.

The Defamatory Article does not allege or refer to any proof of its claims of a
“quid pro quo” or “deal” between the Campaign and Russia. Rather, the Defamatory Article
selectively refers to previously-reported contacts between a Russian lawyer and persons
connected with the Campaign. The Defamatory Article, however, insinuates that these contacts
must have resulted in a quid pro quo or a deal, and the Defamatory Article does not acknowledge
that, in fact, there had been extensive reporting, including in The Times, that the meetings and
contacts that the Defamatory Article refers to did not result in any quid pro quo or deal between
the Campaign and Russia, or anyone connected with either of them.

But, if you read the actual Times piece (which is quite short), it doesn’t allege any actual deal. Indeed, it says right up front that there didn’t need to be a deal. Literally the 1st paragraph of Frankel’s piece lays out the lack of any need for an explicit quid pro quo, highlighting that merely having everyone know what to expect is more than enough.

Collusion — or a lack of it — turns out to have been the rhetorical trap that ensnared President Trump’s pursuers. There was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy because they had an overarching deal: the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy, starting with relief from the Obama administration’s burdensome economic sanctions. The Trumpites knew about the quid and held out the prospect of the quo.

That’s not insinuating a deal. It’s doing the opposite — saying that a deal wasn’t needed.

But the lawsuit assumes an entirely different interpretation. Even worse, its “proof” that the NY Times must know this reporting is false is the Mueller report that came out three weeks after the article was published. How was the NY Times supposed to know the details of a classified report nearly a month early in an opinion piece? That is left as a mystery for the ages. The Times piece was published on March 27th. As the filing admits, the Mueller report wasn’t released until April 18th.

The Times’ story is false. The falsity of the story has been confirmed by Special
Counsel Robert Mueller’s Report on the Investigation into Russian Interference in the 2016
Presidential Election released on or about April 18, 2019 (the “Mueller Report”), and many
other published sources, that there was no conspiracy between the Campaign and Russia in
connection with the 2016 United States Presidential Election, or otherwise. Among other things,
there was no “deal,” and no “quid pro quo,” between the Campaign or anyone affiliated with it,
and Vladimir Putin or the Russian government.

Indeed, Harder tries to argue that the reason the NY Times put this piece out prior to the Mueller report was that it somehow knew the Mueller report would prove the article wrong. Which, of course, it did not. The whole case seems to be based on Harder and/or the Trump campaign misreading the Frankel article.

There’s also a lot of garbage in the filing that no serious lawyer would put into a filing, unless it was to appeal to a political base, rather than a judge.

It is not entirely surprising that The Times would publish such a blatant false
attack against the Campaign. There is extensive evidence that The Times is extremely biased
against the Campaign, and against Republicans in general. This evidence includes, among other
things, the fact that The Times has endorsed the Democrat in every United States presidential
election of the past sixty (60) years. Also, Max Frankel, the author of the Defamatory Article,
described himself in an interview as “a Democrat with a vengeance.”

The case has been filed in NY state court, and as Harder well knows, New York has a very limited anti-SLAPP law, meaning that it is unlikely to apply.

Of course, I find it depressingly amusing that this comes the same month that Harder was in court in California on behalf of Donald Trump supporting broad anti-SLAPP laws in a case in which Harder argued that “a defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech.”

The lawsuit is garbage and hopefully the NY Times gets it quickly tossed out, but I guess this means that Harder and Trump’s support for anti-SLAPP laws that protect against these kinds of frivolous lawsuits won’t extend to New York or to a (necessary) federal anti-SLAPP law.
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