So, former President Donald Trump is planning another foray into litigation. It may be forthcoming in a civil suit against CNN and, perhaps, other media for libel due to voluminous reporting castigating his claims of election fraud.
It would be the most recent addition to the some 4,000 lawsuits he has been involved in over the years, ranging from small claims courts to the U.S. Supreme Court, excluding the looming criminal proceedings he is facing in several different federal and state jurisdictions.
The 45th president signaled his latest litigation intention last week in the midst of hosting a breakaway professional golf tournament bankrolled by friends in high places in the Saudi Arabian government. The announcement followed a sharply worded letter from one of his lawyers, warning the cable news outlet to expect the lawsuit because of its persistent reports about what it refers to as his client’s “Big Lie” about the 2020 presidential election, a term that the attorney’s 282-page missive claims has been used more than 7,700 times on the news programs, but who’s counting.
The ex-president apparently is, but what he is counting on and where he would launch the imminent lawsuit is unclear. The device is probably a strategy aimed more at political ends than ending up in a legal victory. In addition to CNN, Trump also threatens to sue other media for “defrauding (him) and the public” via their reporting, which could be part of a clumsy design to deter others from similar reporting or remarks, although that train left the station a long time ago.
Since the CNN cablecasts are omnipresent, the case could be brought anywhere the claimant feels his reputation has been besmirched.
One potential site is right here in Minnesota. While he probably would want to avoid certain areas where he is not beloved and, perhaps, pursue his form of justice where he is regarded more highly, Minnesota could be an inviting site for multiple reasons.
First and foremost is that while libel lawsuits are hard to win, a claimant prevailed here just last week in a fairly groundbreaking matter. Although the case is not yet concluded, in Johnson v. Freborg, the Minnesota Court of Appeals ruled in favor of a man who had been targeted in #metoo remarks on Facebook by a former romantic partner asserting sexual assault and rape.
The case had been dismissed on First Amendment freedom of expression grounds by a Hennepin County District Court judge before it was reinstated by a three-judge appellate panel, which reasoned that “the totality of circumstances” warrant allowing the case to proceed to a trial. The claimant still must prove the statements were false and caused him reputational harm that a jury can translate into financial loss. But the target of the postings has at least reached first base or, more appropriately, is in scoring position as a result of the appellate court ruling.
The former occupant of the White House, he might not hit a home run. But he could create enough cacophony to justify his swinging at what he asserts is libelous reporting about his incessant claims of a phony election outcome two years ago as well as its coverage dating back to the 2016 election that he did win.
It would not be the first time a forum in this state is suggested for “Big Lie” libel litigation (see “Libel litigation against Lindell”). One of his election denier confederates, Minnesota-based My Pillow manufacturer Mike Lindell is asserting claims in libel litigation that could have been brought here but instead is taking place in Washington, D.C., where the pillow maker was sued by voting machine companies and personnel. But Lindell is the defendant in that morass, and Trump is a would-be claimant.
Lindell’s physical presence in this state provides another reason for the ex-president to sue here so that he could draw upon Lindell for support. The entrepreneur from Chanhassen is one of the brains of the election-denying gang, and Trump might find comfort in litigating on the turf of one of his most vocal and voluble sycophants.
A Trump lawsuit here would be a boon to the local economy, a sort of Libel Super Bowl I, attracting a horde of media, other onlookers, supporters, detractors and protesters, although it might get a bit unruly at times. Hopefully, the authorities still have the chain link fencing and other barriers and security devices from the Derek Chauvin trial last year.
If he does sue, he would not be the first former president involved in post-White House libel litigation. Nor would he be the only Republican one from New York. In 1915, six years removed from the presidency, Theodore Roosevelt was sued by a Republican Party official in their mutual home state of New York for TR’s statements that he was “corrupt” and “obnoxious,” among other insults.
Unlike Trump, a prospective claimant, Roosevelt was a defendant, in a high-profile trial conducted in Syracuse. The five-week proceeding was highlighted by eight days of testimony by the former president, along with a cameo appearance on the witness stand by a supportive cousin from the opposite political party, Franklin Delano Roosevelt, later to become a White House occupant himself. After two days of deliberations, the jury returned a verdict in favor of the ex-president, which some felt would propel him, still in his late 50s, to another run for the White House in 1916. But he abstained, waiting for the next election cycle, and died in 1919 before he could seek the presidency again.
Many obstacles for Trump
Although the appellate court Johnson case might be an inducement for Trump to sue in Minnesota, he would face many obstacles wherever he launches his litigation. In a libel case, he would expose himself to compulsory pre-trial revelation of various information about the election and his actions to subvert its outcome. Additionally, he would probably have to produce tax returns and other financial data if he asserts financial harm caused by CNN’s reportage. Any assertion of emotional or mental distress may necessitate divulging medical records.
But an even higher hurdle for Trump would be getting to trial. Most libel lawsuits are dismissed on various legal grounds well before reaching a jury. One obstacle is proving that the “Big Lie” reporting is false, an essential element of a libel case here or anywhere else for that matter, a burden that falls upon him as the party pursuing the suit.
Trump’s lawyer already has hinted how he would try to do so. Rather than attempting to establish that the election was fraudulent, he seems prepared to cast aside the theories espoused by Trump, Lindell and others and instead asset that Trump had a “genuine belief” that he was right. In other words, he would argue that even though there is no cognizable evidence that the election outcome was phony, he thinks it was and, therefore, he did not lie because he did not engage in any intentional falsehoods. But he would be doing so in the face of cumulative, consistent, compelling and unrebutted conclusions that his belief is groundless.
He might have a better chance of selling that as an insanity defense, the 19th-century doctrine that exculpates criminal behavior if the participant does not “know the difference between right and wrong,” as codified in Minnesota as a person who has a mental “defect” or “illness” that prevents knowing “the nature of the act, or that it was wrong.” But that principle applies to defendants in criminal case, not to parties who bring civil lawsuits.
However, the ex-president might not even get that far because he first would have to scale the constitutional citadel encountered by many libel litigants. As a public figure as well as former public official, he would have to prove “with convincing clarity” that CNN acted with “actual malice,” meaning that it knew its reporting was false, acted with “reckless disregard” for the truth or entertained “serious doubts” about its veracity. This high standard stems from the famous New York Times case, a 1964 decision of the Supreme Court imposing that burden on public officials, well-known personages and topics of “public concern,” all of which seem to describe the “Big Lie” news coverage.
This heavy burden that he would face was not present in the recent Johnson decision of the Minnesota appellate court, which involved a “private” dispute between obscure individuals that did not invoke the New York Times doctrine and permitted the claimant to proceed with the case by asserting and establishing a much lesser standard of negligent or careless behavior by his social media posting antagonist.
The ex-president, however, can hold out hope that the high hurdle can be alleviated. Some members of the super-majority conservative wing of the Supreme Court, championed by Justice Clarence Thomas, have been chafing at the New York Times doctrine and advocating its dismantling. They may have an opportunity to do so with litigation brewing in the lower federal courts, including the one brought by ex-Alaska governor, 2008 Republican vice-presidential candidate and current leading candidate for a vacancy in the House of Representatives, the inestimable Sarah Palin, who is challenging her loss earlier this year in a libel lawsuit against none other than the New York Times, a case that could provide a vehicle for overturning that prevailing principle.
The presumes that at least four members of the high court agree to hear the case, a reasonable possibility, and that at least five concur in overturning the long-standing precedent, an impediment that has not deterred this super-majority in recent times.
While uncertain, these developments remain unresolved. In the meantime, there are ample reasons militating against libel litigation by the ex-president.
But given the bellicosity of his threat and his penchant for throwing caution to the wind, the letter from his lawyer cannot be disregarded as hot air. A libel lawsuit by the former president against CNN seems likely. If he chooses to do so, he could do worse than bringing the case here in Minnesota.
Marshall H. Tanick is a constitutional and employment law attorney with the Twin Cities law firm of Meyer Njus Tanick.