A laughable attempt to muzzle the press

The last time a sitting president sued a newspaper for libel, laughter broke out on the floor of the US Senate as a clerk read the news.

That was December 15, 1908, and the president was Teddy Roosevelt. He was said to be  “furious” that the New York World  newspaper linked him to corruption over the Panama Canal. Teddy ordered federal attorneys to file criminal libel suits against newspapers carrying the story all over the country. Democrats considered it to be outrageous, and one US attorney resigned in protest rather than prosecute for libel.

New York World publisher Joseph Pulitzer said in response:  “He cannot muzzle the World.”  (See Pulitzer’s Reply Dec. 16, 1908)

Roosevelt’s lawsuit,  US v Press Publishing,  is today considered the “last gasp” of seditious libel. The US Supreme Court ruling  in 1911 was only two pages, and it didn’t even bother to touch on the merits of the case. Instead, the court simply sustained an objection by the newspaper that “the court has no jurisdiction in this case, because there is no statute of the United States authorizing the prosecution.”

The case was thought to be a First Amendment landmark at the time, but it is barely remembered in communications law textbooks today.  After all, what sitting president would lower himself to file such a suit?  Even outright allegations of murder did not tempt President Bill Clinton to wield that cudgel against critics like Jerry Falwell. What president would be so foolish as to sue for libel just because a newspaper published a disagreeable opinion?

Which brings us to Donald Trump, who sued the New York Times  on Feb. 26, 2020, and the Washington Post, on March  3, 2020, for daring to publish an apparently disagreeable opinion about Trump’s relationship with Russian dictator Vladimir Putin. In the suit, Trump claimed that the Times knowingly published the supposedly false charge that there was a “quid pro quo” with the Russians in return for  their help in the 2016 election.  (The plaintiff’s petition can be read here.) 

This “quid pro quo” was described in  an op-ed written by former New York Times editor Max Frankel and published March 27, 2019.  In the op-ed, Frankel rejected  small concerns about “collusion” with Russia in the Trump campaign. The much larger issue, he said, involved the relationship between Trump and Putin.

It is a fact that US policy toward Russia softened under the Trump administration. Trump held up Ukrainian defense funds;  Trump hoped to legitimize Russian occupation of the Crimea;   Trump stopped the  enforcement of nuclear treaties with Russia;  Trump abandoned US forward bases in Syria that were taken over by Russian troops; and Trump fought bipartisan Congressional sanctions against Russia  (such as the Magnitsky Act).

“Candidate Trump made no secret of his intention to forge a warm relationship with the Kremlin,” Frankel said in the op-ed.  “But pledges of sanctions relief and other specific moves while not yet in office were unseemly at best and clearly offensive to the American convention that we have only one president at a time.”

How libelous is that? Or rather, how is that libelous?

The standard for proving  libel in a case brought by a public official or public figure is that defamatory published material was known to be false, or was published with reckless disregard for the truth.  Simple political opinion cannot be punished.

Trump should know this by now.  He has filed many unsuccessful libel lawsuits  (reviewed by Susan Seager at the Media Law Resource Center).  He sued the Chicago Tribune for criticizing his taste in architecture — and lost. He sued a book author for saying he’s not really a billionaire — and lost. He sued a former student at the former Trump university for saying it’s not really a university — and lost. 

The obvious dishonesty of these previous lawsuits pales in comparison to the pinnacle of mendacity reached with the Frankel lawsuit.  If alleging a deal between Trump and Putin is not an expression of opinion, but rather a known falsehood, how could that have been known?  Clearly Trump has gone to  great lengths to conceal the nature of his relationship with Putin, for example, by  blocking the release of transcripts of more than a dozen conversations. 

So when the New York Times goes into discovery, Trump will no doubt respond with claims of executive privilege. And that means that the Trump legal team will have tacitly admitted that Frankel’s column must be a matter of opinion because any facts that might exist to prove or disprove the allegations had already been placed beyond the reach of the defendant by the plaintiff himself.  

So why sue the New York Times if a win in court is so incredibly unlikely?  ProPublica president Richard Tofel saw it this way:

“What is happening here is a cynical play to establish a talking point. Now, whenever the nation’s leading newspaper reveals some new abuse of power or malfeasance in office, Trump can point out he is suing the Times. Perhaps, he may hope, the Times news pages will even pull a punch or two to avoid being seen as a presidential adversary.”

Tofel goes on to say “I hope and trust they will not.”

After all, Trump can’t muzzle the Times any more than Roosevelt could muzzle the World.  But there is still danger, as many observers of the law have noted.

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Interesting footnote for historians:   In an eloquent discussion of the danger of frivolous lawsuits, Theodore J. Boutrous said: “On Wednesday, Donald Trump became the first sitting president ever to file a defamation lawsuit against a news organization.”

It’s often true that analytical approaches crowd out historical perspectives. As noted in the lead paragraph of this op-ed, Trump was preceded in his frivolity by more than 100 years.