It's always something.
In my last update on the Donald Trump/Stormy Daniels/Michael Cohen saga, I described the hearing at which Michael Cohen asked United States District Court Judge James Otero to stay — that is, freeze — Stormy Daniels' lawsuit in federal court in Los Angeles, in which she seeks a declaration that her $130,000 hush-money deal with the President of the United States is invalid, and in which she sues Michael Cohen for defamation. Michael Cohen filed the declaration Judge Otero demanded, committing to taking the Fifth in the Los Angeles case. Judge Otero then granted Cohen's motion in a thoughtful and thorough order. So, for those keeping score at home: there's an ongoing federal criminal investigation of the Stormy Daniels hush money deal in New York, and there's Stormy Daniels' lawsuit in Los Angeles, which is temporarily stayed.
That was too calm. Now Stormy Daniels, through her not-exactly-media-shy attorney Michael Avenatti, has sued Donald Trump for defamation in federal court in the Southern District of New York — the same court where United States District Judge Kimba Wood is sorting out the disputes relating to the search of Michael Cohen's office. (As of this writing the case isn't assigned to a judge yet; it's possible that it would get transferred to Judge Wood as related to the matter before her.)
In the lawsuit, Ms. Daniels repeats her now-familiar account of a relationship with Trump. She says that in May 2011, when she was contemplating telling her story to In Touch, a man threatened her in a Las Vegas parking lot, telling her to forget the story. She recently released a sketch of her impression of the man who threatened her. The President of the United States, ever temperate and thoughtful of his lawyers' blood pressure, tweeted about the sketch:
In case you can't see the image, he said "A sketch job years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!
(All quotations of the President of the United States are [sic])
Ms. Daniels claims that President Trump has accused her of fabricating the threat incident, and has therefore defamed her:
Mr. Trump's statement falsely attacks the veracity of Ms. Clifford's account of the threatening incident that took place in 2011. It also operates to accuse Ms. Clifford of committing a crime under New York law, as well as the law of numerous other states, in that it effectively states that Ms. Clifford falsely accused an individual of committing a crime against her when no such crime occurred. Mr. Trump's statement is false and defamatory. In making the statement, Mr. Trump used his national and international audience ofmillions ofpeople to make a false factual statement to denigrate and attack Ms. Clifford.
This is a weak claim, though perhaps (particularly in New York) not weak enough for the President to get it dismissed early.
Let's start with the basics. Only provable statements of fact can be defamatory. Insults, hyperbole, overheated rhetoric, pure opinion, and other things not reasonably interpreted as a statement of fact cannot be defamatory. One of the earliest questions in this case — and likely the one the President's lawyers will attack when they file a motion to dismiss the defamation suit — is whether Donald Trump's tweet can be taken as a provable statement of fact, as opposed to mere bluster, hyperbole, insult, and rhetoric.
This is not at all an idle question; the President has already won a case on this basis. In 2016, political strategist Cheryl Jacobus filed a similar defamation claim against Trump, asserting that Trump defamed her when he claimed in a tweet that she begged for a job and was rebuffed:
Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility.
In that case, a New York court dismissed the lawsuit against President Trump, finding that the tweet could not be taken as a statement of provable fact, but was hyperbole and political opinion. There are several important factors in this decision. First, the New York court noted that under New York law, whether a statement is fact or opinion is a question of law for the court — meaning that it can be resolved by the court on a motion to dismiss. Second, the New York court emphasized how important the context of the statement is in determining whether it is fact or opinion. When the statement in question is a Trump tweet, the context is a dumpster fire. Here's what that court said:
Moreover, the immediate context of defendants' statements is the familiar back and forth between a political commentator and the subject of her criticism, and the larger context is the Republican presidential primary and Trump's regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him, including journalists and media organizations whose coverage he finds objectionable. (See eg Jasmine C. Lee & Kevin Quealy, The 289 People Places and Things Donald Trump Has Insulted on Twitter: A Complete List, The Upshot, NY Times [digital ed], Dec. 6, 2016,http://www.nytimes.com/interactive/2016/01/28/upshot/donald-trump-twitter-insults.html [accessed Jan. 8, 2017]). His tweets about his critics, necessarily restricted to 140 characters or less, are rife with vague and simplistic insults such as "loser" or "total loser" or "totally biased loser," "dummy" or "dope" or "dumb," "zero/no credibility," "crazy" or "wacko," and "disaster," all deflecting serious consideration. (Id.; see Technovate LLCv Fanelli, 49 Misc 3d 1201[A], 2015 NY Slip Op 51349[U], *4 [Civ Ct, Richmond County 2015] ["On-line speech often is characterized by the use of slang, grammatical mistakes, spelling errors, and a general lack of coherence."]; Ellyn M. Angelotti, Twibel Law: What Defamation and Its Remedies Look Like in the Age of Twitter, 13 J High Tech L 430, 433 [2013] ["The informal nature of conversation on Twitter tends to encourage people to talk more freely about others, including the spreading of rumors and potential falsehoods."]).
Based on that, the New York court dismissed Jacobus' suit against Trump.
Stormy Daniels' suit against Trump will face a similar challenge. The federal court will be applying the Federal Rules of Civil Procedure for procedural matters, but applying New York's substantive law of defamation. Here's a footnote if you want to know why, because it's dull.1 Trump's lawyers will almost certainly file a motion to dismiss the case. The question before the federal judge will be whether, if all facts (as opposed to conclusions) in the complaint are taken as true, the complaint shows defamation under New York law. The President's lawyers will have a strong argument, boosted by the Jacobus case, that it does not, because his tweet can't be taken as a factual allegation. The context is (a) this President and (b) Twitter. Twitter in general, and this President on Twitter in particular, are widely understood by anyone familiar with the context to be full of bombast and truculent rhetoric, not reliable fact. This impression is enhanced by the figurative language ("con job") in the tweet and the way it was combined with an overtly partisan and opinion-based swipe at the news media. In short, the President's lawyers have a very credible chance of getting this thrown out on the basis that Trump's tweet can only be taken as trash talk, not as a literal provable statement that Daniels is lying.
Yes, that would make two courts that have found as a matter of law that the statements of the President of the United States cannot be taken factually or literally, but should be understood as bluster.
That's not the only problem with the case, but it's the biggest one and the one most likely to help the President at the motion to dismiss stage. I also note that there are issues with the allegations about President Trump's knowledge. Because Stormy Daniels is a public figure, to prove defamation she has to show that a false statement about her was made with "actual malice" — which in defamation context means with knowledge that it was false or reckless disregard about its falsity. She hedges her bets on that:
Given the circumstances surrounding the threatening incident in 20II, namely that Ms. Clifford had not at the time gone public with her story and very few people kmew of the possible In Touch story, it is reasonable to infer that the person who threatened Ms. Clifford could have only been acting directly or indirectly on behalf of Mr. Trump and/or Mr. Cohen. Thus, Mr. Trump may have actual knowledge of the incident and ofthe falsity of his statement.
Alternately, if Mr. Trump in fact had no direct or indirect connection to the incident, then Mr. Trump necessarily acted in reckless disregard of the truth or falsity of his statement because he would have no way of knowing one way or the other as to whether the incident occurred. Nevertheless, and in spite of this, he chose to defame and disparage Ms. Clifford to his audience of over 50 million Twitter followers and many more worldwide.
If President Trump knew the statement was false, that's actual malice. But the second paragraph doesn't describe actual malice. Actual malice requires reckless disregard of the truth, which means more than just extreme carelessness. Most courts — including New York courts — say that it requires that the defendant had serious doubts about the truth of the statement but made it anyway. It would be difficult, to put it mildly, to prove that President Trump entertains serious doubts about the things he says or tweets, or is capable of such doubt. Stormy Daniels' allegation of reckless disregard is insufficient as a matter of law.
New York doesn't have an anti-SLAPP statute — a statute providing a procedural vehicle to get rid of a bogus defamation case and recover attorneys fees, which is more powerful and flexible than a motion to dismiss. But here's the trick, and I don't know if Stormy Daniels' lawyers know it. Stormy Daniels is from Texas. Texas has a strong anti-SLAPP statute. And some federal courts will apply the anti-SLAPP statute of your state of origin if you file a defamation claim in federal court elsewhere. My friend and First Amendment badass colleague Marc Randazza pointed this out to me — in fact, Marc says, federal courts in the Second Circuit (which includes the court where Daniels filed this case) have applied anti-SLAPP laws from the home states of plaintiffs to cases there. That would give President Trump's lawyers a powerful tool, even more powerful than a motion to dismiss, to get rid of the case — and even to recover attorney fees.
This is not a strong defamation case; it's a very weak one, substantively and procedurally. Michael Avenatti isn't dumb, and it's possible his real strategy is less the ultimate success of the case but the additional vector of pressure it puts on Team Trump — it's one more place to drag Trump into court, one more place where she could conceivably seek discovery from Trump and Michael Cohen (who would presumably have to take the Fifth), one more move on the board.
As a federal criminal law and First Amendment practitioner, this is an amazing time to be alive.
Copyright 2017 by the named Popehat author.
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