All the President's Lawsuits

Here's a context in which Donald Trump doesn't mind being a loser.

One of the exceptional things about Donald Trump, both as a presidential candidate and officeholder, is his litigiousness. In recent years, Trump has sued CNN, The New York Times, the Wall Street Journal, ABC, and CBS. He’s even punched down at the Des Moines Register, suing the newspaper for reporting the results of an election poll that had him losing in Iowa to Kamala Harris (he sued the paper - and the pollster - for “consumer fraud” and “election interference”). And Trump has promised more lawsuits to, as he put it in a mafia boss register, “straighten out the press.”

Trump is generally big on “winning.” But in this particular context he doesn’t mind losing (good thing, too, since he nearly always loses in lawsuits). Courts have even ordered Trump to pay defendants hundreds of thousands of dollars for filing frivolous and harassing lawsuits. The civil actions he files, whether for defamation, “consumer fraud,” or “election interference,” aren’t about restoring Trump’s reputation (he won the election, after all, despite incorrect polling and allegedly altered Kamala Harris interviews), preventing consumer fraud, or preserving the integrity of elections. Rather, Trump’s civil actions serve political purposes.

First, the lawsuits burnish Trump’s reputation among his supporters as a crusader against the “fake” and “corrupt” media, which he claims continue to conspire against him. His lawyers draft complaints that are heavy on rhetoric and extremely light on facts and law. Whatever a judge might make of the complaints, Trump knows his supporters will view them as blows against the “enemy of the people.” If he wins, Trump declares a victory over the “fake news media.” If he loses . . . well, you probably guessed: Trump declares victory because he forced the media to expend resources defending itself (assuming it does indeed defend itself).

Second, Trump hopes his lawsuits will cow media outlets into self-censoring in ways that improve his coverage or at least suppress negative stories. Even frivolous lawsuits can be harassing, intimidating, and exhausting. Southern officials understood this, which is why they sued media defendants large and small for a combined total of $300 million in damages (a few billion in today’s dollars, or a fraction of Trump’s usual demand) for reporting on their misdeeds during the Civil Rights Era. Trump’s lawsuits are not (yet) part of some broader agenda or campaign, but they not only ask for tens of billions of dollars in damages but now feature a sitting President as plaintiff. In addition to the ordinary factors that play into defending against civil lawsuits media defendants must factor in both the extraordinary size of the damage claim and the risk that a jury, if it comes to that, will rule in the President’s favor despite the weaknesses of his claims.

Third, as President, Trump has combined lawsuits and federal agency proceedings to squeeze media corporations and bring them to heel. One of the signature goals of Trump 2.0 is to target civic institutions including law firms, universities, and the press to prevent them from checking his power. As President, Trump can use civil lawsuits in combination with agency proceedings, as he did against Paramount and Skydance, dangling the federal government’s approval of their merger with one hand while suing them for damages with the other. President Trump has been remarkably - and disturbingly - successful at this. Despite the glaring weaknesses of his legal claims, he’s extracted sizeable settlements from ABC and Paramount and hopes to do the same against the Wall Street Journal in his $20billion lawsuit against Rupert Murdoch’s paper.

Fourth, and finally, as recent events demonstrate Trump hopes his lawsuits against the media will distract people from negative news cycles and scandals, such as his cozy relationship with a deceased child sex trafficker. By crusading against the “crooked” press, he hopes to change the public narrative in his favor.

It remains to be seen whether Trump’s streak of big settlements has run its course. Suing the Wall Street Journal, which is not owned or operated by “radical left lunatics,” is hardly the same as suing CNN. There is some evidence that right-wing podcasters and influential voices in the manosphere are willing to play along as if the reporting on Epstein and Trump is just another example of the media “witch hunt.” But it’s not clear that narrative will hold, especially if the Journal puts its factual card (or more of its hand) on the table.

Trump has gone all in early, urging a court to order Rupert Murdoch to sit for a deposition in the next 15 days owing to his age and health. Putting aside the pot calling out the kettle, Trump should consider that even as President he too is subject to being deposed under oath. (Trump can thank Bill Clinton for that, since it was then-President Clinton who tried, but failed, to convince the Supreme Court to delay the Paula Jones civil lawsuit, which centered on his misconduct years earlier, until his term ended.)

Indeed, proceeding straight to discovery may be precisely what the Journal and Murdoch want, or should want, since it counters another common Trump tactic - delay, delay, delay - that allows for bogus “settlement negotiations” (shakedowns) to occur. Taking Trump’s deposition early may be the best defense, given his general unwillingness to make any statements under oath. To be sure, Trump can request that his deposition be postponed owing to the pressing business of his 24/7 office (playing golf in Scotland, for example, or posting about Beyonce and Rosie O’Donnell on social media), but he’s playing a dangerous game. Far from distracting anyone, a sitting president hauled into court to answer questions about his relationship with a notorious sexual predator may play less as a “witch hunt” and more like the deposition of a witch.