This post was inevitable. I’ve been writing about defamation law on this blog for years. Back in July 2010, for example, I explained why Mark Zuckerberg wouldn’t sue the makers of The Social Network, and he didn’t. In 2012, I said Michael Mann’s claim against the National Review was “non-frivolous,” but that it was a difficult question as to whether it could proceed – and three years later the Washington Post said it seemed “the court may be having some difficulty” deciding it, and the case is still stuck. Earlier this year, I spelled out the legal issues in the Hulk Hogan v. Gawker trial, based on the lawyers’ own briefs.
Now Donald Trump, faced with an onslaught of sexual assault allegations — essentially alleging that he committed the sexually aggressive behavior he bragged about in the 2005 Access Hollywood tape — has started threatening to sue for defamation. Funny coincidence: years ago, I met New York Times Assistant General Counsel David McCraw, who wrote the paper’s response to Trump. He told me the New York Times hasn’t paid a dime on a defamation case in fifty years, and they’re not going to start any time soon. I’m pretty sure that is still true today and will be true for years to come.
When a lawyer writes a letter for public consumption, it looks like Donald’s letter. When a lawyer writes a letter as a prelude to a lawsuit, it looks like Melania’s letter. Donald Trump hasn’t sued a newspaper for libel in thirty years, but Melania did just last month. As I’ll explain below, it looks like Donald Trump is just blowing smoke for show – perhaps he’ll file a lawsuit now then dismiss it after the election – but Melania Trump’s lawyer, the same lawyer who represented Hulk Hogan against Gawker, is using the same strategy he did in that case to position her for a similar outcome.