See who in court? Trump’s empty libel threats target Woodward

Faced with what promises to be the most detailed, damning and authoritative account of his presidency to date, Bob Woodward’s book “Fear: Trump in the White House,” the president has resorted to one of his favorite tactics: an implied threat to bring a libel suit over reporting he doesn’t like.

He fired off the threat Wednesday morning on Twitter:

The stories President Trump is denying include accounts in Woodward’s book of his chief of staff, John Kelly, calling Trump an “idiot,” his defense secretary, James Mattis, likening him to “a fifth or sixth grader,” and Trump himself referring to Attorney General Jeff Sessions as a “dumb Southerner” and “mentally retarded.”

Kelly and Mattis have disputed the accuracy of those quotes, and Trump himself denied he used those words about Sessions, adding that “being a Southerner is a GREAT thing.” Trump has publicly attacked Sessions for recusing himself from the Russia probe, although not with those words.

Trump has previously denied referring to Sessions as “Mr. Magoo.”

Trump’s understanding of libel law, like his grasp of judicial independence, is more than a little shaky. To start with, “Washington politicians” aren’t in a position to help Trump out even if they wanted to; libel law is generally a state matter. Moreover, under the 1964 Supreme Court decision in New York Times Co. v. Sullivan, a public figure — and there is no bigger public figure than the president — has to prove “actual malice” to win a libel suit, defined as publishing something the author knew to be false, or with “reckless disregard” for its truth. The unanimous opinion by Justice William Brennan was based on an interpretation of the First Amendment and is considered a bedrock legal principal that even a Supreme Court engineered to Trump’s specifications might be reluctant to tamper with.

But since long before he entered politics, Trump has liked to bluster about suing his detractors, counting on intimidating them with the prospect of going up against a self-proclaimed billionaire. He explicitly endorsed this tactic in a tweet in 2015:

In October 2016, Trump vowed to sue more than a dozen women who had accused him of unwanted sexual advances. “All of these liars will be sued once the election is over,” Trump said. “I look so forward to doing that.” Nothing came of that threat, or most of the others he made before or since. Around the same time, his former lawyer Marc Kasowitz promised “prompt initiation of appropriate legal action” against the New York Times for publishing an analysis of leaked pages from his 1995 tax returns. In 2015, his former lawyer Michael Cohen famously threatened a reporter, in an expletive-laced rant, to “take you for every penny you still don’t have” over an assertion that Trump’s first wife, Ivana, had charged him with raping her when she filed for divorce. (She later retracted the charge.)

In 2013 Trump filed, and later withdrew, a suit against Bill Maher for failing to live up to an offer to donate $5 million to charity if Trump provided a copy of his birth certificate proving that he wasn’t sired by an orangutan. (In a letter to Maher before filing the lawsuit, Trump’s lawyer wrote, “Attached hereto is a copy of Mr. Trump’s birth certificate, demonstrating that he is the son of Fred Trump, not an orangutan.”) Earlier this year, Trump’s lawyers tried unsuccessfully to stop publication of Michael Wolff’s White House expose “Fire and Fury: Inside the Trump White House.” Just last month he sued his former protégé Omarosa Manigault Newman over her book, “Unhinged: An Insider’s Account of the Trump White House.”

He sued author Tim O’Brien for $5 billion over his 2005 book “TrumpNation,” which made the one charge Trump cannot countenance: that he’s not actually a billionaire. After Trump gave a disastrous deposition in which his testimony was contradicted by documents dozens of times, the suit was dismissed, although Trump pronounced himself satisfied with the result because it cost O’Brien “a lot of legal fees.” (O’Brien says his publisher and an insurance company actually paid.)

As a candidate, Trump promised to “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.” As president, he called libel law “a sham and a disgrace” and urged changes “so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts.”

He might want to think twice about that plan, though, since he is currently a defendant in a libel suit brought by one of the women he had threatened to sue before the election. Summer Zervos, a former contestant on “The Apprentice,” said Trump had kissed and groped her without her consent. Trump not only denied it but denounced her as a liar. This constituted “brutalizing of her a second time,” according to her suit, which a judge recently allowed to proceed, leaving open the unwelcome possibility that Trump might be called to testify under oath about the alleged encounter.

As for the Woodward book, which hasn’t even been published yet, Trump’s response has been mainly in the form of tweets. If he sues Woodward, he will face the almost insurmountable burden of showing that one of the most honored and respected journalists in America today wrote a book with “reckless disregard” of the truth. Woodward won’t even have to show that, for example, Trump really does have the mentality of a fifth-grader, only that he was diligent in reporting that Mattis said as much.

Given that the standard fifth-grade social studies curriculum extensively covers 19th century American history, and that Trump apparently once didn’t know who Frederick Douglass was, if Mattis really did say that, he might have been giving his boss the benefit of the doubt.

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