The New York Times published a story Wednesday based on the accounts of two women who came forward with claims that Republican presidential nominee Donald Trump had “touched them inappropriately.” Hours later, lawyers acting on Trump’s behalf sent the Times a letter demanding a “full and immediate retraction and apology,” lest Trump pursue “all available actions and remedies” against the newspaper. (Similar legal threats were sent to the Palm Beach Post for a similar story.)
Does this mean that The New York Times has something to worry about? Well, you may have noticed there has been no apology or retraction from the Times since the threat was made, so that’s your first sign. But the answer is no: Donald Trump is not going to follow through on this threat. Suing the Gray Lady over this would be a phenomenally stupid idea ― perhaps too stupid even for a man who thought it would be a good idea to sell meat through The Sharper Image.
That doesn’t mean these threats don’t have a purpose. It also doesn’t mean they aren’t threats.
But The New York Times is probably safe from harm and will likely never spend a moment in a courtroom over this. Here are some simple reasons why.
1. The case is bullshit and Trump’s lawyers all but admit this.
If you read the demand letter sent to the Times’ executive editor, Dean Baquet, three things should jump out at you immediately. First, there are no specifics offered, no citations of error, no facts disputed ― just a lot of vague insistences plumped up by legal bravado.
Second, there are no timelines attached to these demands ― no deadlines for when the retraction needs to happen or when the apology needs to be received.
Third, the demands that Trump’s lawyers are making, which include “cease any further publication of this article” and “remove it from your website,” are empty demands. They can’t possibly provide a remedy for Trump’s claim. This news is out. The bell cannot be unrung. And Trump’s attorneys almost certainly understand this.
2. Never invite journalists to a discovery party.
If Trump were to actually bring litigation against The New York Times, the paper could pursue discovery ― the pretrial procedure by which a party to a lawsuit is allowed to obtain material that could reasonably be considered germane and admissible evidence. This is not the sort of thing to which a presidential candidate who has a history of, say, assiduously hiding his tax returns would want to expose himself.
On the other hand, the thought of pursuing discovery in this case probably has many Times reporters thinking, “I wish a mofeaux would,” and dreaming of the opportunity to get neck-deep in Trumpiana. (When football team owner Dan Snyder sued the Washington City Paper for defamation, the paper essentially re-reported the story Snyder was suing over and packed it into pretrial filings. Sad!)
3. Trump rarely makes good on his lawsuit threats.
The onetime reality TV host is always yapping about how he’ll take his many detractors to court, but this is, far more often than not, an empty threat. As USA Today’s Nick Penzenstadler reported earlier this year, “an analysis of about 4,000 lawsuits filed by and against Trump and his companies shows that he rarely follows through with lawsuits over other people’s words.” Moreover, Trump has won “only one such case, and the ultimate disposition of that is in dispute.” Not good!
However! As Penzenstadler goes on to point out:
The threats can be effective. Even the possibility of a lawsuit by a rich, powerful opponent raises the specter of years of expensive and time-consuming litigation. “Plainly, the guy uses lawsuits as a tool of intimidation and doesn’t care how much he clogs the courts with nonsense,” [comedian and target of Trump litigation Bill] Maher said in an interview.
So, what is this really about?
1. It checks the “you have to address this aggressively” box.
Trump obviously cannot let these stories in the Times and elsewhere go without a response. By bolstering his response with the threat of litigation, he can use his lawyers’ letter as an artificial backbone. That he’s threatening to take the Times to court over this matter speaks for itself, as far as “optics” go.
2. It gives his campaign a compelling story to tell.
Trump very quickly made his lawsuit threat part of his campaign schtick. He’s already hit the rally circuit, telling his supporters that the Times was derelict in its journalistic duties, decrying all these reports as fiction, and characterizing the paper’s decision to run the story as both politically motivated and a product of financial desperation. All the while, he can remind his fans that he’s threatened the Times with legal action.
If it comes to that, he can actually go so far as to file a lawsuit ― knowing full well there are only a few weeks left before Election Day, after which he can withdraw his suit without consequence.
In the meantime, he can go out on the stump, decry the Times, slander the women and pretend that he is seriously involved in litigation. I’m not sure how many people at Trump rallies can be described as “wavering,” but if there are any, this story keeps them in his camp.
3. This is really about chilling effects.
The true purpose of threatening legal action here is simply to stem the flood of accusations that have burst onto the scene over the past week and discourage other journalists from pursuing these stories by suggesting there’s a high price to be paid in time and money. This isn’t going to scare off The New York Times, but those without that paper’s good public standing and deep pockets may have legitimate cause to worry, even if their facts are iron-clad and indisputable.
The media isn’t the only party to whom Trump is trying to send a message. He’s also mounting an implicit effort to intimidate other women who might step forward and coupling his discussion of the legal threat levied at the Times with further smears of the women making the claims. In addition to raising the specter of legal costs, he’s letting any future accusers know that he’ll dole out as much public humiliation as he can on the campaign trail.
So, no, you needn’t worry about The New York Times. It’s going to be fine. The likelihood of any legal action proceeding too far past this complaint period (in which Trump, as the nominal plaintiff, can benefit from some PR advantages) to the pretrial period (in which the advantage would shift to the defendant) is very low, and I’d doubt that anyone at the paper is sweating it.
This isn’t about Trump’s desire to sincerely defend himself from being defamed. This is about harassing women and shaming those perceived as weak ― you know, all the things that Trump truly loves.
Jason Linkins edits “Eat The Press” for The Huffington Post and co-hosts the HuffPost Politics podcast “So, That Happened.” Subscribe here, and listen to the latest episode below.
Editor’s note: Donald Trump regularly incites political violence and is a serial liar, rampant xenophobe, racist, misogynist and birther who has repeatedly pledged to ban all Muslims — 1.6 billion members of an entire religion — from entering the U.S.