Donald Trump’s threat to sue the New York Times for defamation, explained by legal experts

Donald and Melania Trump are threatening legal action against the New York Times and People magazine for stories exposing Donald Trump’s long alleged history with sexual assault — except it seems their lawyers don’t seem to fully grasp the concept of defamation law.

Trump’s lawyers are threatening to sue the Times for libel if they don’t retract a recent bombshell report in which two women accused the Republican nominee of sexual assault, calling the reporting “reckless” and “defamatory.”

The New York Times has said no.

Instead, in a scathing response to Trump’s lawyers, the paper made it clear that when it comes to the treatment of women, Trump is libel-proof: “Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself,” citing the leaked audiotape in which Trump bragged about kissing women without their consent, his past comments about walking into female beauty pageant contestants’ dressing rooms while the women were changing, and his lewd comments on his own daughter.

But Trump doesn’t seem to be backing down. He insists the stories are “fabricated.” In their letter to the Times, Trump’s lawyers said they would be left with “no option but to pursue all available actions and remedies.” In other words, while the letter itself is not a declaration of legal action, his lawyers are threatening a lawsuit over libel.

Melania’s legal team, meanwhile, took issue with a detail in a much larger first-person piece in People magazine by a writer who says Trump assaulted her while on assignment years ago.

The definition of libel is straightforward: It’s a written, published communication of a false statement that harms the reputation of the subject.

But suing for libel in a court of law is a different matter. There are many hurdles to clear, and it becomes even more complicated when the plaintiff — like Trump — is a public figure. To explain what Trump is doing and what he would need to prove a winning case, I called up three media law experts to parse what it actually means for Donald Trump to wage a defamation suit against the New York Times.

“This is typical blowhard Trump bullying, and there is not much to worry about in this letter from Trump,” Susan Seager, a media law expert who served as counsel for Fox Entertainment Group and has practiced defamation law since the 1990s, said plainly.

All three media law experts I spoke to agreed: Trump, as a public figure suing for libel and defamation, probably doesn’t have much of a leg to stand on.

Put simply, Trump is saying the allegations against him published in the New York Times are a “TOTAL FABRICATION.” Since his lawyers sent the Times this letter of retraction, Trump and his surrogates have given several vague defenses, even implying that one of the women was not attractive enough for Trump to assault her.

His team is also questioning the timing of the story’s publication, arguing the report “is nothing more than a politically-motivated effort to defeat Mr. Trump’s candidacy.”

“That is why you apparently performed an entirely inadequate investigation to test the veracity of these false and malicious allegations, including why these two individuals waited, in one case, 11 years, and, in another case, more than three decades, before deciding to come forward with these false and defamatory statements,” the letter says.

Notably, his lawyers called the Times article “libel per se,” which means that it is false and defamatory in nature. “Statements that are ‘libel per se’ include accusing someone of committing a crime, or being incompetent in his job, among other things,” Jane Kirtley, a University of Minnesota media law expert, explains. “The plaintiff would not need to prove monetary injury to bring the lawsuit.”

In other words, Trump wouldn’t have to prove actual damages — psychological, monetary, or otherwise. “It’s kind of like saying someone robbed a bank — that’s libel per se because you are accusing someone of something so universally understood to be damaging that Trump doesn’t have to prove damages,” Seager said.

Even so, for Trump, proving the report is false, spiteful, and careless, legally speaking — as the letter claims — is not enough to win a defamation case in courts. He has to show reckless disregard for the truth — that the New York Times knew the stories were false and published them anyway.

“The New York Times is in a very strong position” for this reason, Kirtley says. The crux of the Times’s argument is that Trump has suggested he has does these things; he has bragged about sexually assaulting women on multiple occasions. The Times was “confirming” his own accounts.

The letter from Trump’s lawyers was called laughable and ridiculous for its lack of legal bite. But demanding a retraction or apology is pretty standard in libel cases. It happens all the time, and although not required by New York state law, some states even mandate that the plaintiff — in this case, Trump — send a letter of retraction if he intends to pursue further legal action.

“Basically it is a meaningless threat, legally speaking,” University of Wisconsin Madison media law expert Robert Drechsel said. At times, that threat is enough to make media organizations take down the content in question.

Possibly laughable, however, is that the letter never gave a declarative statement that Trump never did these things (although it called them false), it never offered language for a retraction (which is usually what these letters do), and, most notably, it used language that seemingly misunderstood how defamation suits work when the plaintiff is a public figure — like a presidential candidate.

Litigating defamation cases for public officials or public figures is different than for private individuals; it’s tougher.

This is where the law gets a little confusing, so much so that even lawyers and courts mess this up sometimes, Seager points out.

“I’m cynical and jaundiced because I have seen a lot of letters like this where lawyers claiming to be suing a defamation case don’t really understand defamation law,” Seager said. “It may be typical, but it is ‘sad,’ to quote Donald Trump.”

The upshot is that it’s a lot harder for a public figure to claim defamation, because not only would Trump have to prove these allegations are false, but he would also have to prove that they were done with “actual malice,” meaning that the New York Times published the article knowing it was false, or with reckless disregard for the truth. He isn’t doing that.

In the letter, Trump’s lawyers used similar language to this: They called the report “reckless,” called the investigation “inadequate,” and said the allegations were “false and malicious.” “Actual malice” and “reckless disregard for the truth” in legal terms, however, are fundamentally different things than what Trump’s lawyers said.

This all goes back to a 1964 US Supreme Court decision, New York Times v. Sullivan, that decided libelous statements about public officials — like Donald Trump — are protected by the law as long as the news organization doesn’t publish said statements knowing they were false.

“The idea is that if the press is afraid to write about public officials or figures for fear of being sued for crippling libel damages, political debate will be chilled,” Kirtley said.

So even if the Times reporters were careless in the reporting (which it doesn’t look like they were, as they corroborated the stories with multiple people), that does not qualify as “reckless disregard for the truth.” Even if the New York Times did want to mire Trump’s name maliciously in negative headlines (even though there is a strong argument that this was newsworthy), that is different from publishing the report knowing it is false.

“Whether or not the Times had a motive to undermine Trump’s candidacy is legally irrelevant,” Kirtley tells me. “Of course, Trump could try to provide evidence of ill will as a way to show that the Times was motivated to fabricate the allegations or to fail to adequately investigate them, but again, in itself, ordinary malice is not ‘actual malice.’”

There are a lot of things working against Trump here. He is public official who must prove the Times acted with actual malice within the law.

Say Trump — knowing all this — is still headstrong about suing the Times for defamation. This could lead to what is called a period of discovery — which, just as it sounds, is a process in which both parties try to gather as much information as possible to prove their side. This could be more damaging for Trump in the long run, assuming there are more tapes like the one that has already leaked out there.

The discovery process ranges from communications between reporters and editors and the victims to any documentation, video, or audio evidence.

“There would be depositions of the reporters and the editor, and of these women, but also of Trump, and he would have to prove by clear and convincing evidence that these allegations would be false, which I don’t know how he would do that,” Seager explained.

But even before discovery, Seager says the New York Times could file a motion to dismiss, pointing out that Trump hasn’t provided any sufficient allegations in the complaint — the letter to the Times — to show he has evidence that they published the story knowing it was false. Remember, the letter didn’t actually state why these statements were false, either.

In short, “it’s a very time-consuming and very expensive” undertaking for Trump, Drechsel says, and likely unsuccessful.

“Anyone can sue anyone else over virtually anything, but that doesn’t mean they will prevail,” Kirtley said. “It is very difficult for public figures to prevail in libel cases — with good reason, in my opinion — which is probably the reason Trump has threatened to change the libel laws, which, of course, he cannot do singlehandedly.”

Trump has been the plaintiff in six speech-related cases, ranging from lawsuits against labor unions and Bill Maher to critics of Trump University. Five were dismissed before trial; he won the other only because the defendant failed to show up at arbitration.

His biggest lawsuit was in 2006, in which he sued author Timothy O’Brien for writing that Trump was not a billionaire. Seager, who has closely reviewed all six of these suits, wrote of the O’Brien case for the Daily Beast:

Trump’s greediest lawsuit was his $5-billion libel lawsuit filed in 2006 against Timothy O’Brien for saying in his book TrumpNation, The Art of Being The Donald, that Trump was at best worth $250 million, not the billions Trump claimed.

A Jersey court dismissed the case because Trump failed to prove O’Brien had “any actual doubts” about the accuracy of his book and Trump lacked any “reliable” evidence that he was worth billions, admitting his net worth is “based on [his] … own feelings.”

Trump has an affinity for waging lawsuits — or, rather, threatening to wage them. But according to an investigation from USA Today, which studied more than 4,000 of Trump’s lawsuits (yes, that is a really big number of lawsuits), he’s rarely followed through when the suit involved journalists.

He has a similar history when it comes to libel cases.

“Donald Trump has a horrible record on libel cases,” Seager said. “He bluffs a lot. He threatens a lot, but when he sues, he mostly loses.”