The message: So sue us.
The Times signaled that it would fight any lawsuit on a number of fronts, including the idea that the story played a role in damaging his reputation.
“The essence of a libel claim, of course, is the protection of one’s reputation,” the paper’s legal counsel David McCraw wrote to one of Trump’s attorney’s in a letter on Thursday. “Mr. Trump has bragged about his non-consensual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a ‘piece of ass.’ Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. 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.”
Trump is a public figure, and to succeed in a libel case, he would have to prove that the Times knew the story was false, but published it anyway, or that they had reckless disregard for the truth. It’s a high standard for celebrities and public officials to clear before they can prevail in a libel suit, but it’s one that has governed defamation law for more than 50 years.
McCraw also defended the decision to publish the story, noting that Trump himself talked about the issue of sexual harassment and sexual assault at Sunday’s presidential debate. He also wrote that the reporters “diligently worked to confirm the women’s accounts, and included Trump’s ‘forceful denial.'”
“We did what the law allows: We published newsworthy information about a subject of deep public concern,” he wrote. “If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”
One of Trump’s attorneys, Marc Kasowitz, sent a letter late Wednesday to New York Times Editor-in-Chief Dean Baquet, threatening litigation if the story is not retracted.
On the campaign trail, Trump called the Times story and others that have surfaced “false smears.” he suggested that the campaign would present evidence at some point to counter the claims. He also said that the “pile-on” was part of a collusion between the media, major corporations and the Clinton campaign.
“The phony story in the failing @nytimes is a TOTAL FABRICATION. Written by same people as last discredited story on women. WATCH!” he wrote on Twitter.
The phony story in the failing @nytimes is a TOTAL FABRICATION. Written by same people as last discredited story on women. WATCH!
— Donald J. Trump (@realDonaldTrump) October 13, 2016
Trump also took aim at a story that a People writer published on Wednesday, claiming that he forced himself on her as she was reporting a piece in 2005 at his Palm Beach estate.
“Why didn’t the writer of the 12-year-old article in People Magazine mention the ‘incident’ in her story. Because it did not happen!” he wrote on Twitter.
Trump has previously threatened to sue the Times over a story published in May that examined his history toward women.
It’d be unusual for a presidential candidate to file a lawsuit over their press coverage, but it is not unprecedented.
After his 1964 campaign ended, Barry Goldwater filed a libel suit against Fact magazine over a story it published, in which the editors polled 12,356 psychiatrists to support a thesis that Goldwater was mentally ill. Goldwater won his suit — and the Supreme Court refused to take the case on appeal.
Some legal experts were doubtful that Trump would get very far in a case against the Times. Ted Boutrous, First Amendment lawyer at Gibson, Dunn & Crutcher, tweeted that such a lawsuit would be “frivolous, sanctionable, and flatly contrary to the rule of law and our democratic system.”
— Ted Boutrous (@BoutrousTed) October 13, 2016
“This is a stunt meant to chill aggressive reporting — precisely the sort of behavior that led the Supreme Court to erect strong constitutional protections against libel claims, like the ‘actual malice’ standard,” he told Law.com.
The Committee to Protect Journalists on Thursday issued a statement condemning Trump not just for the libel threats, but other instances where it says he has tried to restrict press access. They called Trump “a threat to press freedom in the United States, but the consequences for the rights of journalists around the world could be far more serious.”
Update: People Editor in Chief Jess Cagle issued a response to Trump.
The writer, Natasha Stoynoff, “is a remarkable, ethical, honest and patriotic woman, and she has shared her story of being physically attacked by Donald Trump in 2005 because she felt it was her duty to make the public aware,” Cagle wrote.
“To assign any other motive is a disgusting, pathetic attempt to victimize her again. We stand steadfastly by her, and are proud to publish her clear, credible account of what happened.”