So why stop?

On Wednesday, the Trump campaign filed a defamation complaint in the New York State Supreme Court against the New York Times over an opinion piece from March 2019. Titled “The Real Trump-Russia Quid Pro Quo,” the piece was published three days after Attorney General William P. Barr issued his summary of the Mueller report. Barr wrote that former special counsel Robert S. Mueller III’s investigation “did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election.”

AD

AD

In the essay, Max Frankel — who served as executive editor of the Times from 1986 to 1994 — appeared to be playing off Barr’s summary. Here’s the lead of the piece:

Collusion — or a lack of it — turns out to have been the rhetorical trap that ensnared President Trump’s pursuers. There was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy because they had an overarching deal: the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy, starting with relief from the Obama administration’s burdensome economic sanctions. The Trumpites knew about the quid and held out the prospect of the quo.

Based on such language, the Trump campaign is claiming damages in the millions of dollars. The allegations, argues the complaint, are false, as proven by the Mueller report and “many other published sources.” It continues: “Among other things, there was no ‘deal,’ and no ‘quid pro quo,’ between the Campaign or anyone affiliated with it, and Vladimir Putin or the Russian government.”

It’s tough to defame a presidential campaign, and the complaint is clear-eyed on this matter. The document concedes that for the purposes of the law, the Trump campaign is a public figure — meaning that it needs to prove the Times wrote false things with knowledge of their falsity or with “reckless disregard” of their truthfulness. That is the so-called actual malice standard.

AD

AD

And in its attempt to meet that standard, the Trump campaign complaint concedes that the Times, in fact, is not corrupt in the least. To substantiate the point that the newspaper knew the falsity of its opinion piece, the suit argues that the pages of the Times provided plenty of real, actual news: “Extensive information, including stories in The Times published before the Defamatory Article, established that, at most, there had been isolated contacts between individual Russians and some persons associated with the Campaign, which did not result in any ‘deal’ or ‘quid pro quo,’ ” reads the complaint. It goes on to cite four New York Times stories that pretty well established that the famous June 2016 Trump Tower meeting between Trump campaign officials, a Russian lawyer and others produced nothing of value to the campaign.

By any honest — or even lazy — reading of the Frankel opinion piece, it’s clear that the author wasn’t alleging any acts of specific collusion or coordination between the Trump campaign and Russia. It was an “overarching deal,” not an illegal conspiracy. The freedom to write just such material without losing millions of dollars in a jury verdict is precisely why the First Amendment grants a wide berth for opinion and commentary on matters of public interest. Citing the landmark 1964 case New York Times Co. v. Sullivan, University of Georgia professor Jonathan Peters tweeted:

The Trump campaign’s complaint comes off the desk of Charles Harder, the attorney who represented Hulk Hogan (whose real name is Terry Bollea) in the privacy case that resulted in the eventual bankruptcy of Gawker Media. He sent a preposterous threat letter to CNN last fall.

AD

AD

First Amendment attorney Ted Boutrous provided an opinion on the complaint’s merits:

The New York Times has issued this statement: “The Trump campaign has turned to the courts to try to punish an opinion writer for having an opinion they find unacceptable. Fortunately, the law protects the right of Americans to express their judgments and conclusions, especially about events of public importance. We look forward to vindicating that right in this case.” The Erik Wemple Blog asked the Times to address the suit’s claim that the newspaper didn’t contact the campaign prior to publication — evidence of actual malice, according to the complaint. “It was an opinion piece on reported news, not reporting on new facts. We wouldn’t expect the writer to seek comment from the campaign (or Putin, for that matter),” responded Times spokeswoman Eileen Murphy.

By the recollection of the Erik Wemple Blog, the Frankel piece didn’t cause an uproar in the public square. Frankel’s was among many voices addressing Trump and his inexplicable amity toward Russia. Yet the complaint suggests grand impact: “The Defamatory Article has forced, and will continue to force, the Campaign to expend funds on corrective advertisements and to otherwise publicize the fact that the Campaign did not collude with, have a deal with, or have a ‘quid pro quo’ with Russia regarding the 2016 election. The Campaign has been damaged in an amount to be proven at trial.”

AD

AD

If the Trump campaign were really so concerned about this particular opinion piece, surely it requested a correction or retraction at the time, right? “We never saw any demand for a correction or retraction,” Murphy noted in an email.