Thus was lost the opportunity to press Trump, under oath, about all the Russia stuff.

But wait! A fresh chance may be lurking in recent libel suits filed by the Trump campaign against the New York Times and The Washington Post for opinion pieces relating to Trump-Russia, as well as to North Korea. As noted here and here, the complaints are shoddy frivolities that seek to curtail fair and crucial discussion of matters of public consequence. Accordingly, they’re sure to disappear after a couple of righteous motions to dismiss. (Disclosure: I work for The Post’s Opinions section.)

A more investigative option beckons, however. Instead of seeking a quick dismissal of the lawsuits, the newspapers — or either one of them individually — could choose to dig in and proceed straight to the discovery stage of the litigation. Such a move would require the newspapers to turn over emails and submit to depositions about how they commissioned and edited the columns in question. Since discovery is a two-way street, it would also require the Trump campaign to do likewise: to open its aides, past and present, to scrutiny regarding the topics at hand.

AD

AD

Call the campaign’s bluff, in other words.

We’re talking about a fantasy scenario here. The legal arms of newspapers exist to secure the dismissal, not the prolongation, of libel claims. Though they assist their newsrooms with Freedom of Information Act litigation and other efforts to secure documents, they are not captives of the news operations. And what sane news organization invites plaintiffs’ lawyers to muck around in their deliberations? When Times editorial page editor James Bennet, for example, answered questions in a preliminary stage of Sarah Palin’s libel suit, he exposed a rickety editing process.

“Whenever lawyers advise clients whether or not to file a libel lawsuit, one of the things that lawyers raise is the fact that filing opens them up to broad discovery obligations about the allegedly defamatory facts at issue,” says Jeffrey J. Pyle, an attorney with Prince Lobel Tye LLP.

AD

AD

The premise of civil discovery is that both sides are entitled to the documents and information in the other’s possession that shed light on the merits of the case (with narrow exceptions such as privileged communications). In a libel case — where the plaintiff has voluntarily gone to court to accuse the defendant of making false and defamatory statements — this means, naturally, that the plaintiff is fair game for depositions, document requests and the like to test claims of falsity.

Oscar Wilde learned all about this boomerang effect in the 1890s, when he pursued a criminal libel case against the Marquess of Queensberry, who’d alleged on a calling card that the writer was a “somdomite.” (sic) Though Wilde had initiated the case, it was he who ended up on trial. The defense was equipped with evidence that Wilde had sexual encounters with other men, a criminal act in England at the time. His case collapsed, he was later convicted of “gross indecency,” spent two years doing hard labor and died in France a few years later.

AD

AD

Perennial presidential candidate Lyndon H. LaRouche Jr. sued NBC News for defamation in 1984 over segments that characterized him as an anti-Semitic leader of a fringe movement. NBC News filed a countersuit, and its lawyers made news by cross-examining LaRouchites in the courtroom. Two LaRouche followers testified that “they believed that NBC, The New York Times, The Washington Post and Walter Mondale, among others, operate as part of a ‘drug lobby’ that promotes the use and sale of drugs,” according to an account of the trial. NBC News initially won $3 million in damages, an amount that was later reduced. “I was in the courtroom for the NBC lawyers’ cross-examination of LaRouche, and it was a thing of beauty,” says Lee Levine, senior counsel at Ballard Spahr with 40 years in the business.

We won’t venture any comparisons between those cases and the Trump campaign suits. Yet the cases against the Times and The Post — filed by attorney Charles Harder, known for the privacy litigation that resulted in the bankruptcy of Gawker Media — have prompted some speculation about the point here. Does Trump want to be able to tell his rally crowds that his campaign has sued the Times and The Post? Yeah, probably. Do Trump & Co. want to keep reminding everyone that Mueller set out to investigate illicit collaboration between the campaign and Russia yet failed to establish such a conspiracy? Apparently. Is Trump’s history of tying up his real estate competitors and contractors in litigation seeping into Washington? Most assuredly.

Also most assuredly, the campaign doesn’t want a situation in which newspaper lawyers are nosing about in its business. According to lawyers consulted by this blog, the Trump campaign would be hard-pressed to fend off information requests submitted by the defendants in these suits. And that includes discovery targeting Trump himself: The chances of securing a judge’s order for the president’s deposition are greater if he’s the plaintiff than if he’s the defendant. His campaign, after all, is the one that’s asking for this mess!

AD

AD

Both newspapers declined to discuss their legal strategies for this post. The Erik Wemple Blog asked the Trump campaign if it was prepared for discovery in this case. We will update with any response. Legal experts contacted by the Erik Wemple Blog don’t believe the fact that the case was brought in the campaign’s name would necessarily shield Trump himself from discovery, since he’s the person in charge of the campaign, a likely fact witness and the real party in interest in terms of alleged damages.

Flimsy as they are, the campaign’s complaints follow something of a template: Denounce the allegedly defamatory statements, cite the Mueller report, claim damages and wrap things up. They’re both eight pages of publicity-producing First Amendment betrayal. So it stands to reason that the Trump campaign and Harder may team up for additional lawsuits against other newsrooms. How hard could it be to wring an equally baseless claim from something published by CNN or NBC News, to name just a couple of the most frequently attacked outlets in Trump’s pronouncements?

Addressing the complaint against the Times last week, Trump said in a briefing, “They did a bad thing, and there will be more coming.”

How long before some fed-up news outlet says, Bring it on?