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Our long national nightmare must finally come to an end. It is time to impeach President Trump and put a stop to his failed presidency.
Sorry. Just practicing.
It is interesting, though, that Donald Trump is the only serious presidential candidate I can think of who has ever made a pledge to commit high crimes and misdemeanors part of his campaign platform.
He has said he would waterboard—and worse—terror suspects, an almost certain violation of international and U.S. law. He also has promised to go after the families of terror suspects, an undisguised ukase aimed at killing innocent people.
He says he will block Muslims from entering the United States. That would surely violate the Constitution if we take the First Amendment prohibition against laws respecting an establishment of religion to also forbid laws disrespecting an establishment of religion.
Trump’s most recent assault on the First Amendment came in a speech in Texas on Friday in which he promised to rewrite libel laws to make it so that when reporters “write purposely negative and horrible and false articles, we can sue them and win lots of money.”
As usual, Trump’s remarks drew huge applause from the enthusiastic Texas crowd. But no matter how much you may hate the press, or how much you love Trump, it’s worth considering whether loosening libel laws is a smart idea.
Trump was vague on the details of exactly how he would change the law. Presumably he would, either by executive fiat or by stacking the Supreme Court, overturn New York Times vs. Sullivan. That’s the 1964 Supreme Court decision that requires public figures to show “actual malice” in order to recover damages in a libel suit. Actual malice is defined as publishing something known to be false or with reckless disregard for the truth.
The Supreme Court held that uninhibited and robust public debate on matters of broad concern was so important that it should not be circumscribed because of innocent mistakes.
So how would Trump like to change this? One way to consider the matter is to examine defamation suits that Trump himself has filed or threatened to file. Presumably, he thinks the law should have allowed him to win all of these cases. So here’s a sampling:
♦ He sued the author of a book that cited anonymous sources who claimed that Trump’s wealth is far smaller than the billions he claims. Trump’s $5 billion lawsuit was rejected by a New Jersey appeals court, which held that the author had no reason to suspect his sources were inaccurate.
♦ He sued Tarla Makaeff, the lead plaintiff in a class-action lawsuit alleging fraud at Trump University, for defamation. She then asked to withdraw from the suit, fearful that the case would drive her into bankruptcy, but a judge ordered Trump to pay $800,000 for her legal bills.
♦ He sued a Miss USA contestant who claimed on her Facebook page that the pageant was “rigged” because finalists were picked in advance. He won an arbitration award in the case, and she later successfully sued her lawyer for malpractice.
♦ He unsuccessfully sued comedian Bill Maher for $5 million after Maher asked Trump to prove that his father was not an orangutan. Maher was just making a joke about Trump’s birther attacks on Barack Obama’s citizenship, but if you have ever looked at a picture of Trump side by side with a picture of an orangutan, well … .
♦ He threatened to sue the conservative think tank Club for Growth for running ads pointing out inconsistencies in Trump’s past tax positions.
♦ He has threatened to sue presidential candidate Ted Cruz over negative political ads Cruz has run. First Amendment attorney Floyd Abrams called the threat “ridiculous, absurd, laughable.”
♦ He threatened to file a $25 million suit against the organizer of a campaign to have Trump removed as a celebrity spokesman for Macy’s department store because of Trump’s alleged sexist behavior and climate change denial.
♦ He threatened to sue rapper Mac Miller over a song called “Donald Trump.”
♦ He threatened to sue comedian Rosie O’Donnell after she attacked him for his business bankruptcies, multiple marriages and “snake-oil salesman” persona.
“I look forward to taking lots of money from my nice fat little Rosie,” Trump said.
Are we detecting a pattern here? It’s not as if Trump has some deep-seated devotion to truth telling. Just last week at the Republican debate, he claimed that the United States has the highest taxes in the world.
That is about as far from true as it could possibly be. Of the 33 developed countries in the Organization for Economic Co-operation and Development, 30 have higher taxes than the United States as a percentage of Gross Domestic Product.
What Trump’s yen to change libel laws means was perhaps best explained in 2011 by his special counsel, Michael Cohen: “It means that if somebody does something Mr. Trump doesn’t like, I do everything in my power to resolve it to Mr. Trump’s benefit.”
It means that Trump believes that people with deep pockets should be able to block public criticism through endless threats and lawsuits that bleed critics dry. It’s the SLAPP principle of governance: Strategic Lawsuits Against Public Participation are aimed at keeping the public quiet while people with unlimited funds do as they wish.
If he becomes president, this column’s opening sentence, which is both false and defamatory, and is written with unbounded malice, could be grounds for legal action. This is America, Trump style.
This piece first appeared at Last Best News.