President Trump's recently filed lawsuit against The Wall Street Journal for its report about a birthday letter President Trump allegedly sent to Jeffrey Epstein has me thinking about the movies. As I read the lawsuit, I can't help but think of some cinematic parallels.
The 1994 classic "Dumb and Dumber" immediately comes to mind, given that President Trump's lawyers failed to comply with Florida's statue requiring a defamation plaintiff to give the defendant five days' notice before filing a defamation suit. This would allow the court to immediately dismiss the suit. It's not clear if Jim Carey or Jeff Daniels is co-counsel.
The other thing that's notable about the lawsuit is that it makes a demand for $10 billion in damages. This reminds me of the scene in "Austin Powers" where Dr. Evil initially plans to demand $1 million in ransom, but, on advice of #2, decides to demand . . . $100 billion dollars.
But let's look at the substance of the case. In the suit, Trump and his lawyers claim unequivocally that the letter does not exist. This is notable. He doesn't say the Journal quoted the letter out of context, or somehow made a mistake about the letter's content. Rather, the suit plainly says the letter is "fake and nonexistent." This makes me think of the line in "Top Gun" where Officer Stinger tells Maverick, "son your ego is writing checks your ego can't cash." Claiming that the Wall Street Journal made up the very existence of the letter is a check that may turn out very hard to cash.
Having represented the media for 30 years, I find it hard to believe the Journal's lawyers would allow the paper to publish the story without having reviewed the letter. We all know President Trump's propensity to sue, so the lawyers at the Journal no doubt flyspecked that reporting to the nth degree. Discovery will likely show whether the letter exists. Much like the movie "Big," Trump should be careful what he wishes for here.
But the lawsuit may not get to the discovery stage. If the court doesn't dismiss the suit for the failure to comply with Florida law, it may dismiss it because it is legally deficient. In the first place, an article must be defamatory to be actionable. That means the article has to say something that would harm President Trump's reputation. Or, as President Trump would say, it has to be "nasty." But all the article says is that President Trump sent a birthday letter to a friend. President Trump admits he was friends with Epstein during this time. So, what is the defamation here? The Journal didn't accuse President Trump of a crime. It's not defamatory to report on a birthday greeting.
The other reason the court could dismiss the suit at the jump is because it doesn't adequately plead "actual malice." When a public figure like President Trump sues for defamation, he must plead and prove that the Journal published the article knowing it was false. The lawsuit states that the Journal published the article with "actual malice," but it doesn’t give any facts to support that allegation. The closest it comes is to say that when the Journal called the White House for comment White House counsel responded that the intended "article was false in claiming that President Trump authored the purported letter, which he did not." Maybe President Trump's lawyers missed that day in law school, but it isn't "actual malice" to refuse to take the President's word for it. This reminds me of the scene in the "Godfather" when Michael Corleone tells Carlo "don't insult my intelligence . . . it makes me very angry." The judge may feel the same way.
Ultimately, the lawsuit is like Cool Hand Luke's poker hand in the movie of the same name. In that case, it worked out well for Luke, who comments "sometimes nothing is a cool hand." But here, I don't think President Trump should count on the same outcome.
