Trump Has 'Big Hill To Climb' To Win Lawsuit Against WSJ: First Amendment Attorney

Forbes Breaking News

Last week, President Donald Trump filed a defamation lawsuit against The Wall Street Journal after the organization ran a story on what they described as a “bawdy” letter Trump allegedly wrote disgraced sex offender Jeffery Epstein for his 50th birthday. First amendment attorney Jeff Lewis joined Brittany Lewis on "Forbes Newsroom" to discuss the strength of the lawsuit.

Transcript

00:00Hi, everybody. I'm Brittany Lewis, a breaking news reporter here at Forbes. Joining me now

00:07is First Amendment attorney Jeff Lewis. Jeff, thanks so much for joining me once again.

00:12Yeah, thanks for having me.

00:14There is a big case, a big defamation case that I would love to get your insight on.

00:19Last week, the Wall Street Journal ran a story on what they described as a body letter President

00:24Trump allegedly wrote to Jeffrey Epstein on his 50th birthday. And according to the journal,

00:29it included a drawing of a naked woman and Trump writing, quote,

00:33happy birthday and may every day be another wonderful secret. President Trump has vehemently

00:39denied he wrote this letter and he drew that drawing saying he doesn't draw pictures of women

00:43and saying those weren't his words. He filed a defamation lawsuit against the journal,

00:47the reporters, and Rupert Murdoch, the founder of News Corp, which essentially owns the journal

00:53because it owns the journal's parent company. So to start off the conversation,

00:57what are your thoughts on this lawsuit?

00:59My thoughts are President Trump has a big hill to climb to win this lawsuit. There are three big

01:05obstacles in Florida he has to overcome to win this case. He's got to prove actual malice.

01:11At the time, the Wall Street Journal penned this piece that the Wall Street Journal's

01:16journalists didn't believe subjectively in the truth of this piece. It's called actual malice.

01:21Very hard to prove that. Second big hurdle, Florida's got an anti-slap law,

01:26which means immediately Trump's got to prove his case up or face dismissal. And then third,

01:31and most importantly, in Florida, before you sue a media defendant like this, you have to give five

01:36days notice. Hey, we're about to sue you. And as far as I know, it hasn't been reported whether

01:40or not he has given such notice.

01:42And I want to read some words from the lawsuit. The lawsuit says that the story is, quote,

01:48glaring failures in journalistic ethics and standards of accurate reporting. And then it

01:52went on to say this, quote, the reason for those failures is because no authentic letter or drawing

01:57exists. Defendants concocted this story to malign President Trump's character and integrity

02:02and deceptively portray him in a false light. This lawsuit is to the tune of billions of dollars.

02:08So, I mean, how how do you do that? How do you say that, prove that this story had these glaring

02:15failures, that these journalists concocted this just because they hate President Trump, essentially?

02:21Yeah, you know, to prove up a case like this requires specific facts that a journalist

02:27knew that the statements were false and proceeded anyway. And just saying, hey, you don't have a

02:33copy of the letter doesn't mean that the journalist knew at the time that the article was written

02:39that no such letter existed. We don't know if a letter exists or not. So I will say this. There

02:45are two claims pled in the complaint, one for defamation per se and one for defamation per quad.

02:51One of the claims doesn't even require any proof of actual damages, meaning if President Trump

02:56can prove that his reputation was harmed by a serious allegation, he doesn't have to prove a

03:01nickel of damages have been actually incurred to win. But he does have some hurdles, as we've

03:06discussed earlier in the interview. And the lawsuit seeking $10 billion in damages for each kind of

03:12defamation. There's two counts of defamation, meaning that if my math is correct, it's adding up

03:17to at least $20 billion. So that's a huge number. Do you think that adds anything to this case? And do you

03:24think that's worth what President Trump is suing over?

03:29Well, look, anytime you're sued by a president of the United States, or a big celebrity or a big

03:34well-known politician, it should be of concern to the defendant. On the other hand, what should

03:41give the Wall Street Journal pause, the thing that should cause concern for the Wall Street Journal

03:47is whether things outside the courtroom could be brought to bear to silence the Wall Street Journal.

03:52We've seen executive orders from this president targeting law firms or targeting mergers and that

03:58kind of thing. It's those kinds of pressures that should cause Wall Street Journal concern. But there's

04:04nothing in this lawsuit, based on the facts that are alleged, that should cause the Wall Street Journal's

04:09lawyers to lose any sleep.

04:10Okay, that's really interesting. So President Trump's saying the Wall Street Journal got this wrong.

04:15You're saying, President Trump, you don't have that strong of a case.

04:20Here's why I say he doesn't have that strong of a case. First of all, he didn't allege

04:23that he complied with the five-day rule in Florida. He doesn't allege any real specific facts that the

04:30reporters knew, for example, that their witness who gave him this letter was unreliable, or a fact that

04:36such claims have been debunked in the past. There's very few specific examples of facts that would

04:43put the Wall Street Journal on notice that their story was false. That's why I say this kind of

04:48case is very hard to win for President Trump.

04:51So then, because you're saying that President Trump has an uphill battle to climb here,

04:56what's the likelihood of this case even getting dismissed in the first place?

04:59That's going to get dismissed early on, and I expect the Wall Street Journal will bring either

05:05what's called an anti-slap motion to dismiss, or an early motion to dismiss testing the merits of

05:11the case on this issue of actual malice, or this five-day rule in terms of whether or not President

05:17Trump gave five days' notice to the newspaper before suing it. There's going to be an early

05:21testing, and that dismissal order or the failure to dismiss the case will go up to the Court of Appeal

05:26pretty early. And do you anticipate that this case gets dismissed, or it goes onward to the

05:33next step? I would expect this case to be dismissed, unless there's some fact that wasn't

05:39pled in the complaint that Mr. Trump, President Trump, is holding close to his vest. But based

05:43on the facts he's pled in the complaint, I would expect it to be dismissed. If this case doesn't

05:48get dismissed, I want to talk about the discovery process, because President Trump, as we know,

05:52is trying to distance himself from disgraced sex offender Jeffrey Epstein. But would he be forced

05:57to turn over anything in this discovery process that perhaps paints a different picture, perhaps

06:02would show that he has a bigger relationship with Epstein than he's trying to show?

06:08You're absolutely right. If this case survives the dismissal stage, the motion stage,

06:13there will be discovery. And the areas for discovery that he could be required to turn over evidence

06:18do could include depositions, could include whether or not he draws or not, could include

06:23communications or correspondence with Epstein, could include even, this may sound far-fetched,

06:28but there's been media reports that Trump's administration has been scanning the criminal

06:33records regarding Epstein for mentions of the word Trump. And even those efforts could be subject

06:39to discovery. So it's pretty broad what discovery could find in this case.

06:43And I know we're looking down the road here, but Ghislaine Maxwell was allegedly the person,

06:49according to the Wall Street Journal's reporting, the person who put together this book of letters

06:54for Jeffrey Epstein. Could she be called in to testify in this case?

07:00I believe I would expect her to be called in to testify both at a deposition and then ultimately

07:04at a trial. The fact that she's currently serving time is not a barrier to testifying at either.

07:10And how would the Wall Street Journal reporters defend themselves here from President Trump?

07:16Would they have to give up their sources? Would they have to show the letter? Should they have

07:21that letter? Because the letter was not printed and that was something that President Trump took

07:25issue with. Would they have to show that to the president and say, hey, this is the person who gave

07:30it to me? How they'll defend this case is, first of all, they'll say truth and they'll rely on that

07:36five-day rule I talked about before. But in terms of discovery, most states have shield laws that

07:41protect journalists from having to reveal their sources. But having to produce a copy of that

07:46letter is not the same as revealing a source. They could turn over a copy of the letter without,

07:51for example, turning over the email or details about the meeting in terms of how they obtained

07:56the letter, where they obtained the letter from.

07:58And were you surprised by this lawsuit at all as someone who is a defamation attorney who

08:04this is your field here? I mean, were you surprised that President Trump took this

08:08kind of extraordinary step?

08:11No, President Trump, you know, forecast he was going to do that. I was surprised they picked

08:16Florida. They had a few different choices of where they could sue. Florida has a pretty strong

08:20anti-slap law, a quick way to get rid of cases like this. So I'm kind of surprised they didn't do

08:25more forum shopping looking for a state, the weaker anti-slap law.

08:29And so then what should we be looking out for next? I know that this lawsuit was just filed last

08:33week. Yeah. So the first thing you should look for is either an anti-slap motion or motion to

08:40dismiss brought by the Wall Street Journal and the other defendants, or it's possible President

08:46Trump got this lawsuit filed in a hurry. He might file an amended complaint with more facts

08:50regarding the notices he gave and that and additional facts showing that the defendants

08:55acted with actual malice. Those are the next steps.

08:59Well, Jeff Lewis, as we see these next steps play out, I hope you can come back on and break

09:03them down. Thank you so much for joining me. Thanks for providing your insight, your expertise

09:08here, and you're welcome back anytime.

09:11Of course. Thanks for having me.

09:20Thanks for having me.

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