He likes to litigate.

Photographer: Don Emmert/AFP/Getty Images

Don't Fear Trump's Lawsuits. He'll Keep Losing.

Timothy L. O'Brien is the executive editor of Bloomberg Gadfly and Bloomberg View. He has been an editor and writer for the New York Times, the Wall Street Journal, HuffPost and Talk magazine. His books include "TrumpNation: The Art of Being The Donald."
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Awash in allegations that he sexually assaulted several women, Donald Trump is reaching into his old playbook and threatening to sue the media for reporting the claims, which he says are false.

Although a number of outlets, including the Palm Beach Post, People and an NBC affiliate, posted stories Wednesday night about Trump’s allegedly forcing himself on women, it was a New York Times piece that apparently rankled Trump the most.

That story, “Two Women Say Donald Trump Touched Them Inappropriately, offered detailed allegations from a pair of women who said they had troubling encounters with the Republican presidential nominee.

When interviewed for the story, Trump told a reporter for the Times, Megan Twohey, that she was “a disgusting human being.” Late Wednesday night he upped the ante. His lawyer, Marc Kasowitz, sent a letter to the Times, putting the newspaper on notice that Trump intended to sue. Here you go:

 

The Times responded Thursday, and declined to remove the article, saying “We did what the law allows. We published newsworthy information about a subject of deep public concern.” The Times also noted that if "Mr. Trump disagrees" then "we welcome the opportunity to have a court set him straight." Here's that letter:

This may not be the best time to make light of things, but I don’t think that the Times and its reporters -- or anybody else in broadcast, print or digital media covering Trump right now -- really have much to worry about here. In fact, there’s a lot for anyone sued by Trump to look forward to, especially if litigation gives you the chance to dig deeply into Trump’s past and unearth more information that he doesn’t want voters, his fans and his detractors to know about.

You see, I’ve been there, and Kasowitz is a familiar name to me. He was Trump’s lead attorney when Trump sued me a decade ago for libel when I was still a reporter and editor with the Times.

I had written a biography,  “TrumpNation,”  which angered Trump because, among other things, it questioned his business record and the size of his fortune. Trump sought $5 billion in damages. (If you’re wondering: $5 billion was a lot more than the advance I received for the book.)

For starters, the attempts at intimidation are familiar. In the run-up to the suit, Kasowitz showed up at a book reading I was giving to tell me, with a grin, that he was a writer, too. The Trump team recorded the reading with a video camera posted across the street, and the audience included a few obvious plants (literally dressed in raincoats) who asked probing questions like: “Didn’t you write this book to hurt Trump because you don’t like him?” I think I said something really shrewd like, “Of course not,” without thinking to add: “Are you crazy? The guy could be president someday.”

In retrospect, I realized that Kasowitz and his crew were preparing for the libel suit Trump filed against me a few months later. The suit dragged on for several years -- in part because Trump was slow to respond to discovery requests for his financial and tax records -- before the court tossed it out in 2011. In short, Trump lost his case, and he spent boatloads of money litigating it.

Trump never seemed to have pondered the implications of sitting through discovery in a hotly contested lawsuit -- which is why my lawyers had the opportunity to depose him for a two-day stretch during which he lied 30 times about his career and finances.

This is why reporters should take heart whenever Trump rattles his legal saber (and he’s been threatening lawsuits against business partners, competitors, the government, political opponents and the media for more than 40 years now). Lots of cases like the Trump University litigation and various other fights have already caused Trump to reveal more publicly about his operations than he would otherwise hope. 

Moreover, Trump doesn’t really understand the fundamentals of libel claims. That became clear the last time Trump ranted at the Times for a different story in September:

Donald J. Trump @realDonaldTrump
My lawyers want to sue the failing @nytimes so badly for irresponsible intent. I said no (for now), but they are watching. Really disgusting
Twitter: Donald J. Trump on Twitter

“Irresponsible intent” isn’t a standard in libel law. It doesn’t exist. Trump and Kasowitz need some help, so here’s some background for them. A line of legal decisions that started with the landmark U.S. Supreme Court case, New York Times Co. v. Sullivan, requires public figures bringing libel claims to show that the defendant acted with “actual malice.” This requires the plaintiff to prove that the media wrote or broadcast something while knowing (or at least strongly suspecting) that it was false. (“Truth” is its own defense.)

Trump was most certainly a “public figure” when he sued me, and his current presidential bid has only served to make him the most public of public figures. The protections afforded the media by Times v. Sullivan mean Trump would face heavy odds trying to use libel suits to tamp down scrutiny of his past. 

Either way, there’s a big difference between Trump threatening to sue and actually suing -- and he often never follows through with his threats anyway. So exhale and keep reporting aggressively all of you scribes. Trump is being Trump, and Nov. 8 is just around the corner.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Timothy L. O'Brien at tobrien46@bloomberg.net

To contact the editor responsible for this story:
David Shipley at davidshipley@bloomberg.net