After Mueller – how Trump might get even

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Wikimedia Commons/Gage Skidmore

Now that the two-year, $25 million Mueller investigation has determined that the Trump-Russian collusion narrative was, at best, a bunch of delusional bullshit, the most interesting question going forward is how might Trump and his allies go about getting even.

(The one certainty is that forgiveness and reconciliation are not on the table.)

One obvious way is to start with an investigation of the Steele Dossier, its construction out of Russian-sourced disinformation, the role of Hillary Clinton’s campaign in funding its creation, its use by the FBI in obtaining warrants from the FISA court for surveillance of Trump campaign officials, and whether a coterie in the FBI’s senior leadership used it in a conspiracy to drive Trump from office.

South Carolina Senator Lindsey Graham, who is chair of the Senate Judiciary Committee, has already indicated he intends to pursue such an investigation. As well he should. Mueller doesn’t seem to have paid much mind to the possibility of Russian-Clinton collusion even though the provenance of the Steele Dossier suggests as much. At the very least, Mueller should have had it dusted for Putin’s fingerprints. It’s not clear he even did that much.

A less-obvious Trump counter-attack would be to sue selected media outlets for libel.

Granted, it’s widely assumed that ever since the 1964 Supreme Court decision in New York Times Co. v. Sullivan it has been impossible for public figures to sue a publication or broadcaster for libel. Uh, not exactly.

N.Y. Times v. Sullivan does not grant the press blanket immunity from libel cases brought by elected officials and, more broadly, public figures. What the case actually says is that for an elected official like Trump, to prevail in a libel case he must prove the libel was published or broadcast with deliberate malice, meaning that the media outlet knew in advance that the charge was false, or that the outlet acted with reckless disregard of the truth in spreading it.

It’s a high standard, but given the execrable conduct of the press for the last two years, Trump may be able to meet it.

Since he was elected, media outlets like the Washington Post, the New York Times, CNN, MSNBC, etc. have subjected Trump to a non-stop, 24/7 deluge of “hatred, ridicule, and contempt,” which is the dictionary definition of defamation (aka libel). The issue isn’t whether the speech directed at Trump fits the definition of libel. It does. The issue is a) whether the libel was true, and b) whether it was produced and disseminated with malice.

So here’s how a Media v. Trump libel case might play out.

A media outlet’s main defense in a libel case is truth.

As a matter of law, accusing someone of being an ax murder is libelous, whether he did it or not. But if it happens that the guy who sued you for saying he was an ax murderer actually was an ax murderer, well he can’t make you pay for damaging his reputation by saying so in print. (Prior to the American Revolution, he could, because back then truth wasn’t allowed as a defense in libel cases.) On the other hand, if he wasn’t an ax murderer and you said he was, he can tear into your bank account with a chainsaw.

And if it turns out that you falsely called him an ax murderer without making any real effort to confirm the charges, because you didn’t like him very much, then he can claim you acted with malice and ask the court to hit you with punitive (like triple) damages for being an asshole.

Back to Trump. Since Mueller found that the Russian collusion narrative was false, a media outlet that accused Trump of collusion with Russia or outright treason might have a hard time using truth as a defense.

If it couldn’t use truth as a defense, it would try to show that while it got the story wrong, it wasn’t acting maliciously.

Good luck with that. It wouldn’t pass the smirk test.

The media outlet’s next lines of defense would probably be that 1) its anti-Trump narrative fell under its “right of reply” (another defense in libel cases) to Trump attacking it for fake news, and 2) that since Trump routinely lies, calling him a pathological liar isn’t actionable libel.

Trump’s side would respond to this by claiming that 1) the media started it, and Trump was the one exercising the right of reply by calling out the media for fake news, and 2) Trump’s chronic misstatements and hyperbola amount to no more than “harmless puffery,” the legal concept that keeps advertisers from getting sued for claiming their products deliver the Brightest Smile, the Fastest Relief, the Greenest Lawn etc. when they don’t.

And so on.

A Trump-media libel trial would be a delicious media circus of epic proportions; it would be the reality TV show of the century.

OK, Trump probably couldn’t win a libel case against the anti-Trump media, but I suspect he wouldn’t be laughed out of court either. And that just might prompt some flicker of self-reflection among the country’s increasingly vicious, and classless, chattering classes.

this opinion column does not necessarily reflect the views of Boulder Weekly.