Donald Trump Might Have Just Made the Epstein Story a Hundred Times Worse
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When Donald Trump sued the Wall Street Journal last week for libel after the paper published an article about his relationship with Jeffrey Epstein, he was likely anticipating a rerun of his suit against CBS: bellicose threats followed by a Trump-friendly settlement , perhaps with a side order of censorship. Why else demand $10 billion in damages—an amount roughly the GDP of Togo ?
But the Journal suit is potentially a different beast from the CBS suit. Not only does the president face significant barriers to any actual win on the merits of the case, at least under current law; the legal process may prove politically costly because the mechanics of ordinary civil litigation will likely imperil Trump's ability to control the narrative of the Epstein affair.
To begin with, an obvious reason the suits differ is that Trump relied on different laws to bring them. Although the CBS suit was filed under a Texas state law concerning deceptive business practices, the Journal suit relates on libel. Trump claims specifically not to be the author of a letter and a lewd drawing that, according to the Journal, he put together for Epstein's 50th birthday. The truth of the matter has not yet been litigated.
Despite some complaints by conservative Supreme Court justices, it remains well established that libel plaintiffs must show that a defendant acted with “actual malice.” Unless the Journal knew that its story was false, or proceeded with reckless disregard to its falsity, it's not liable. If the Journal's reporting is accurate, for example, that would also foreclose any liability.
Perhaps the president is anticipating that SCOTUS will revisit libel law and extend its extraordinary series of wins there. But even these justices may be reluctant to return to a legal regime that was notoriously used to defend Jim Crow—before the landmark Sullivan case announced the “actual malice” rule, Southern segregationists wielded libel to shut down debate about their racist segregation. Would even the Roberts court drive us back to those days?
As important as actual malice, but less appreciated, is the fact that a libel case is an ordinary civil case. So if Trump overcomes the Journal's motion to dismiss and the paper declines to settle, he faces the discovery process —a pretrial phase in which parties get to demand evidence from each other. Of course, Trump may be banking on the Murdoch family's News Corp, the Journal's parent company, settling under pressure from its own Republican-aligned leadership and allies.
Crucially, discovery in a libel action is bilateral. The plaintiff and defendant get to make demands for information and documents from the other side. As the nation's leading expert on libel (and former counsel for Dow Jones) Robert Sack has explained , defendants often use discovery to “establish the truth of some portions of the article and thereby remove them from contention.” (Full disclosure: Twenty-three years ago, I worked as a law clerk for Sack, who became a federal judge.)
Carefully reading the complaint, the Journal's lawyer must already realize that this provides an extraordinary range of inquiry.
Obviously, many of the factual questions at issue in the libel follow concern the letter from Trump to Epstein purportedly sent for the latter's 50th birthday. The Journal can seek information related to Trump's authority of that note, including a deposition in which the president may be required to testify under oath. And it can seek any and all documentary information about Trump's relationship with Epstein around that time—again, under threat of penalty.
Trump's complaint, however, opens the gate for discovery even wider: It calls “unsubstantiated” and “false” the assertion that the president has been a “friend,” a “pal,” or “family” of Epstein. In effect, the complaint here invites the Journal's lawyer to use interrogatories and depositions to plumb the entire relationship between the two men. Indeed, it positively drives those attorneys, simply as a matter of zealous advocacy, to assume a robust and admissible record of the entire arc of the Trump-Epstein relationship
Consider the risks to Trump at this point: Other presidents have been, shall we say, less than judicious with the truth while speaking under oath in civil depositions. Things didn't turn out well . Although impeachment seems unlikely in this case, a well-publicized instance of perjury by the president can hardly be seen as a political winner—at least in relation to Epstein.
Nor can Trump use his office as a shield or a stick, at least under present law. The Supreme Court has previously rejected efforts to protect the president from civil suits based on private conduct, even while the president is in office. In that case, a suit filed by Paula Jones against Bill Clinton, the majority warned that it might be appropriate to delay litigation to avoid burdening the defendant, the incumbent president. But here, where the president has initiated the suit while in office with the apparent intent of vigorously prosecuting it, he can hardly be heard to complain and seek delay.
Moreover, even though the Roberts court has established (a dangerous ) criminal immunity for presidents when they act in their official role, the same justices have twice permitted evidentiary demands to be made of presidents in their unofficial capacity.
In two cases decided on the same day in July 2020, SCOTUS allowed evidentiary requests by legislators and a state prosecutor to proceed against the then sitting president (Trump, as it happened). Although the court warned district courts to proceed with delicacy, it offered presidents no conclusive shield from discovery in their nonofficial roles.
True, those cases involved legislative or criminal inquiry. It's not guaranteed that they would extend to the civil context. And I suspect that the Roberts court would be reluctant to extend them to a case in which the president was a defendant. But recall, again, that this case was not brought against Trump. He's seeking to extract by force of law $10 billion from the Journal and its reporters. To embrace that outcome while denying defendants the chance to make their case flies in the face of due process in ways conservatives and liberals alike have historically resisted.
It isn't hard to imagine that the lawyers for the president in his suit against the Journal did not have the time to air all these possible, even probable, downstream consequences to Trump—especially given the speed with which the suit was filed. It is also likely that the president would have been little inclined to listen to tedious lawyerly cautions. As any attorney will tell you, clients often ignore these concerns.
But incaution in this case may well have consequences, not just for the Journal but for how long the Epstein saga runs—and whether it goes on to drag down the Trump presidency in the coming months.
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