The legal threats have arrived in various forms. One aired on CNN. Another came over the phone. More arrived in letters or emails.
All of them appeared aimed at intimidating news outlets and others who have criticised or questioned President-elect Donald Trump and his nominees to run the Pentagon and FBI.
The small flurry of threatened defamation lawsuits is the latest sign that the incoming Trump administration appears poised to do what it can to crack down on unfavourable media coverage. Before and after the election, Trump and his allies have discussed subpoenaing news organisations, prosecuting journalists and their sources, revoking networks’ broadcast licences and eliminating funding for public radio and television.
Actual or threatened libel lawsuits are another weapon at their disposal – and they are being deployed even before Trump moves back into the White House.
It is notoriously difficult for public figures like Trump to win defamation lawsuits. Under long-standing Supreme Court precedent – which Trump and some of his allies want to see weakened or overturned – plaintiffs must prove that a publisher knew a defamatory statement was false or acted with reckless disregard for its accuracy.
But that high bar has not stopped a wide range of politicians, business leaders and others from threatening or filing such suits – a strategy that often seems tailored to cause news outlets and individuals to rein in aggressive coverage of the public figures.
The strategy can pay other dividends as well.
On Saturday, ABC News said it had agreed to give $15 million to Trump’s future presidential foundation and museum to settle a defamation suit that Trump filed against the network and one of its anchors, George Stephanopoulos. Trump sued in March after Stephanopoulos inaccurately said the former president had been found “liable for rape” in a civil trial. In fact, Trump had been found liable for sexual abuse.
The settlement followed months of attacks by Trump and his allies on ABC News, with the once and future president going so far as to say that the network should lose its federal broadcast licence.
The deal set off criticism of ABC News by those who perceived the network as needlessly bowing down to Trump. And it led some legal and media experts to wonder whether the outcome would embolden Trump and others to intensify their assault on the media, at a moment when many news organisations are struggling with declining public trust and deteriorating finances.
Even before the settlement was reached, Elizabeth McNamara, a prominent media lawyer, said she expected that the trend “is only going to increase,” given the political environment.
“There’s been a pattern and practice for the past couple of years of using defamation litigation as a tactic to harass or test the boundary of case law,” said McNamara, who represented ABC News and Stephanopoulos but was speaking in general. (Her law firm, Davis Wright Tremaine, has also represented The New York Times.)
Over the past several weeks, lawyers for Trump and two of his most high-profile nominees – Pete Hegseth, the potential defense secretary, and Kash Patel, whom Trump has picked to run the FBI – warned journalists and others of defamation lawsuits for what they had said or written.
Hegseth, until recently a Fox News host, was accused of sexual assault in 2017. While he denies the allegation, he struck a confidential settlement with his accuser.
In an interview on CNN this month, Hegseth’s lawyer, Timothy Parlatore, said the woman was free to speak publicly. But, he warned, “if she repeats these false statements, then she will be subject to a defamation lawsuit.”
Parlatore, who previously represented Trump, said in an interview that he had delivered a similar warning directly to the accuser’s lawyer. “I suspect that she’s not going to come forward at all,” Parlatore said. “There’s no benefit. It’s all downside.”
Parlatore has also recently warned news outlets, including Vanity Fair and The New Yorker, that their planned articles about Hegseth’s past, including drinking and marital problems, could be defamatory, potentially exposing them to litigation, according to four people at the magazines and an email reviewed by the Times. Despite the warnings, both outlets published the articles. (Hegseth has denied having a drinking problem.)
Parlatore said he was not trying to squelch negative coverage by issuing baseless threats. Instead, he said, he was seeking to prevent the spread of false information about his client. “I don’t threaten things that I don’t intend to do,” he said. (Parlatore previously sued a Times reporter for defamation on behalf of a former Navy SEAL, Edward Gallagher. Gallagher later dropped the suit.)
Other lawyers representing prominent conservatives portrayed the growing popularity of libel litigation as a bipartisan trend, pointing to successful lawsuits against Fox News, Alex Jones and Rudy Giuliani. But those cases were brought by private companies and individuals, not those seeking or holding public office.
Patel, who held senior positions in the first Trump administration, said before the election that he would use a job in the next administration “to come after the people in the media who lied about American citizens, who helped Joe Biden rig presidential elections.”
Patel’s most recent threat was aimed not at a journalist but at Olivia Troye, who was a senior aide to Vice-President Mike Pence. In a recent MSNBC appearance, Troye denounced Patel as a delusional liar. Patel’s lawyer, Jesse R. Binnall, fired off a letter demanding that she publicly retract her remarks. Absent a retraction, he wrote, “Mr Patel will take swift legal action to uphold his rights and reputation.”
In response, Troye’s lawyer, Mark S. Zaid, sent Binnall an image of a Monty Python character sticking out his tongue in a taunt.
Patel and Binnall have routinely threatened or filed libel lawsuits. In 2021, Patel created the Kash Patel Legal Offence Trust, in part to finance such suits. The trust helped bankroll a defamation suit that Richard Grenell, a senior official in the first Trump administration, brought against Troye in 2022, according to a court filing in the case. Troye has sought to have the lawsuit dismissed.
Binnall is also Grenell’s lawyer. His other clients in defamation cases have included Trump’s former national security adviser Michael T. Flynn; a former Republican congressman, Devin Nunes; and Lieutenant Governor Mark Robinson of North Carolina, who recently sued CNN for linking him to lewd comments on pornography websites. (Robinson denied posting the comments. CNN is seeking to have the suit dismissed.) Binnall also has a suit pending against the Times on behalf of the right-wing group 1st Amendment Praetorian.
Lawyers like Binnall “have been using lawfare against perceived and actual enemies for years,” Zaid, the lawyer for Troye, said in an interview, describing the tactics as an attempt at intimidation.
Over the decades, Trump himself has filed repeated lawsuits against media companies and others for what he considered unfair or unfavourable coverage. Aside from his settlement with ABC News, Trump has hardly ever prevailed. He currently has a pending libel suit against the board that hands out Pulitzer Prizes. In October, he sued CBS News, contending that it engaged in deceptive trade practices in a 60 Minutes interview of Vice-President Kamala Harris.
In a 10-page letter sent days before the November election, a lawyer for Trump, Edward Andrew Paltzik, accused the Times of publishing three articles that were “deceptive, malicious, intentional, defamatory, disparaging, distorted, fabricated, false, and misleading.” The letter demanded that the Times retract and apologise for the pieces.
Otherwise, Paltzik wrote, “President Trump will have no alternative but to enforce his legal and equitable rights.” He concluded, “BE GUIDED ACCORDINGLY.”
David McCraw, a lawyer for the Times, responded two days later. He defended the articles’ accuracy. And he described Paltzik’s letter as “premised on the deeply troubling notion that anyone who dares to report unfavourable facts about a presidential candidate is engaged in ‘sabotage’ (as opposed to, say, contributing to the free exchange of information and ideas that makes our democracy possible).”
This article originally appeared in The New York Times.
Written by: David Enrich
Photographs by: Tom Brenner, Kenny Holston
©2024 THE NEW YORK TIMES
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