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October 25, 2016


When I first engaged in the practice of law, an old judge told me never to take on representation of a plaintiff’s claim in slander or libel because they were like a bucket of —-; that the more you stirred them the worse they stunk. I took on only one in my career but it settled before trial.

Donald Trump likes to threaten lawsuits against anyone who says anything about him he doesn’t like, such as women who claim he groped them, French-kissed them etc. all without their consent. Let’s hope he does sue them so their counsel can question him under oath in pretrial discovery, which will likely give credence to the old judge’s observation about stirring the pot. He will have enough trouble staying in court as a public figure if those he sues file preliminary motions to dismiss, since the law sets a very high bar for being accountable in damages to public figures given the right of fair comment under the speech section of the First Amendment. See New York Times v. Sullivan.

I think Trump uses the threat of lawsuits as a club to silence dissent and I think he is a frequent user of such intimidation given his record of being in the staggering sum of more than three thousand lawsuits so far in his life span. I practiced law for 35 years (including stints as a prosecutor and Assistant Attorney General) and I never came close to involvement in over 3,000 lawsuits. Lawyers don’t live that long.

Trump has an additional opportunity to sue the 11th woman in this groping mess who just a day or so ago claimed that he groped and kissed her without her consent. His reply on the stump was that she was a porn star, that he denied the charge, and that even if so it would not be the first time she had been groped. His lawyers should tell him that the victim’s employment or vocation is immaterial as to whether the grope occurred in this day and age where in some jurisdictions a husband can be indicted for raping his wife. Trump in the Stone Age world he has concocted for himself has apparently stopped evolving and lives in a world where one invades the cave, pulls the woman out by her hair, and goes from there. After all, there should be no impediments to self-gratification in his narcissistic world.

Back to lawsuits as a club to enforce conformity and suppress free speech – No ethical lawyer I know would file a suit in defamation for such a purpose on behalf of any client, instead demanding that the client have a real and subsisting set of facts giving rise to the claim. To knowingly and willfully file such a suit that has no merit is, for my money, an act of legal malpractice and counsel should be called before a grievance committee of his/her local bar association to explain such an abuse of the legal system. Courts have the power to dismiss lawsuits that are without merit and assess costs and fees on the losing party, but it is a power that, in my experience, is rarely exercised.

Trump has also talked about how he is going to change the libel laws in this country. That power, he may be surprised to know, is outside the purview of the executive branch and within the exclusive purview of the Supreme Court. (See the Times v. Sullivan case cited above.) He has talked about a lot of things he says he is going to do where he has no constitutional authority to do them, such as trashing trade treaties he doesn’t like. The Constitution gives exclusive authority for the conduct and regulation of trade to the Congress, as we all learned in a Trade Regulation course in law school.

Trump is his own worst enemy. In a speech given recently in Gettysburg ballyhooed as what he would be doing his first hundred days of office, he instead talked more about how after the election he was going to sue these lying women for claiming he groped and kissed them without consent. He is clearly a thin-skinned vengeful and disturbed person who should not be within a mile of the atomic button. Let’s vote accordingly.    GERALD       E




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