ABA Stifles Report on Trump for Fear of Being Sued

Members of an American Bar Association (ABA) Media Law committee commissioned a report on Donald Trump's litigation history. The New York Times reports that the commissioned report, written by Susan E. Seager, a former journalist, and a First Amendment lawyer, concluded he was a "libel bully" who "has never won a single speech-related case filed in a public court."

According to the New York Times, the ABA is not publishing the report because, get this, it is afraid of being sued by Trump. (The ABA spokesperson denies this is the reason.)

Alarmed by Donald J. Trump’s record of filing lawsuits to punish and silence his critics, a committee of media lawyers at the American Bar Association commissioned a report on Mr. Trump’s litigation history. The report concluded that Mr. Trump was a “libel bully” who had filed many meritless suits attacking his opponents and had never won in court.

But the bar association refused to publish the report, citing “the risk of the A.B.A. being sued by Mr. Trump.”


The ABA has 410,000 members. While special rates are available for some groups of members and less for newer lawyers, normal dues are now $457 per year for lawyers admitted more than 10 years (not including extra charges if you want to join a particular section.) I'm no math whiz, but when I put those numbers into Google, it comes out to $187,370,000. I think the ABA can well afford a lawsuit by Donald Trump. Lawyers would volunteer to represent the organization for free. The only risk would be a judgment if it loses. Very few of these cases actually go to trial. Whether true or false, I suspect a lawsuit over this report would settle for a nuisance value.

I haven't seen Trump's response to the report, but I am comfortable saying that I believe Donald Trump would deny he is a "libel bully" and (true or not) that he's never won a free speech case in court. (Hopefully this and the fact that I'm not endorsing the findings of the report are enough to keep me from being sued for writing about the report. I'm more interested in the ABA's purported reason for refusing to publish the report than the report itself.)

The ABA media committee's commissioned report is online at the Media Law Resource Center. (No link, in case it is libelous.) The takeaway to me is Trump's litigation history in total, not just the free speech related suits. The report says he has been involved in 4,000 lawsuits over the last 30 years. That averages 133 lawsuits a year. This includes the suits against his companies, but the number still strikes me as high. He isn't Ford or General Motors.

The report states it took the numbers from USA Today which conducted this investigation and published this interactive database of Trump-involved litigation.

Now having read the report, I don't quite agree with the conclusion. It says only 6 or 7 of the 4,000 lawsuits in which Trump was "involved" were "free speech" lawsuits and it only examined these 6 or 7 cases. Given the number of negative articles about Trump that appear every day claiming he is fabricating something or other, and have for months, if he were really a "libel bully", I think the number of free speech related lawsuits would be much higher. One of the 6 or 7 free speech lawsuits was neither a libel nor defamation suit but a breach of contract suit against Bill Maher for failing to donate $5 million to charity after he made an offer to do so if anyone could provide a birth certificate showing Trump wasn't the son of an orangutan. Trump's lawyer supplied his birth certificate, and then sued when Maher didn't make the contribution. Trump later withdrew the lawsuit, and his lawyer said he would refile, but he never did. Several analysts predicted he had a zero chance of success. I suspect (but do not know) there was no refiling because Trump's lawyers told him there was a good chance he'd end up liable for Maher's legal fees.

Another of the 6 or 7 lawsuits examined by the ABA media committee's commissioned report was one brought by the Miss Universe organization, when Trump was one of the equity owners, against contestant Miss Pennsylvania who (ironically) claimed the contest was rigged. Miss Universe Org. (official name is Miss Universe L.P., LLLP) sued and won in arbitration when Ms. Pennyslvania failed to show up at the arbitration hearing (allegedly upon the faulty advice of her lawyer.) The report states that without hearing evidence to support the amount of damages, the arbitrator granted an award of $5 million to Miss Universe Org. Miss Pennsylvania later appealed to a federal Court but lost. (opinion here.) She then sued her lawyer for malpractice, won, and settled the case with Trump for $1 million. (Her father allegedly told the media not a dime came from her own pocket.)

In another article, USA Today reported:

A USA TODAY Network analysis of the lawsuits involving Trump and his companies includes only six in which the Trump team has formally claimed someone libeled, slandered or defamed him, and a few other court cases where he used other legal avenues to fight what someone said about him. At least one Trump target filed a counter-claim for harassment and won.

No one needs a libel suit except the lawyers who earn a living from them. Lawsuits zap time, money and energy more pleasantly spent on other things. I'll agree Trump seems particularly litigious, but a "libel bully"? If he's only filed fewer than 6 or 7 libel cases, I think that's an exaggeration.

On the other hand, consider his remarks in February at a campaign rally, as reported by Politico:

"One of the things I'm going to do if I win, and I hope we do and we're certainly leading. I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected," Trump said.

Bottom line: The ABA's problem seems to be the harsh terms used for Trump in the report, which it deems partisan, not the methodology or the conclusion. The ABA prides itself on protecting free speech. I think it should publish the report as written and let readers decide what to make of it. Trump calls his opponents worse things ("Crooked Hillary", "Lyin' Ted") every day.

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  • Display: Sort:
    Seems to me that determining whether (5.00 / 1) (#3)
    by Peter G on Tue Oct 25, 2016 at 09:30:22 AM EST
    someone is a "libel bully" would include assessment not only of the defamation suits the person has actually filed, but also that person's practice of threatening to file such suits, whether or not any suit is eventually filed. Such threats, if they come from someone with the resources to sue and who at least occasionally does sue, would be enough to intimidate and silence many potential critics, thus allowing the source of the threats to be fairly described as a "libel bully."

    since you bring it up, it just occurred (none / 0) (#5)
    by cpinva on Tue Oct 25, 2016 at 02:22:37 PM EST
    to me, wouldn't these types of suits, or threats of said types of suits, fall under the SLAPP provisions? essentially, that's what Mr. Trump is trying to do, curtail someone or thing's 1A rights, with no substantive basis for doing so.

    perhaps Ms. Merritt or one of the other attorneys could opine on that?


    I made no reference in my comment (none / 0) (#6)
    by Peter G on Tue Oct 25, 2016 at 02:40:30 PM EST
    to anyone named "Mr. Tr*mp." I was not speaking of anyone in particular, but just about an issue in general terms. That said, the scope of "SLAPP" suit (an acronym for "strategic litigation against public participation") laws varies from state to state. Here in PA, for example, the protection only applies to private suits designed to discourage public participation by individuals and community groups (the original scope) in zoning, development, environmental and land use issues.

    Anti-SLAPP statutes and Trump (none / 0) (#9)
    by Michael Masinter on Tue Oct 25, 2016 at 05:22:32 PM EST
    Florida has a narrow anti-slapp statute, but it would not apply to the statements by women who have accused Trump of sexual assaults. The key issue in those hypothetical lawsuits is the truth or falsity of the accusation; if the statements are false, and are defamatory, he will win, but if they are true, he will lose. As a public figure, Trump would have to prove the statements false. He would also have to prove the accuser had either knowledge of falsity or reckless disregard of a high probability of falsity, but those are not obstacles to a suit against an accuser since the accuser should know whether Trump did to her what she accused him of doing. Whether Trump actually files any of those threatened lawsuits may depend on his willingness to submit to discovery regarding his past conduct and his assessment of whether the defendant could afford or otherwise would have access to good defense counsel. My guess is that if he files suits, there will be pro bono offers to defend.

    having audited companies a hundred times (none / 0) (#1)
    by cpinva on Tue Oct 25, 2016 at 12:52:31 AM EST
    the size of Mr. Trump's, that is a YUUUUUUGE number of suits, for a company that small (make no mistake his total companies, combined, are in the peanut range). were he being audited by the IRS, that's an item that itself raises a ginormous red flag, for multiple reasons.

    I know/work with many lawyers, and concerns regarding professional risk are certainly valid, more so if you're a sole practitioner or small firm. it's time and money diverted from billable hour work, that pays the bill, plus the risk of losing.

    the ABA is no sole practitioner or small firm, they have 1,000's of members and, as you note, a large pile of money with which to defend themselves. I hope they change their mind, and release this report, and dare Mr. Trump to sue them. one problem though, how is going to find counsel having no conflict of interest? presumably, they are all members of the ABA.

    According to the USA Today chart (none / 0) (#2)
    by jbindc on Tue Oct 25, 2016 at 07:46:51 AM EST
    Trump has been involved in 14 "Media and Defamation" cases - 7 as a plaintiff and 7 as a defendant. He has won 1 as a plaintiff and lost 3 as a plaintiff. He has been involved in 5 cases in 2015 alone, let alone his career.

    And I don't think this counts the suits his wife (ves) have been involved with.

    Hopefully it's not libelous (none / 0) (#4)
    by jondee on Tue Oct 25, 2016 at 10:51:50 AM EST
    to mention, in passing, that Trump was rather closely mentored by Roy Cohn, who, if he could, would probably try to sue God for making him gay.

    Why bother publishing the actual report (none / 0) (#7)
    by Redbrow on Tue Oct 25, 2016 at 03:33:32 PM EST
    When the establishmnent's propagandists will do it for you without having to bother with actual facts, evidence and context?

    Will Kim Dotcom deliver as special birthday gift to hillary tomorrow?

    "Hillary Clinton signed my extradition request. I've signed her final chapter in politics."

    A tinfoil (none / 0) (#8)
    by FlJoe on Tue Oct 25, 2016 at 04:00:55 PM EST
    non sequitur there.

    Kellyanne has a new N word (none / 0) (#10)
    by Militarytracy on Tue Oct 25, 2016 at 05:23:58 PM EST

    I can't believe how much she makes me miss Baghdad Bob