“It was the best of times, it was the worst of times…”

Charles Dickens, A Tale of Two Cities (1859)

Marshall H. Tanick

The criminal “hush money” case pending against former President Donald Trump in New York City has sucked up much of the air surrounding the legal travails in which he is embroiled.

The case of misdemeanor and felony charges for disguising as legal fees the $130,000 paid to adult film star and director Stormy Daniels right before the 2016 presidential election is not scheduled for its next court hearing until December, a nine-month gestation period following his highly publicized arraignment and not-guilty plea earlier this month.

But other criminal investigations that could lead to multiple prosecutions are in progress. They include an ongoing inquiry into Trump’s business practices in New York state; his alleged attempt to subvert the voting in Georgia in the 2020 election; the taking and maintenance of classified and other government documents stashed in his Mar-a-Lago residence in Florida; as well as his role in the Jan. 6, 2021, insurrection at the U.S. Capitol, along with some other emerging issues regarding the former president’s pre-White House business activities and his post-presidential fundraising practices.

Each, some, or none of them could result in additional criminal prosecutions, possibly running parallel with, or even preceding, the “hush money” case.

Meanwhile, a pair of other Trump-related civil cases have been teed up and ready to proceed.

One of them, although not directly involving him, has gained a great deal of notoriety: parallel litigation by a pair of voting machine companies against Fox News for dissemination of falsehoods regarding their roles in the 2020 election. He is directly involved in the other, actually two related cases, in which he is a named defendant sued by a woman who claims to have been sexually assaulted and verbally maligned multiple times.

Each of these legal matters is premised, in whole or in part, on defamation claims.

Dominion defamation

One lawsuit, brought by Dominion Voting System, against Fox News was the subject of the highly publicized settlement last week in Dominion Voting Systems, Inc. v. Fox News Network, LLC, 21-C-03- 257 EMP (Del. Super. Ct. 2021) for a whopping $787.5 million, a large sum but only a splash in the bucket of Fox’s reported $4 billion asset base.

Since much of the payment may be covered by Fox’s insurance, it might not make much of a permanent dent in the company’s bottom line, although a shareholder derivative lawsuit filed in Delaware on the eve of the scheduled trial asserts otherwise. Further, any financial loss can probably be made up for by revenue from its crop of loyal advertisers like Minnesota-based bedding manufacturer My Pillow, whose owner Mike Lindell happens to be a defendant in another pending defamation lawsuit by Dominion.

The settlement of the defamation lawsuit by Dominion, a supplier of voting machines, may be a forerunner for a parallel $2.7 billion lawsuit brought by Smartmatic, a voting software supplier, alleging that Fox disseminated multiple falsehoods that the voting devices fraudulently cost Trump the election in 2020.

The two voting machine companies have also brought similar lawsuits against a bevy of others, including Trump’s post-election “Big Lie” lawyers, including Rudy Giuliani and Sydney Powell, who appeared on Fox news broadcasts, as well as Minnesota-based pillow manufacturer and heavy spending Fox advertiser, Lindell.

There also has been spin-off litigation, including a lawsuit brought by a former Fox producer who is suing the network based on the claim that she was coerced by its lawyers to give false testimony in the litigation.

One other case was also settled below radar less than two weeks before the Dominion denouement. Brought by a Venezuelan businessman accused on Fox of orchestrating a process for voting machinery to “flip” votes cast for Trump to Joe Biden, the lawsuit, Khalil v. Fox Corp., 21 Civ. 10248 (S.D.N.Y. 2021) was settled by the network for an undisclosed amount.

These varied cases, like the Dominion one, turn on the establishment of “actual malice,” meaning knowing falsity or reckless disregard for the truth, under the standard established nearly six decades ago in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which is applicable to claims by corporate entities, as well as matters of “public concern.”

The Times doctrine, incidentally, is facing legislative and, perhaps, judicial challenges these days. Sarah Palin, the former governor of Alaska and unsuccessful 2008 vice presidential candidate on the Republican ticket, is seeking to overturn the dismissal of her lawsuit against the Times on grounds of absence of “actual malice” in a case now pending in the 2nd Circuit in Palin v. New York Tine Co., No. 22-558(2nd Cur. 2022). It asserts that the New York Times standard should be eviscerated or relaxed, a position that two of the judges on the Supreme Court, Clarence Thomas and Neil Gorsuch, have indicated they favor.

The state of Florida is in the process of enacting legislation that would effectively dismantle the New York Times doctrine there, a proposition championed by its governor, Ron DeSantis, an undeclared candidate for the GOP presidential nomination in 2024.

The most potent defense, which undoubtedly will be heard at any cases that actually make it to trial, is a form of “opinion” claim. It is not that the broadcasters were asserting opinions, but that they were reporting opinions of others that were constitutionally protected free speech under both the First Amendment of the U.S. Constitution and the parallel provision of Article 1, Section 8 of the New York Constitution, the jurisdiction where Fox has its headquarters. That defense hinges on a New York case, Brian v. Richardson, 211 A.D.2d 413 (NY App. Ct. 1995) in which the state’s highest court held that dissemination of false statements made by others is not actionable unless it is “apparent” to a “reasonable” observer that the opinions do not constitute “demonstrable fact statements.” In the now-settled Dominion case and the others following in its legal footprints, Fox argues that this principle applies to its broadcasting of matters of significant public interest and that it was merely a conduit for those subjective statements without endorsing them.

The closest parallel in Minnesota law is a version of the “fair and accurate” reporting privilege, as reflected in Larson v. Gannett Co., Inc., 940 N.W.2d 120 (Minn. 2020) cert. denied (2020).

That case, settled by the parties after remand by the Minnesota Supreme Court, stands for the proposition that a fair and accurate account of statements made by law enforcement personnel about alleged criminal behavior, which later was not substantiated, does not constitute actionable defamation.

Carroll cases

The other lawsuit, actually a pair of them, also involve defamation along with other issues. They are brought by E. Jean Carroll, a New York-based journalist and author, who maintained in a book that she was subjected to a sexual assault in a New York City department store dressing room at some unspecified time in the mid-1990s by Trump, long before he ran for president. That lawsuit claims that he defamed her when he stated that Carroll fabricated the accusation to sell a book she had written, while he was in the White House in response to questions from reporters.

That case is currently in limbo, pending a determination by the 2nd U.S. Circuit Court of Appeals about whether the former president is immune from the defamation claims because the statements were made in the course of his presidential duties while he was a federal employee, which would bring the lawsuit under the ambit of the Federal Tort Claim Act, 28 U.S. § 171, which bars defamation claims against Federal employees.

But there is a related lawsuit that is scheduled for trial Tuesday, April 25, a week after the Dominion case was to start but then settled. Unlike the Dominion case, which was venued in state court in Delaware, where Fox has its corporate headquarters, the Carroll case, brought as a matter of diversity of citizenship, will take place in federal court in Manhattan, not too far from where Trump was arrested and arraigned earlier this month.

Initiated late last year, it asserts sexual assault, a tort cause of action revived by enactment of the state’s Adult Survivors Act extending the statute of limitations to resuscitate old claims. That is coupled with a claim of defamation grounded on statements that Trump made on social media, including his own Truth Social, after he left the White House, in which he called her assault assertion a “hoax” and a “lie” and said she is engaged in a “scam” and a “con job,” among other deprecations. His “opinion” defenses have already been deemed inapplicable by the trial judge who is prepared to start the case in front of a Manhattan federal jury unless, like the Dominion case, a last-minute settlement occurs.

Minnesota matters

Carroll’s assault claim under the New York revival statute resembles the way Minnesota treats some similar matters.

The general statute of limitations for sexual assault here is six years under Minn. Stat. §541.07. But a decade ago, the Legislature extended the statute of limitations period for individuals who claim assaults that occurred before May 23, 2013, while they were under 18. The state criminal statute of limitations for most criminal assaults, first through fourth degree, was extended under Minn. Stat. § 609.342-345 to nine years and eliminated for those occurring after September 2021.

Carroll’s defamation claims against the ex-president are similar to those asserted by seven women against disgraced entertainer Bill Cosby, who publicly accused them of lying after they claimed that he sexually assaulted them. The women’s defamation claims were settled by Cosby for an undisclosed amount in 2019, a couple of years before his criminal conviction for sexually assaulting another woman was overturned by the Pennsylvania Supreme Court in Cosby v. Commonwealth, 252 83d 109 (Pa. 2021).

It remains to be seen how the Carroll litigation will play out against the former president, and what will happen in the subsequent suits against Fox relating to the ex-president’s “Big Lie” electoral remonstrations.

These cases reflect the continuing tribulations that the former president faces in the civil arena, notwithstanding the criminal proceedings. By the time they are finally concluded, Trump may feel like the main character, Sydney Carton, in Dickens’ classic “A Tale of Two Cities” novel about the French Revolution: “It is a far, far better thing that I do than I have ever done; it is a far, far better rest that I go to than I have ever known.”

PERSPECTIVES POINTERS

Standards for “actual malice” in defamation litigation