Showing posts with label Donald Trump. Show all posts
Showing posts with label Donald Trump. Show all posts

Monday, November 9, 2020

All politics is local

This Ayrshire Daily News, Scotland, headline refers to the Trump Turnberry Golf Courses.  The headline caught the attention of BBC's Andrew Marr Show and was shared with me by BBC viewer and friend of the blog, Siobhan Lavery.

Trump Golf operates two properties in Scotland and one in Ireland.  The club at Aberdeen lost a fight against a nearby windfarm in the UK Supreme Court in 2015.  The New York Times Trump tax revelation caused Business Insider to mark the clubs among Trump's "most failed businesses," while seeming over-valuation of the clubs figures in New York prosecutors' ongoing investigations of Trump financial disclosures (Politico).  The Scotland properties also garnered unwanted news coverage this year for their receipt of coronavirus government bailouts (Guardian).  Nevertheless, Aberdeen recently authorized construction of a second club (BoingBoing).

Wednesday, September 30, 2020

Court: 'Hyperbole,' not slander, in Fox News monolog about Cohen 'catch and kill' payment to protect Trump

McDougal in 2007
(Sam Posten III CC BY-SA 2.0)
A defamation lawsuit by Karen McDougal, former Playboy model and alleged extra-marital consort of President Donald Trump, against Fox News was dismissed last week in federal court in the Southern District of New York.

The case arose in connection with allegations that Trump and lawyer Michael Cohen cooperated with the National Enquirer to "catch and kill," that is pay for and suppress, potentially damaging stories about Trump's personal life.  Relying on allegations in the complaint (citations and notes here omitted), the court summarized the background as favorable to the plaintiff:

Ms. McDougal ... became the subject of front-page stories following the 2016 United States Presidential Election based on allegations that she had engaged in a year-long affair (from 2006-2007) with now-President Trump.

The allegations of an affair arose during the 2018 investigation and guilty plea of Mr. Trump’s lawyer and aide Michael Cohen on charges that he violated federal campaign finance laws. Specifically, law enforcement investigators and the media revealed that in the months leading up to the 2016 election, American Media, Inc. (“AMI”)—the company behind National Enquirer and whose CEO, David Pecker, allegedly is close with the President—had paid Ms. McDougal $150,000 in exchange for the rights to her story about the affair with Mr. Trump. AMI then assigned the rights to the story to a corporate shell entity formed by Mr. Cohen allegedly at Mr. Trump’s direction, and in exchange for the assignment Mr. Cohen paid AMI $125,000.

During the Government’s investigation of these payments, Mr. Cohen and Mr. Pecker both revealed that Mr. Trump had directed the AMI payment to Ms. McDougal in the first place, and then personally reimbursed the payments himself, all as part of an effort to avoid having the allegations affect the 2016 election. Mr. Trump initially had denied knowledge of any payments to McDougal, but by December 2018, had admitted to the payments, arguing that they were made on the advice of Mr. Cohen and that any illegality was Cohen’s fault. Mr. Cohen ultimately was charged with and pleaded guilty to violations of campaign finance laws.

Carlson in 2018 (Gage Skidmore CC BY-SA 2.0)
On Tucker Carlson Tonight, on Fox News, December 10, 2018, Carlson said, as quoted in the court opinion:

"Remember the facts of the story. These are undisputed. Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. Now, that sounds like a classic case of extortion.

"Yet, for whatever reason, Trump caves to it, and he directs Michael Cohen to pay the ransom. Now, more than two years later, Trump is a felon for doing this. It doesn’t seem to make any sense.

"Oh, but you're not a federal prosecutor on a political mission. If you were a federal prosecutor on a political mission, you would construe those extortion payments as campaign contributions."
McDougal sued for slander per se over the accusation of extortion.  The court dismissed the case on Thursday on two grounds.  First, the court ruled that Carlson's statements were protected by the First Amendment as hyperbolic comment on politics.  Second, the court ruled that McDougal had failed to plead a case that could meet the high bar of actual malice, i.e., that Carlson knew the assertions to be false or spoke in reckless disregard of truth or falsity.

The case seems soundly decided, though has curious implications for what passes as journalism today.  As Slate observed, the former holding accepts the argument of Fox News that reasonable viewers of Carlson's show are "in on the gag[:] ... [that] Carlson is not 'stating actual facts' but simply engaging in 'non-literal commentary'[;] ... that given Mr. Carlson’s reputation, any reasonable viewer 'arrive[s] with an appropriate amount of skepticism' about the statements he makes."  The court concluded, "Whether the Court frames Mr. Carlson’s statements as 'exaggeration,' 'non-literal commentary,' or simply bloviating for his audience, the conclusion remains the same—the statements are not actionable."

The case is McDougal v. Fox News Network, LLC, No. 1:19-cv-11161 (S.D.N.Y. Sept. 24, 2020).  The case was decided by U.S. District Judge Mary Kay Vyskocil, a New York City corporate litigator whom President Trump appointed to the bench.  For the related subject of "catch and kill," I added links to McDougal under the Clifford cases at the Trump Litigation SeminarRead more about Tucker Carlson in the Columbia Journalism Review (Sept. 5, 2018).

Saturday, September 26, 2020

Mary Trump sues President, family, alleges three decades' fraud in oversight of her father's estate

Author of Too Much and Never Enough (2020), Mary L. Trump on Thursday sued her uncle, the President, and her aunt, retired federal judge Maryanne Trump Barry, for ongoing fraud and breach of fiduciary duty in oversight of the estate of Mary's father, Fred Trump, Jr., since his death in 1981.

The case comes just two months after a failed bid by presidential brother Robert S. Trump to enjoin publication of Mary's book, and one month after Mary's release of audio recordings in which her aunt condemned the President. Considering the First Amendment and the futility of last-minute injunction, the court in the earlier case refused to enforce the confidentiality provisions of a family agreement that settled litigation arising from the deaths of Robert, Maryanne, and the President's parents, Mary's grandparents, Fred and Mary Anne, in 1999 and 2000. Robert S. Trump died on August 15, 2020. Try to keep up.

To navigate the statute of limitations, Mary Trump alleges that she only became aware of the fraud upon the publication of investigative journalism by The New York Times in 2018 (pay wall; about).  Links to the dockets, the complaint in the latest Mary L. Trump case, and the court decision denying injunction in the Robert S. Trump case are now posted at the Trump Litigation Seminar blogsite, a project of The Savory Tort. HT @ TLS students Spencer K. Schneider and Richard Grace

Saturday, September 12, 2020

Defamation case against Trump fits woeful pattern, while DOJ defense is defensible, if disconcerting

Notice of Removal in Carroll v. Trump
The recent news (e.g., N.Y. Times) that the Department of Justice (DOJ) will defend the President in the defamation suit arising from sexual-assault allegations by E. Jean Carroll has caught the interest of both my Torts I class and my Trump Litigation Seminar (TLS).  The DOJ's announcement manifests on the docket in removal of the case from the New York Supreme Court to the U.S. District Court for the Southern District of New York.  Links and key court documents are now posted atop The Savory Tort's TLS blogsite.

The strategy of using a sexual-assault denial and accompanying charge that the accuser is a "liar" as the basis for a defamation suit against the alleged perpetrator, i.e., Carroll v. Trump, is now, unfortunately, a familiar feature of our high-profile tort-litigation landscape.  It might have been Bill Cosby who committed the pattern to popular culture's long-term memory.  The Cosby case came complete with counterclaims, making the defamation dispute the dueling ground for truth and falsity.

It's unfortunate, because the tort of defamation was not designed to be a truth-finding mechanism.  Historically, truth wasn't even a defense; that's a modern artifact inferred by the freedom of speech.  The flaws in our defamation law are legion and one of my favorite subjects; one that matters here is that defamation is rarely capable of delivering exoneration, much less satisfying any of a plaintiff's legitimate aims.

Among reforms of defamation that have been proposed over the years are mechanisms to ferret out and publicize truth, rather than focusing on the plaintiff's alleged injury or the defendant's asserted rights.  Though not always well crafted, laws that incentivize correction or settlement over protracted litigation at least aim in the right direction.  Regrettably, reform of defamation has been hamstrung for decades by the Supreme Court's well intentioned but ultimately improvident constitutionalization of defamation in the 1960s and 1970s.  I hope one day, we'll wade our way out of that morass.

Anyway, on the question of the DOJ's intervention, there's a curious conundrum about Carroll v. Trump.  The DOJ position is that Trump was acting in the scope of the office of the President when he denied Carroll's sexual-assault allegations.  We would, after all, hope that any President would deny such allegations, and we would have to admit that the truth of the allegations bears on his fitness for office.  Thus, the DOJ reasons, it must represent the position of the President.  The bitter pill for Trump opponents to swallow is that that's probably right.

The kicker comes in that Trump's denial is only presidential if he's telling the truth.  If he did what Carroll alleged, then the operative facts of the case occurred before Trump was elected.  His later denial then feels more like the mere pleading of a private defendant in an ordinary civil suit.  You know, one in which we might debate what the meaning of is is.  So the rationale for defense by DOJ is predicated on the very question at issue in the litigation.  For DOJ to take the President's denial as true, for now, is a fair, if uncomfortable, choice.  If one day the court rules in Carroll's favor, though, maybe we can send the legal bill to the former President.

Thanks to TLS student Ricardo Serrano and Torts student Paul McAlarney for helping me think about this one.

[UPDATE Oct. 27, 2020.]  The court denied the government's motion to substitute party on Oct. 27, 2020.  See Special Coverage at the Trump Litigation Seminar.

Wednesday, May 27, 2020

Trump litigation in legal education: Come for the car wreck, stay for the seminar

Coinciding with the U.S. presidential election in the fall semester of 2020, August to November, I'll be teaching a 15-student seminar in "Trump Litigation."

Donald J. Trump is a phenomenon in U.S. litigation, principally litigation over obligations (contract and tort).  He and his enterprises are infamously litigious; perhaps the most comprehensive analysis of Trump litigation is USA Today's remarkable compilation of data from more than 4,000 cases, by investigative journalist Nick Penzenstadler and team.  This vast body of litigation offers at once a deep sea in which one can dive into the doctrine of torts, contracts, and civil procedure, and an opportunity to ask the big questions I relentlessly press on first-year law students, such as whether the common law litigation system represents a pinnacle in human achievement in dispute resolution, or a disastrous failure.

No one knows now whether Donald Trump will be "a thing" after January 2021.  So I thought this fall would be an optimal time to capitalize on the Trump phenomenon as a teaching opportunity.  Here is the short course description:
Trump Litigation Seminar.  Investigation of civil court cases involving Donald Trump, and his family and businesses, in personal rather than public capacities. In tandem with the 2020 election cycle, this seminar invites students to examine public litigation files to study advanced doctrine in obligations law, to witness litigation skills and strategy, and to analyze public policy in American civil dispute resolution. Final paper.
As described, this seminar is calculated to be something of a capstone experience for third-years, comprising threads of doctrinal study, litigation skills, and discussion of theory and policy.

As I previewed to co-panelists at the Law and Society Association and the Southeastern Association of Law Schools conferences in 2019, my plan was to create an open-source course module that would be ready in summer 2020 for adoption, in part or in whole, by faculty in law, political science, mass communication, or other areas, exploiting the same fall time frame to explore Trump litigation with students.

Unfortunately, that summer project won't happen.  The University of Massachusetts Dartmouth found itself in a budget crisis after refunding student fees for room and board amid the coronavirus lockdown.  To help fill the hole, UMass Law canceled faculty compensation for summer 2020.

I plan still in the fall to use a blog page, ancillary to The Savory Tort and in conjunction with Dropbox cloud storage, to furnish resources for my seminar students.  To the extent that there might be any utility in those materials for anyone else, I am making the page public.  I will adapt and populate the page as I prepare the materials.  I have invested considerable effort in amassing and organizing litigation files on a range of key Trump cases, and it seems a shame to hoard them for my class, when they might be useful to others, whether for teaching, research, reporting, or just civic interest.

My focus here, again, will be to support my seminar, not, as originally planned, to support an open-source course module.  So I reserve the latitude to post what I want when I want to, and to make changes as it suits the needs of my class.  The page probably will undergo a lot of changes between now and when class starts in the second half of August, and more yet as the class develops in the fall.  That said, if you are a teacher, researcher, or journalist in need of something it looks like I might have but have not posted, or you have questions about what I've posted, please do reach out, and I'll help if I can—my availability being spotty while away from my desk until August 17.

Welcome to the Trump Litigation Seminar.

Monday, June 3, 2019

Teaching Trump: Four Thoughts for Faculty

Saturday morning, at the annual meeting of the Law and Society Association (LSA) in Washington, D.C., I served on a panel about "Teaching Law in the Trump Era."  My thanks to panel chair John Bliss, University of Denver Sturm College of Law, Swethaa S. Ballakrishnen, UC Irvine School of Law, and other founders and leaders of the new LSA Collaborative Research Network #19 on legal education, for organizing this program.  Here is the panel abstract:

The Trump presidency has reportedly attracted a new wave of law school applicants who are motivated by issues ranging from sexual assault, to racial justice, to the rights of immigrants, to the basic foundations of the rule of law. In this context, how do U.S. law teachers address legal and political headlines that many faculty and students find disconcerting? This session offers diverse perspectives on this question from accomplished law faculty who teach a wide range of legal curriculum.
Trump in the classroom.  Literally.  White House photo.
For my bit, I focused on President Trump-related materials I used to teach defamation in Torts II in March 2019.  In class, I assigned as reading the complaint in Zervos v. Trumpbefore the New York Appellate Division at the time—alongside Justice Thomas's opinion on cert. denial in McKee v. Cosby.  The pairing of a pleading and a scholarly judicial opinion allowed a study first of tort doctrine, and then of constitutional and policy dimensions, all the while with a running contemporary thread of "#MeToo," which ran back to our fall 2018 study of intentional torts.  Outside of class, in review sessions, I used Melania Trump's 2017-settled complaint against blogger Webster Tarpley (Variety).  These "Trump cases" afford ample opportunity to explore skills and practice collateral to the law of torts, such as litigation strategy, legal professionalism, and client counseling.

Professor Bliss suggested that we fashion our presentations around student feedback and reactions to Trump-related materials.  To that end, I solicited input from my class (and from colleagues in academic support).  Five students generously took time from their after-exams pursuits to oblige with deeply thoughtful, sometimes moving, and thoroughly informative feedback.  I am grateful to them.  I extracted their words, anonymized, for use in my panel time.  I won't reiterate them here as to further protect their anonymity. But I'll share four conclusions about "teaching Trump," drawn from this feedback. 

(1) Plan well and stay on course.  Because this content tends to evoke strong emotions, it is important for the teacher to map out an agenda about where the class discussion should go, in consonance with what the materials offer.  Then the class must be kept on task.  This might require more involved moderation of class discussion than is the norm for some teachers.  Students will sometimes make observations driven by emotion and supposition, and that's OK.  But those observations need to be responded to with channeling into constructive analysis.  If for example a student says that the plaintiff is grubbing for money, that's a great springboard for legitimate questions, without having to challenge or verify the premise: How does tort doctrine safeguard, or not, against disingenuous claims?  What are the incentives or impediments for plaintiffs and their lawyers, born of transaction costs?  How does a lawyer counsel a client about uncertainty of recovery?

(2) Avoid assumptions and keep an open mind.  The teacher should not suppose that she or he knows what the students are thinking, whether as a group or to an individual.  Someone in the class is a Trump voter and believes he is America's only way forward.  Someone else regards Trump as a source of post-traumatic stress.  They're not always showing you these reactions, for various reasons.  And they're not necessarily who you think they are. Take care not to make assumptions about where people stand.  One student who wrote to me really forced me to turn over the immigration "wall" issue in my own mind, and I learned a great deal from her different perspective.  Isn't the great thing about being a professor that continuing education is part of our job?

(3) Model professional skills.  When a teacher leads a law school class, students are learning doctrine, but they're also "meta-learning" lawyering skills such as leadership and dispute resolution.  How a teacher manages conflict in the class and moderates discussion will be as important and memorable a lesson for some students than the subject matter being taught.  For this reason, teachers need to be deliberate in and thoughtful about pedagogical methodology.

(4) Lighten up.  Yes, our content in law school can be heavy.  We have to talk about things in the classroom that reveal the absurdity of "trigger warnings," because life doesn't come with a warning label, and law is about life.  But it is possible—if hard—to engage with heavy issues and to do so with a light heart.  Guidance can be drawn from some recent developments in comedy—think Hannah Gadsby and Ellen DeGeneres—to show that humor can be accomplished without it being at anyone's expense.  Don't get me wrong; I love a good insult comic.  Just not at the front of the classroom.  One student who wrote surprised me with the observation that a light joke I made diffused tension over the fraught subject and made students feel comfortable participating.  Now if only I could remember what I said.

These conclusions entail work for any teacher, no matter how experienced.  I am far, far from excellent in realizing these lessons.  But feedback from my students has given me goals.

Thanks also to excellent co-panelists at LSA, and to all the teachers and scholars who contributed to the roundtable discussion.  I have appropriated many of their insights and ideas for further exploration and experimentation.  Co-panelists were Scott Cummings, University of California, Los Angeles; Rashmi Goel, University of Denver Sturm College of Law; and Gwendolyn Leachman, University of Wisconsin Law School.




Attention faculty!

 Dean Peltz-Steele and I are collaborating to produce an open-source resource for faculty in law and related fields to teach law and policy through "Trump case" materials.

Stay tuned for more information about "Trump Law."



Wednesday, February 20, 2019

Remembering 'very unique,' 'extremely historic,' pre- post-literate politics

Comedic media have recently lampooned with delight the President's sing-song description of litigation over the "national emergency" at the border.  (My favorites are Trevor Noah's "Guitar Hero" take and Stephen Colbert's "Torah reading."  Jake Tapper told Colbert aptly that Trump's description might actually prove correct.)  Then Bernie Sanders entered the race and admonished media that if his ideas were once fringe, they are no more.  Access to higher education always has been a key part of his platform.

This confluence of events made me nostalgic for the quixotic character of the savant President Bartlett of The West Wing (1999-2006).  To be clear, this is not a political statement: I'm not condemning Trump, nor endorsing Bernie, nor, least of all, saying anything about the politics of Martin Sheen, Rob Lowe, and Allison Janney.  I just wanted for a moment to set politics aside and revel in the appeal of a President who appreciates good writing and the power of language.  So I looked up this video introduction to West Wing season 2, episode 9, "Galileo V," aired November 29, 2000—ten months before September 11.  O simpler times and innocent idealism.


Hat tip to Kayla Venckauskas, UMass Law '19—editor-in-chief of the UMass Law Review, 2018 Rappaport Fellow, ALDF scholarship winner, and survivor extraordinaire of my 1L Torts class—for reminding me of this gem.  (If any of my media law colleagues still want to jump into this year's Law and Media Symposium on March 28, get in touch ASAP, and I'll do my best to hook you up.)