President Donald Trump has been engaging in a protracted war against large media outlets since the initial launch of his 2016 presidential campaign. The incumbent president and presumed 2020 Republican nominee has had no qualms with accusing The New York Times, The Washington Post, and CNN, among other major news outlets, of harboring a bias against him, his campaign, and his administration. This degree of hostility from a U.S. president towards the press has little precedent, and in the past year, the attacks have become more frequent and aggressive. In 2019, Trump deployed the phrase “fake news” over 250 times, and his declamations have begun to include threats of “retribution.” Trump is now making good on this promise: his re-election campaign has sued three separate major media outlets over the course of two ten days.

Two weeks ago, Trump’s re-election campaign sued The New York Times for libel. Trump has frequently threatened to sue media organizations, but this lawsuit, which was filed in New York State Court against the Times’ publication of an op-ed essay in March 2019, constitutes a rare instance of the President following through. The article in question, headlined “The Real Trump-Russia Quid Pro Quo,” was written by Max Frankel for the Opinion section of the Times, which operates separately from its newsroom.

Trump alleges that the article falsely asserted the presence of a “quid pro quo” between Russian officials and his 2016 campaign. In the article, Frankel wrote:

“There was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy because they had an overarching deal: the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy, starting with relief from the Obama administration’s burdensome economic sanctions.”

Frankel argued that, rather than explicit and illicit collusion between the campaign and Russia being the necessary index of Trump’s implication in a quid pro quo, it is enough to point out the “obvious bargain” between the two parties whereby sanctions relief would be exchanged for “dirt” on Hillary Clinton. Although “the promise of policy changes was not in itself illegal,” the entire affair was surrounded by secrecy and lying, as when “Michael Flynn lied to the F.B.I. when he denied discussing sanction relief with the Russian ambassador.” To Frankel, this was because the collusion consisted not of election sabotage, but of policy promises which, although legal, would have reflected extremely poorly on the Trump campaign were they to have been publicly pledged before he went into office. After all, though Flynn and company were “already in transition to power,” the policy commitments were “directly undermining Mr. Obama’s still active and punitive diplomacy against Mr. Putin.” Frankel contends that such commitments and pledges were “clearly offensive to the American convention that we have only one president at a time.”

In short, rather than any “detailed electoral collusion,” Frankel wrote that there was only an unspoken, but clearly communicated, “overarching deal” between the Trump campaign and Russia. President Trump’s lawsuit argues that this conclusion is false, and that the Times’ publication of the essay represents a move taken despite “knowing it would misinform and mislead its own readers.” The lawsuit also mentions the “extreme bias against and animosity” of The Times towards Trump’s re-election campaign, although it does not cite any additional evidence for this.
The Times responded to these allegation on February 26. In a statement, Eileen Murphy, a spokeswoman for The Times, said that “The Trump campaign has turned to the courts to try to punish an opinion writer for having an opinion they find unacceptable. Fortunately, the law protects the right of Americans to express their judgments and conclusions, especially about events of public importance. We look forward to vindicating that right in this case.” President Trump reasserted his criticism of Frankel’s op-ed at a White House news conference. “It’s beyond an opinion. That’s not an opinion. That’s something much more than an opinion. They did a bad thing, and there’ll be more coming.”

A lawyer for the American Civil Liberties Union (ACLU), Brian Hauss, expressed skepticism about the campaign’s chances of succeeding in the suit, noting that “a publisher cannot be held liable for commentary based on public facts.” Frederick Schauer, a law professor at the University of Virginia, explained that, in order for a public figure to successfully sue for libel, they must demonstrate that a publisher either had knowledge of the disputed statement’s falsehood, or had “actual suspicion of falsity and went ahead anyway.” To prove that in court, said Schauer, “is virtually impossible.”

On March 3, a week after the lawsuit against the Times was filed, Trump’s re-election campaign sued The Washington Post, also for libel. This lawsuit was filed in U.S. District Court in Washington, and concerns opinion pieces published in a Post blog called The Plum Line. Both articles accuse the 2016 Trump campaign of inviting help from foreign governments. One was written on June 13, 2019 by Greg Sargent, and the other by Paul Waldman on June 20.

Kristine Coratti Kelly, a spokeswoman for The Post, said, “It’s disappointing to see the president’s campaign committee resorting to these types of tactics, and we will vigorously defend this case.” Theodore J. Boutrous Jr., a lawyer at Gibson Dunn, said of the lawsuit, “It’s all part of the overarching war on the press.”

Both lawsuit were filed on behalf of the Trump campaign by a lawyer named Charles J. Harder, who “has a reputation for waging aggressive legal battles against prominent news organizations,” The Times reported in its coverage of the suit. Harder has previously represented Hulk Hogan in a suit against Gawker Media and Melania Trump in a case against The Daily Mail.

Only three days after filing its suit against the Post, on March 6, the Trump re-election campaign sued CNN for libel. This lawsuit was filed in U.S. District Court in Atlanta, and as with all others, concerns a 2019 opinion piece suggesting ties between the Trump campaign and Russia. This suit against CNN objects to a June 13, 2019 opinion piece by Larry Noble. The three suites use identical language to describe the “systematic pattern of bias” against Trump that the campaign believes the pieces reflect.

Legal experts consider the libel lawsuits unlikely to succeed. The law, informed by the First Amendment’s guarantee of the free exercise of speech by the press, has afforded broad protection to journalistic coverage of public figures, especially by opinion writers. Boutrous Jr. said the lawsuit “flies in the face of basic First Amendment doctrine.” Libel, or defamatory and false published statements, form an exception to the protections of the First Amendment, but the Trump campaign will most likely have a difficult time establishing that the contested editorials are, in fact, libel. Nonetheless, Trump’s latest attack on the press outlets that he considers to be political opponents is an unprecedented move on his part, and such a battle may become cause for concern in the continued struggle for the maintenance of the freedom of the press.