NEW YORK ― On Oct. 12, The New York Times published the accounts of two women claiming that Republican presidential nominee Donald Trump inappropriately touched them, part of a string of sexual assault allegations stretching back decades.
Trump denied the charges, called the female Times reporter asking about them “disgusting,” and vowed to sue the paper if they ran. A week after publication, Trump hasn’t yet followed through on the threat.
A notoriously litigious figure, Trump and his companies have been involved in over 4,000 legal actions. But Trump “rarely follows through with lawsuits over people’s words,” as USA Today found in its analysis of the many claims. And during the 2016 election, he still hasn’t sued any news outlets despite making about a dozen threats.
The Times has been a target a few times in recent months. Trump tweeted in September that his lawyers wanted to sue the paper for “irresponsible intent,” which isn’t a legally defined term.
Earlier this month, a Trump attorney warned of “prompt initiation of appropriate legal action” in response to the Times publishing several pages of the candidate’s tax returns.
Though Trump’s threats have, so far, been empty, he’s received plenty of coverage for them and challenged an old journalistic convention in the process.
“When I was a cub reporter covering the courts, a wise editor once said we write about lawsuits when they are filed,” Adam Goldman, a Pulitzer Prize-winning Times reporter, tweeted amid a flurry of mostly anonymously sourced reports a week ago indicating that a lawsuit was imminent.
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But shortly after midnight, Trump campaign’s blasted out a letter ― not a lawsuit ― demanding the Times immediately retract the article and apologize. Failing to do so, wrote Trump attorney Marc Kasowitz, would leave his client “with no option but to pursue all available actions and remedies.”
On Thursday, Times assistant general counsel David McCraw responded that the paper would not retract the article and noted that Trump had already damaged his own reputation through his words and actions. McCraw’s defense of journalistic principles went viral.
Kasowitz did not respond to requests about the status of the lawsuit.
Trump may still sue the Times, but the anonymous ― and even on-the-record ― sources’ claims that the lawsuit was dropping soon clearly didn’t pan out.
The newsroom convention of waiting for a lawsuit to be filed before writing on it is a sound one, but it’s not a hard and fast rule. And it arguably doesn’t apply when it comes to a Republican presidential nominee threatening to sue a major media company. In the final weeks of the 2016 election, pretty much anything Trump or Democratic nominee Hillary Clinton say could be deemed newsworthy.
But given how Trump’s played the press before, his legal threats ― and sources who are only willing to relay them anonymously ― demand skepticism. And amplifying such claims runs the risk of helping intimidate journalists covering such allegations and women considering speaking out, as the Times’ Michael Barbaro noted.
Trump’s threats also require context. As a public figure, he needs to meet a high legal threshold in proving actual malice on the part of journalists covering him. That’s one reason a suit against the Times seem unlikely.
In addition, Trump could become vulnerable to having to answer many uncomfortable questions about himself in the discovery phase of a trial, a position he presumably doesn’t want to be in.
That was the case in his suit against Timothy O’Brien, a former editor at the Times and The Huffington Post who wrote a 2006 biography of the businessman. O’Brien challenged Trump’s claims about his net worth, a subject that’s consistently rankled the self-described billionaire. Trump endured a deposition in which he ended up uttering a litany of falsehoods and acknowledged that his net worth “fluctuates” depending not only on the market, but his “own feelings.”
O’Brien acknowledged a major party nominee making legal threats is newsworthy, though cautioned that the media needs to frame Trump’s words in the context of his “long history of gesturing.”
“It’s just part of his tool kit ― the saber rattling,” O’Brien told HuffPost last week. “He’s done it throughout his business career when he feels like deals aren’t going his way.”
“By and large,” he added, “it’s just a burning pile of empty threats.”
O’Brien, more versed than most when it comes to Trump’s legal threats, is keeping track of this latest one.