Soon thereafter, women starting coming forward with allegations that Trump had acted inappropriately toward them. At the present time, 11 women have made claims about his alleged behavior. Trump has threatened that he will sue the women after the election. The nature of his claim against them is not yet clear, but likely the cause of action would be defamation, which is harm to one’s reputation. Trump also threatened to sue the New York Times for publishing an article featuring two women accusing him of touching them inappropriately.
Defamation is a communication that harms the reputation of another, so as to lower him in the opinion of the community, or to deter third persons from associating or dealing with him. For example, those communications that expose another to hatred, ridicule or contempt, or reflect unfavorably upon their personal morality or integrity, are defamatory. One who is defamed may suffer embarrassment and humiliation, as well as economic losses, such as loss of a job or the ability to earn a living.
However there are a number of defenses and privileges to defamation. The most important privilege is truth. If your remarks hurt someone’s reputation, but your statement is true, you are absolutely privileged. An absolute privilege cannot be lost through bad faith or abuse. So even if you maliciously defame another person, you will be privileged if the statement is true. Truth is an absolute privilege because society values truth more than it values protection of people’s reputations.
Public figures, such as celebrities or public officials have a much higher burden to bear to prevail in a defamation action. They must prove that the defendant acted with “actual malice.” Actual malice is a legal term that means that the defendant intentionally defamed another or acted with reckless disregard of the truth.
Plaintiffs find it difficult to prove that a defendant acted with actual malice. That is why so few celebrities bother suing The National Enquirer. To successfully defend itself, the Enquirer need only show that it did not act with malice. In other words, the newspaper can come into court and concede that its report was false, defamatory and the result of sloppy and careless research. However, unless the celebrity can prove that the Enquirer acted with actual malice, the court is obliged to dismiss the case. Mere negligence is not enough for liability. So, a lawsuit against the New York Times would be particularly difficult for Trump to win since the Times only needs show that its reporting was not reckless.
Trump faces a dilemma. He has claimed his comments on the bus were “locker room talk,” and that he never actually engaged in the activities he bragged about. However, this is a double- edged sword for him. If he had never engaged in these activities, then he is a braggart that was lying to Billy Bush, and thus a jury may find his testimony suspect on other matters. On the other hand, if he was telling the truth, then he has admitted to sexual assault. Either way, he has a problem. Under the first scenario he is an admitted liar, or at least an exaggerator, and under the second he has sexually assaulted women. So, the most important witness against Trump may well be Trump himself.
If he files lawsuits, the women will be able to engage in discovery. Their attorneys will be able to depose him under oath and ask him all kinds of uncomfortable questions as well as subpoena relevant documents to support their defense. His opponents can force disclosure of any information relevant to the claims even if that information is not admissible as evidence.
If he lies under oath, he could subject himself to a perjury charge. A person convicted of perjury under federal law can face up to five years in prison and fines. If he tells the truth, and admits he assaulted the women, then he will not only lose his case, but open himself to a counterclaim for sexual assault. Moreover, Trump has denounced the woman as liars. So while some of the women might be barred by the statute of limitations for sexual assault, Trump has now given them an opening to sue him for defaming them.
As reported by USA Today, Trump has been involved in at least 4,095 lawsuits. These include 14 media or defamation related cases including suits against Miss Pennsylvania, Bill Maher and author Tim O’Brien. Trump was a plaintiff in seven and a defendant in seven. He has apparently won only one case for defamation, an arbitration award against Miss Pennsylvania for $5 million after she called the pageant “fraudulent.” She later filed a malpractice suit against her lawyer. A federal judge said the lawyer’s representation was “unconscionable.” She entered into a settlement agreement with the lawyer that helped her settle her case with Trump.
Many of Trumps lawsuits have ended before trial. For example, Trump filed suit against comedian Bill Maher for $5 million in 2013. Maher had offered to donate $5 million to a charity if Trump produced his birth certificate to prove his mother had not mated with an orangutan. This was said after Trump had challenged Obama to produce his birth certificate, and offered $5 million to a charity of Obama's choice, if Obama produced documents such as his college applications. Trump produced his birth certificate and filed a suit after Maher failed to donate $5 million, asserting Maher’s offer was legally binding and not just a comedian making a joke. However, Trump withdrew the lawsuit after eight weeks.
Perhaps the biggest obstacle for Trump to overcome is proving that his reputation has been harmed. Even if he is able to show that the statements about him were false, he has been the subject of so much other negative publicity during the campaign. Thus, how could he prove how much reputation suffered from these allegations compared with the many other disparaging remarks made about him? Persons who have poor reputations can find it difficult to prove that their reputation has been lowered further because they are already dwelling in the cellar.
Lawsuits may be filed for reasons other than prevailing at trial. Threats of defamation suits may be used to intimidate other persons from coming forward and making claims, and deter publications from disseminating such allegations. Defamation cases often take years to resolve. For example, the Republican presidential nominee Barry Goldwater in 1964 sued FACT magazine for assertions made in a special issue that accused him of having a paranoid personality and being psychologically unfit for the White House. The suit did not come to trial until May 1968, which was years after Lyndon B. Johnson had won the election. After a 15-day trial Goldwater won $1 in actual damages and $75,000 in punitive damages. Appeals then dragged on until January 1970 when Richard Nixon was president and the Supreme Court refused to review the case. So, a quick resolution of any defamation cases brought by Trump should not be expected.