Stormy Daniels was already at loose ends with her suit against Donald Trump over the non-disclosure agreement Michael Cohen arranged. Now Trump has officially prevailed against Daniels in her second claim against Trump, a defamation suit.
Daniels challenged one particular Trump tweet as defamatory. The tweet, she says, accuses her of a lie—that in 2011 she’d been approached by a man who threatened her and told her to “leave Trump alone”—that in itself would be a serious crime.
Trump was tweeting with malice, Daniels argued, because he knew what he was claiming was false. How? Either Trump or Cohen ordered the threat communicated to Daniels. Alternately, if Trump had nothing to do with the 2011 incident and knew nothing about it but made claims about it anyway, that would constitute reckless disregard for the truth.
A little background on how the court analyzed Daniels’s defamation claim. It involved California, New York, and Texas law. The case ended up governed by Texas law because of what New York says about which state’s laws should apply in a case between two people from different states. In the end, the framework is pretty simple.
A defendant, Trump, can torpedo a defamation claim if they can show they were just exercising their right to free speech. Texas’s definition of free speech includes anything to do with “a matter of public concern,” including “a public official or public figure.”
If the defendant can do that, it’s on the plaintiff—here, Stormy Daniels—to marshal “clear and specific evidence” to prove each element of a defamation claim.
Even if the plaintiff meets this burden, the defendant can still win if they can establish that there’s a preponderance of evidence supporting each part of their defense.
There’s no real question that Trump’s a public official; Daniels has made herself a public figure. Ergo, a tweet by Trump about Daniels clearly falls into the “issue involving a public official on a matter of public concern” category.
Moreover, Daniels struggled to establish a prima facie—or obvious—case for defamation. Trump claimed his tweet was an opinion, not a statement of fact. The court agreed, in part because of a rather disturbing observation:
The Court agrees with Mr. Trump's argument because the tweet in question constitutes "rhetorical hyperbole" normally associated with politics and public discourse in the United States.
In other words, political rhetoric has deteriorated in the United States to a legally significant degree. What would have been defamatory a decade ago is merely an opinion now. The court ended its analysis there, in effect, because the above was enough to determine Trump’s tweet “non-actionable.”
Daniels will be appealing the decision to the Ninth Circuit, which hears federal appeals from Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
Not that Team Daniels is waiting for the Ninth Circuit. Avenatti’s already spitting Twitter bullets.
Trump and Avenatti are battling it out on Twitter—making the judge’s point about typical political discourse for him.
It’s a fair bet that Trump’s also going to manage to wriggle out of Daniels’s non-disclosure agreement-based suit against him, which will leave him home free—for now. At least Stormy’s stand resulted in a successful—and well-reviewed—book.
It’s only a matter of time before one of the many strong cases against Trump succeeds in securing discovery, the ultimate prize. Discovery could yield further evidence of campaign finance violations, uncover his tax returns, and offer more insights into Trump’s connections to Russia.