Filing dubious lawsuits is one of Donald Trump’s favorite hobbies. He’s taken on the likes of The New York Times, Facebook, Twitter-as-was and Youtube, just to name a few. These legal temper tantrums aren’t designed to win (and usually don’t); mostly they have been about assuaging Trump’s bruised ego and keeping his name in the press.
The president-elect’s lawsuit against the pollster Ann Selzer and the Des Moines Register, however, is different.
There are many things wrong with Trump’s claim. It’s still comical — there’s a reason that Donald Trump has so much trouble retaining top-tier attorneys, apart from his notorious reluctance to pay their bills — but it’s also deeply disturbing. The only real question is whether the judge will use the F word (frivolous) when it gets dismissed.
The complaint Trump filed is 25 pages long, but most of that is window dressing. There’s only one actual claim, and it boils down to Trump arguing that the Selzer poll predicting he might lose Iowa was false and that, because of this false poll, Trump had to spend campaign money to “mitigate and counteract the harms of the Defendants’ conduct.”
For starters, Trump doesn’t have standing to sue. He filed this action in his personal capacity, but it would have been his campaign that spent the money and suffered any damages. But let’s look at the bigger picture here.
Trump is claiming that he can bring an action for damages because Selzer and the Des Moines Register said stuff that wasn’t true and this caused him political harm. He says this is “election interference” and that it violates the Iowa Consumer Fraud Act.
This is absolutely hilarious. Trump’s entire campaign was based on repeating debunked falsehoods over and over and over again. If Selzer (or any other pollster, for that matter) were liable for coming up with an erroneous poll result, just imagine the kind of damages Trump would rack up after just one of his rallies.
And if the Des Moines Register were liable for publicizing the results of that poll, thousands of podcasters and media outlets would be on the hook for amplifying Trump’s nonsense for their audiences. FOX News already had to pay $787 million for telling lies about Dominion Voting Systems. How much would they owe for the rest of their claims about Trump winning the 2020 election? How much would the bill be just for January 6th?
In short, if you could sue people for saying things that aren’t true during a political campaign, Donald Trump would spend the rest of his life and then some in court. Lucky for him, you can’t. Ann Selzer is safe and this suit will be dismissed. Unfortunately, getting to that point will cost both Selzer and the Des Moines Register time and money. And that’s the problem.
As absurd as it is, this new lawsuit is part of a deeply sinister, disturbing pattern of intimidation. We often talk about how authoritarianism begins. Well, this isn’t how authoritarianism begins — this is what authoritarianism is.
In repressive regimes, heavy-handed censorship is rarely necessary. Rather, people have been trained to engage in self-censorship, knowing that saying the wrong thing will result in legal action and that even if they eventually win in court, it will be a pyrrhic — and expensive — victory.
Businesses are out to make money, and even media companies are businesses. When government repression is in the wind, few companies will sail against it. Rather, they’ll tacitly cooperate and stay out of trouble.
A lot has been written about Jeff Bezos, Amazon’s founder, stopping the Washington Post from endorsing a presidential candidate, probably because he did not want to annoy Trump. The billionaire owner of the Los Angeles Times did much the same thing. And just last week, ABC threw in the towel in an extremely defensible case where Trump claimed he was being defamed because his attack on E. Jean Carroll had been mischaracterized as “rape” by George Stephanopoulos.
ABC’s decision to roll over and play dead seems to have been a business decision, not a legal one. Even if Trump had won, it was the sort of case where the plaintiff gets awarded $1 in damages. When it comes to sexual assault, Donald Trump hasn’t got much of a reputation to ruin. And yet, ABC agreed to pay Trump $15 million to settle.
Trump is already planning on using the power of the federal government and a compliant Justice Department to go after his enemies. He’s openly mused about putting ABC out of business. Getting off Trump’s enemies list is just good business, and if you’re Disney, ABC’s owner — which earned $89 billion last year — $15 million is practically a rounding error.
Thousands of business executives are reaching the same conclusion. After the January 6th Capitol attack, Facebook banned Donald Trump. After the November election, Jeff Zuckerberg made a pilgrimage to Mar-a-Lago, where he stood, hand on heart, for a rendition of the national anthem sung by the “J6 Prison Choir.”
These lawsuits are ridiculous, but that is almost the point. Trump is making it clear to everyone that he will take retribution on his enemies and nothing will get in his way — not logic, not evidence, not the rule of law itself. This is a rare moment when we can see America’s culture of freedom slipping away before our eyes.
Happy New Year, everybody!
Chris Truax is an appellate attorney who served as Southern California chair for John McCain’s primary campaign in 2008.
