Trump vs Wall Street Journal & Harvard vs Trump

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1:54This is Bloomberg Law with June Grosso from Bloomberg Radio. President Trump has made something of a habit of suing the media for defamation. This time, Trump is filing a$10 billion defamation lawsuit against the Wall Street Journal over a July 17th story that described a sexually suggestive letter that the newspaper says bore Trump's name and was included in a 2003 album compiled for Jeffrey Epstein's 50th birthday. The suit accuses The Wall Street Journal and its reporters of having knowingly and recklessly published numerous false, defamatory, and disparaging statements, which it says caused overwhelming financial and reputational harm to the president.

2:44A spokesman for the journal said, we have full confidence in the rigor and accuracy of our reporting and will vigorously defend against any lawsuit. Joining me is defamation attorney Jeff Lewis. Jeff broadly described Trump's lawsuit. Well, he brought two claims, one for defamation per say and one for defamation per quad, saying the Wall Street Journal never should have published a story alleging that this note was shared, this birthday greeting and drawing was shared with Epstein. That's the gist of the lawsuit. It's not a serious lawsuit, I have to tell you. Why do you think it's not a serious lawsuit?

3:18Well, first of all, where it was filed, you know, serious defamation lawyers will file in a state, will choose a state where there's no anti-slap law or a weak anti-slap law to avoid an early embarrassing loss. And here are these folks filed in Florida rather than Delaware. Most people who are serious about proceeding with a defamation case, if they have a chance to file in Delaware, will. They chose not to file that. That's one. And the second thing that tells me it's not a serious lawsuit is Florida's got a law that says, hey, before you sue anyone for defamation, you've got to give a five-day notice.

3:48Meaning after the publication, you give five-day notice to the newspaper or TV show, hey, we're going to sue you, and give the chance for the newspaper or the TV show to do a retraction. Then they comply with that statute. And that's mandatory. Case could be dismissed. Cases have been dismissed based on that statute. Just explain what the anti-slap law is. Well, California has a very robust anti-slap law. Florida has a pretty robust anti-slap law. What it does is it allows litigants to cut the line instead of waiting four or five years, instead of spending hundreds of thousands of dollars to resolve their case.

4:19They get to cut the line. And within the first few months of the case, without any discovery, get in front of a judge, put all their evidence on the table, and say, hey, this is a frivolous case and should be dismissed at the outset. And if they win, the defendant gets awarded attorney's fees paid by the plaintiff. So here, Wall Street Journal's attorney's fees, which will be in the six figures, will be paid by President Trump. I mean, is this Wall Street Journal article about this sexually suggestive letter even defamatory? You know, a classic defamation lawsuit will consist of a false fact that somebody said something that was false.

4:54And here, you don't really have a falsity. an experienced litigator would have probably pled a false light claim, which is related to defamation, which portrays somebody maybe not with a false fact, but in a negative light, saying, hey, you're a known associate of a child predator. That's the stronger claim. I'm surprised they didn't plead it. Trump would have to prove, first of all, that the Wall Street Journal was lying. If they can just produce the letter or evidence of the letter, then the suit's over. Well, I don't know about the suit being over, but I will say this. Truth is a defense in any case, and in a case involving a high-profile plaintiff like the president, it is a defense to say that the defendant or the newspaper did not act with actual malice, meaning they had good cause to believe what they were writing is true.

5:41And so if they have the letter or a photo of a letter or a credible witness account of the letter, those would all help the Wall Street Journal meet the standard of, hey, we didn't publish this with actual malice. The lawsuit claims that Trump suffered overwhelming financial and reputational harm. But one jury found Trump liable of sexual assault, and another jury found him guilty of felonies, of falsifying business records to cover up a hush money payment to a porn star. And despite that, he was still reelected. So would he suffer further reputational harm from this article? No, I have to tell you, if I were defending The Wall Street Journal, I would invoke a little known and little used doctrine known as the libel proof doctrine, saying there's certain people in our community, certain people in our national politics whose reputations are so terrible or have been so damaged that a negative article in the press does little to no damage and they shouldn't be allowed to come to the courtroom and recover damages because they are so notorious.

6:41And I think Trump fits the bill. The danger of this for Trump is that the Wall Street Journal can seek broad discovery and can depose him and question about his relationship with Epstein, right? You're absolutely right. The discovery that can be obtained, the sunlight that could be put on this issue, is so much broader than what Congress can do right now, assuming Congress had the willpower to do something. In civil discovery, one could take the, I don't know, the deposition of a prisoner, the former girlfriend of Epstein, and see what she has to say, either in deposition or at trial. You could send subpoenas out to third parties.

7:17So what they might know about this book and these notes, the scope of discovery is very broad. I assume that the Wall Street Journal is going to make a motion to dismiss pretty quickly. Do you think they can get the suit dismissed at an early stage? I do. I expect them to bring an anti-slap motion to dismiss, invoking Florida's anti-slap law. And I expect them to argue there was no compliance with this five-day rule. There's no proof of actual malice. And there's no damages because he's a libel-proof defendant. And could there be a settlement? What kind of factors would be considered? Frequently in defamation litigation, people will look at the odds of recovering any kind of damages, the plaintiff, and the defendants look at the cost of defending the case.

8:01And they compare that to what a possible settlement might be reached. And oftentimes, nine times out of 10, cases settle because the cost of defending the case and the risks of going forward are just too great, even if you feel like you're on the right side of the story. I fully expect this case will settle at some point. But the question is, will there be a few rounds in court, like a big anti-slop motion, before there's a settlement? I mean, Trump is known for these defamation suits against the media. He brought cases against CNN, The New York Times, and The Washington Post, and judges dismissed those.

8:34But recently, in his defamation lawsuit against ABC and another one against CBS, they settled in pretty quickly. Is it just bad business to be suing the president, especially if you need approval for a merger? Let me say this. What really bothered people about the CBS settlement is the violation of norms. President Trump is great at violating norms. What we see are traditional rules of fair play in terms of court proceedings and that kind of thing. So you don't typically see someone who occupies the White House wielding their power because of coverage they don't like, either unflattering coverage of somebody, or in this case, I believe it was they tried to make Kamala Harris overly positive.

9:14They gave her flattering edits. And that is not a lawsuit you typically see. And to see a big entity pay a huge sum of money to settle at a time when their merger or sale was under potential federal review, it left a lot of people unsettled. And the difference is the spine of the corporate defendants and their willingness to put up with out-of-court pressures. I mean, keep in mind, there's calls right now that cancel Wall Street Journal subscriptions. There's going to be tremendous pressure put on Wall Street Journal by President Trump's base. And so the question will be, will Wall Street Journal have a spine and stand up to this, or will they succumb to that out-of-court pressure?

9:54Trump has wanted to get rid of the actual malice standard in the New York Times v. Sullivan case, which makes it harder for public figures to win libel and defamation lawsuits against the media. Do you think this lawsuit is part of that? I do know that he and other conservatives sort of want to get the actual malice standard taken out of defamation lawsuits so that plaintiffs no longer have that big hurdle. I don't think this is a particularly good case to do that because the facts are so bad, meaning there are not great facts in favor of suggesting the Wall Street Journal acted with actual malice.

10:32Oftentimes when you're looking to take a test case up to the Supreme Court, you want facts that portray the plaintiff in a positive light. And so maybe that might be President Trump's goal, but I can't imagine legal advisors see this either as a serious lawsuit or a serious vehicle to return the long-running actual malice standard. And what's the danger of getting rid of the actual malice standard? Well, there'll be a chilling effect on people willing to gather news. There'll be a chilling effect on people like me willing to speak to reporters. Because if you think you're going to be sued and you don't have the protection of the actual malice standard, it is easier for a plaintiff to survive quick motions like quick anti-slap motions to dismiss, especially in states.

11:13About half the states in the United States don't have anti-slap laws. You're going to find reporters unwilling to report and participants, witnesses less willing to speak to reporters if it's an edgy story, if it's a story where there's any question that the target of the story might bring a lawsuit. Is this just a run-of-the-mill defamation lawsuit, or is there anything unique about it? It's super interesting in a case like this to allege both defamation per se and defamation per quad. Defamation per se means I don't have to prove any damage. You, the jury, should just pick a number because the things that were said were so awful, so quad criminal or so terrible to my reputation.

11:53I don't have the burden of proving damages. But he also pled defamation per quad, which says, as a result of the thing that were said by a Wall Street Journal, I, President Trump, suffered actual damages. Boy, if I'm the lawyers for a Wall Street Journal, I could have a field day exploring comment. Imagine going through President Trump's finances, his communications, everything having to do with this story, his reputation before the story and his reputation after the story. I mean, he opened the door to broad discovery by saying he suffered actual damages. Well, they may not even get to discovery in this case.

12:31It could be dismissed well before that. Thanks so much, Jeff. That's defamation attorney Jeff Lewis. Coming up next on the Bloomberg Law Show, Harvard University is challenging the legality of the Trump administration's termination of$2.6 billion in federal research funding over alleged institutional failures. You're listening to Bloomberg. Some people treat ChatGPT like some kind of smart search engine, and some use it to get work done. ChatGPT Work is a new way of working in ChatGPT that can take action across your apps and files, stay with a project for hours if needed, and turn a goal into finished work.

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14:574certain. President Trump has repeatedly complained about perceived wokeness at universities and colleges. And in the Trump administration's campaign to pressure elite U.S. colleges to make a wide range of policy changes, it's come down hardest on Harvard University, the country's oldest and richest university. Among the actions the administration has taken is terminating more than$2 billion in federal research funding to Harvard over alleged institutional failures, including anti-Semitism on campus. Harvard has responded with a lawsuit and yesterday at a hearing Boston Federal Judge Allison Burroughs raised questions about the constitutionality of the government's decision to slash the funding and call some of their arguments in defense of the move mind-boggling.

15:51My guest is Jody Faris, a lawyer who specializes in higher education. She's a partner at Church, Church, Hiddle, and Antrim. Jody, the Trump administration said it was freezing Harvard's funding because it violated Title VII of the Civil Rights Act by failing to address anti-Semitism on campus. Tell us more about the Trump administration's position here. So it's interesting when you talk about the argument that the Trump administration has been making. They've actually kind of shifted a time or two in their argument. I think Harvard's been pretty steady. Harvard's argument has been throughout you're violating our rights of free speech.

16:34You've done it with no due process whatsoever. And you can't do that. You can't do that. You didn't give us any notice. You didn't follow Administrative Procedures Act. You didn't give us any opportunity to cure what you said was wrong. You can't do that. So Harvard's been pretty steady. But the Trump administration has tried a couple of different things, right? They've said, you know, we are revoking all these federal funds and we're going to prohibit the issuance of any new federal funds because you have violated civil rights law. and you've engaged in or allowed or even fostered this rampant anti-Semitism.

17:17Then once this action was filed, they've said, hey, this is a contract matter. This is just a contract matter. Harvard, you should have read the fine print. You should have looked at the fine print that said that we could revoke your funding if we had a shift in our administrative priorities. They've also said you've chosen the wrong court. This should be, you know, in a in a different forum. And, you know, I think that that is a that's a pretty lame effort. But they they've kind of shifted a little bit. Right. And I think that yesterday what you heard in in the hearing was that was them saying, you know what, we can do this.

17:55We can allocate funds where we think matches up with presidential priorities and administrative priorities, and these aren't our priorities right now. That, to me, is a bonkers argument when you think that they have just revoked funding that would go to things like cancer research and ALS research and research that has to do with preventing suicide in veterans and risk factors in childbirth. These are not controversial. If those things aren't within your administrative priorities, then shame on you, really. But that was one of the arguments that the government has made is these research grants, they no longer fall in line with our administrative priorities because they are being given to an institution that engages in anti-Semitism and we get to choose.

18:47Are these grants like a contract that the government says they can just walk away from? They are saying that, and they're not entirely wrong. So federal grants always come with a contract, and we know that because there are terms that come along with every grant, really from any organization or entity or government, whether it's federal or not. And they will say things like, you have to engage in human research protection, right? That's a term of your grant. You have to do that. You can't lie about what your grant funds are going to be used for. You can't fudge your data. You can't, you know, make things up or you can't make up something for purposes of your application to induce us to give it to you.

19:33So those kind of things are always built into essentially any grant funding that comes pretty much from anywhere. And those are important, right, to ensure things like human resource protections. They're saying that sort of implicit in every one of these contracts, and they really are, grants are a contract. They're saying implicit in that is if we decide unilaterally with no opportunity for you to be heard on the matter or to respond or even to cure a defect, If we decide unilaterally that you've done something way over here that has nothing to do with this grant, we can still take it away. And that's the part that's incorrect.

20:16But people do lose grant funding for things directly related to the grant itself. And that's important because those are important terms for protection and stewardship of the funds. The judge pushed back on the administration's claims that the funding cuts were justified by Harvard's failure to tackle anti-Semitism, asking about the relationship between cancer research and combating anti-Semitism. It was pretty obvious from some of the judges' comments that she didn't see how cutting off grant funding for cancer research and ALS research and research on biological threats and food insecurity and risk factors in childbirth, how any of that stood to make anti-Semitism go away or had any correlation to it in the first place.

21:06because the government has made no argument that these grants or this research is in any way fostering anti-Semitism or that anti-Semitism has been rampant among those doing this research. They haven't made that correlation, and she pointed that out yesterday during the hearings to try and prompt them to make that link. They did not attempt to do that. They simply said, whenever we give Harvard research funds, those are funds that aren't going somewhere else. Their argument seemed to be, we have a finite amount of funds, we give them to this anti-Semitic institution, then it's hurting other institutions that are better suited to have them because they do more to protect Jewish faculty and students.

21:52I don't think the judge bought that argument. So you mentioned that one of Harvard's main claims is that the administration violated the Administrative Procedures Act. And that's a pretty common claim in these suits against the administration. So explain a little bit more what they should have done here. So under the Administrative Procedures Act, you can make changes. An agency can make changes or they can issue sanctions for things. But there's a process that they have to go through to do that. And there's a notice the recipient would be entitled to. And then there's a process by which they get to answer.

22:35So it's kind of akin to what you would see in a civil action. But if an agency wants to make some big change like this, you know, we're going to cancel all your grant funding that we've already agreed to give you, you would be required to have an agency proceeding, right? Some kind of an agency process where you're going to level those charges against the organization. And then, you know, they can issue a sanction. And, you know, a sanction might be revoking grant funding. But in order to do that, they need to go through the process of adjudicating that, and that they did not do. And so under the Administrative Procedures Act, when they do that, the agency is required to give an opportunity for Harvard, in this instance, or the responding organization, to review what the facts are, what's the argument against us, What's the extent of the sanction or the penalty that we are going to be subjected to?

23:38And then you give them notice and an opportunity to respond to that. So in that way, it's kind of just like a civil action where you must give someone an opportunity to address, to answer what's been charged against them. The Trump administration seems to be saying, yeah, not here. We understand there is an Administrative Procedures Act, but not here. We are able to do this unilaterally. And I think that's why in this instance, the case was brought, you know, it's kind of a bold move, but it was brought for summary judgment, which is both parties saying to the court, there's not really any issue of material fact here.

24:20There's no material facts, something that we disagree on. This can be determined as a matter of law. And Harvard's saying, as a matter of law, you got to give us, you can't take an agency action like this without some kind of an adjudication, some kind of notice, some kind of process, some kind of opportunity to respond. And the Trump administration is saying, in this instance, we don't have to do that. We get to unilaterally revoke these things and decide where our dollars go. it's just good stewardship, according to them. So is there not going to be any fact finding about whether or not Harvard has, you know, worked to combat anti-Semitism?

25:01So that's the interesting thing. You know, the two and a half hours yesterday, that was that on at least on the law part of this. The determination when it comes back from Judge Burroughs, it's either going to be I'm granting summary judgment, and I am saying as a matter of law, the government did not follow procedures that they needed to follow in order to level this kind of a sanction or take this kind of an agency action. So that action was unlawful. You have to release those funds. Now, if that happens, and there's a pretty good chance it will, the appeal will be swift. In fact, I'm sure to the depth of my soul that that appeal has already been drafted because I think the Trump administration feels, and I'm basing this on some of Trump's true social language, I think they probably assume that they're going to lose at the federal court level.

25:53And so I think we will immediately see that. However, to your question, there is a time and a place where you might see that. You might say if the government decided, and they won't, but if they decided to agree, okay, all right, if you want to do it that way, we will go ahead and prove that these facts are true and these facts make you inappropriate and they could follow that. So there is still a place where the actual fact finding about the substantive issues, the anti-Semitism itself, could come out. The other place that it could become an issue, though, is remember that here we're talking about the termination of grant funds that were already in place.

26:36But I think what we're probably going to see is that even if the Trump administration loses on the issue of the funds that have already been agreed to, right, the funds that have already been granted and have been kind of paused, even if they had to do that, I think they will not be done. I don't think this will be but a speed bump to them because they can still cut off future grant funding. They can still attempt other end runs that they've already signaled they will do, things like taking away tax-exempt status, things like trying to interfere with accreditation. And so I don't think that regardless of what happens, we will be done with this and there will be places all along the way where Harvard may be called upon to defend itself in terms of what it's doing to cure anti-Semitism, to remedy things that they acknowledge could be better, things that they acknowledge have maybe gone wrong.