Will the BBC face down Trump in court?

0:02Jon Sopel:This is a Global Player original podcast. Morning everyone, good morning. Just want to say a couple of things. I'm here to lead and support the BBC. I'm very, very proud of our journalists in this building. They're doing work, I think it's incredibly important. I want to thank every one of them. They're doing a wonderful job. Also, everyone across the BBC doing their thing for the UK. And personally, I'm here to lead and support them. The BBC is going to be thriving and I support everyone on the team. I'm very proud of them. Thank you very much. That is Tim Davey, the soon to be ex-director general of the BBC, arriving at New Broadcasting House saying we will soon be thriving.

0:44Jon Sopel:Well, not if Donald Trump has his way with the threat of a billion dollar lawsuit. What does the BBC do? Fight or wave a white flag? it's a huge consequential decision welcome to the newsagents

1:06Emily Maitlis:the newsagents it's john it's emily it's lewis and where are you i'm the only one here abandoned abandoned in the studio that we call hq well that's very nice of you um look the bbc nightmare got a little bit worse when Donald Trump's attorney said, yeah, full apology,

1:29Jon Sopel:full contrition, full surrender, or we're going to sue you for a billion dollars. And you can imagine what it's like at BBC headquarters now working out what to do next. Do they raise a white flag and say, OK, we're going to settle for how many millions? Who knows? But where would that leave the chairman of the BBC, Samir Shah, if licence payers money is being sent over to Donald Trump's bank account? And if you fight, well, what would the legal costs be? What would the damage be in reputational terms? And would you win? And that is what the legal team and the political advisers are now scratching their heads over at this unprecedented time with a director general who's going and a head of news who has more or less gone.

2:22Jon Sopel:Yeah, I think, look, this is clearly nightmarish. It's clearly nightmarish because the last thing the BBC wanted to do was find itself in the same position that so many American media companies, whether it's NBC or ABC or the New York Times or wherever it happens to be, being sued by the President of the United States. And we should just take a moment, like this has become normalised. This is not normal. It is not normal for someone with the power and prestige of that office to be spending his time, however aggrieved he might feel, whatever his case might be, suing major media organisations. And we all know what the purpose of that is for.

3:04Jon Sopel:Look, Trump does not have a case. If this were to go to court, the BBC almost certainly, according to every legal analysis I have read would win. Because frankly, on the question of January the 6th, which is exactly what we were saying yesterday, on the question of January the 6th, yes, it is true that the BBC, in that panorama programme, did misrepresent what he said that day. They did not misrepresent what he did that day. And not on just that day, but on every day before. He did lie about the election, he did, he did encourage those people to do what they did. Not through that day, an explicit call to arms, but in everything that he said about that election.

3:47Jon Sopel:Quite frankly, on January the 6th, Donald Trump does not have a reputation to defame. And we know that from everything that congressional inquiries have said, from the fact that he was impeached, including by Republican votes for what he did. And by the fact, as I said yesterday, that many of the January 6th insurrectionists who he subsequently pardoned said they only did what they did because they thought that that was what Trump wanted. So the BBC would win, but Trump knows that this isn't about getting to court. It's about scaring and intimidating journalists the world over. And you know what the scary and sad thing is?

4:22Jon Sopel:It will almost certainly succeed.

4:24Emily Maitlis:I think it's also worth going back to first base and to the evidence in front of us, because the Panorama doc itself, which aired in November of last year before the presidential election, was actually started two years ahead of the election. It was a presenterless feature. In other words, it had decided to follow people who had remained solid fans and supporters of Trump through their loyalty whilst he was facing criminal convictions on many counts. And it was essentially asking the question, will the electorate give him the second chance? That was why it was called Trump's second chance. Even though he's faced lawsuits, even though he is now a convicted criminal in the eyes of the law, he was a convicted criminal when he stood for election in November of 2024.

5:14Emily Maitlis:Why are people so loyal to him and why are they giving him a chance? and you can't watch that panorama anymore. I've tried. It's been taken down for obvious, we guess, legal reasons. We now understand. But you can go through the sort of breakdown of how the panorama was put together and the voices and the arguments that they were making. And the irony of all this is that I think the BBC and the independent production company that was working alongside it were coming from a place where they were trying to get under the skin of kind of real Americans, of Trump supporters to understand why they just didn't really mind the legal lawsuits that he had found himself in the middle of.

5:54Emily Maitlis:And the trouble, I guess, the BBC's big problem now, and we've all been there, we all know what it's like to have to firefight a story from inside. And the main problem is that because people are coming at you with this question of impartiality, you lean into the problem. So all the presenters are now saying, oh, we did get that wrong and that was a big mistake and this really is understandable and Trump is in a position where he can now sue the BBC because the presenters feel like they have to lean in to the questions when they are being chased by big issues of impartiality. And you're right, Lewis, if you step back, you say, well, sorry, where is the case for defamation in this coming from?

6:36Emily Maitlis:Did anyone really believe that a Panorama documentary that was aired three years, nearly four years after Trump had denied that election and after the Capitol building had been the centre of an insurgency, a call to overturn a legitimate election result. Does anyone think that Panorama changed their mind about Donald Trump?

6:59Jon Sopel:Yeah, of course. And I think that, you know, let's just dwell on sort of the American legal system and suing for defamation, because, as both of you say, the case is spurious. And secondly, libel cases in America have to reach a far higher bar than they do in the UK. If you can prove in the UK something is untrue, then you will win your libel case. In America, you have to prove that it was malicious falsehood, that there was malice in the way that you did something. That's the first thing. The second thing is, was it even broadcast in the United States? If it wasn't and it wasn't available on the iPlayer because the iPlayer is not available in America, then, well, what's the question?

7:44Jon Sopel:Because Donald Trump can't say I have been defamed in America if no one actually saw it. And the third thing is that although people have cited these American media companies that have settled legal actions with Donald Trump, like CBS, whose parent company Paramount paid Donald Trump money, They were in the middle of a takeover deal with Skydance, needed regulatory approval. And so they did it for that reason. ABC News settled with Donald Trump because they didn't want disclosure of a whole pile of emails between various presenters and producers, which kind of, you know, were disparaging of Donald Trump.

8:22Jon Sopel:Each had their own reasons to settle. The BBC is not in that position. There are no merger talks. There's no parent company. But if it did settle, how would you sell it to the licence payer that we have made Donald Trump richer? And I so I do think that backbone is the only answer they've got. And just on this reputational piece of it, which I think is so fascinating, I kind of noticed on X this morning a tweet from none other than the Russian embassy, where they are saying BBC journalists manipulate facts and censor information that does not align with their partisan editorial stance. Ideological dogma has replaced journalistic ethics here.

9:07Jon Sopel:Well, frankly, irony is dead when you get the Russian embassy lecturing you on journalistic ethics, having shut down more or less every free newspaper. But how weird, how weird that we now find the Russian embassy in the same place as Donald Trump, as Nigel Farage, as Jacob Rees-Mogg, as some senior Tories who are calling for the BBC to, you know, be almost defenestrated as a result of this. what an unusual bunch of bedfellows they are and i think it speaks to the bbc fearless journalism is what terrifies politicians and they must not be cowed well i think that's a very instructive way of looking at it i think let's imagine that this whole story had occurred not to donald trump but say to another another democratically elected politician but in a country where like the united states we've seen that leader engage in you know significant democratic backsliding or who have denied elections.

10:03Jon Sopel:So let's imagine it was, I don't know, Victor Orban, or let's imagine that it was Javier Mille or, you know, any number of people. What would the BBC's response to this have been? They would probably say, if that particular leader decided to pursue this, they would probably say, yes, that it was a mistake. And then that would be that. The reason that they are engaging and they're so fearful is because it is Donald Trump and because it's the United States and because there are geopolitical elements to this and the fact that Trump attracts such support that he's the leader of basically what is now a UK, US, anglosferic kind of radical right movement.

10:38Jon Sopel:The MAGA movement is now at home in the UK. And that is why you get the absurd spectacle, the bizarre spectacle of self-styled patriots taking to the airwaves, taking to social media, taking to X, egging on the president of the United States, encouraging the president of the United States to sue and potentially destroy what is, whatever you think of it, and all of its flaws and demerits, which we've talked about many times, one of the great British social, political, cultural institutions, the BBC. That is from these, as I say, self-style patriots who lecture everybody on how much more patriotic than the rest of us they are.

11:19Jon Sopel:It is a grim sight.

11:20Emily Maitlis:Yeah, I mean, I was watching Jacob Rees-Mogg last night on the BBC, and he said that he thought Donald Trump was right, essentially, to seek legal redress.

11:32Jon Sopel:Oh, he's completely entitled to. And the BBC libeled him, and he's therefore taking action against this.

11:36Emily Maitlis:I think anybody in this country would feel entitled to sue the BBC for libel if something was put out in such a dishonest way. I think this gets to the nub of it. Donald Trump has made it clear through his press secretary that he not only doesn't like the BBC, but would like its viewers to go to GB News. Jacob Rees-Mogg presents a program on GB News and would very much like GB News to overtake the BBC as the broadcaster of record, inverted commas. So here you have an explanation for this wonderful triumvirate. Yes, Jacob Rees-Mogg would like to call himself a British patriot, flying the flag at every opportunity, except when it involves Donald Trump or GB News, at which point he'd much prefer to see the BBC sunk.

12:31Emily Maitlis:He'd much prefer to see Donald Trump triumph. And he'd much prefer to see an institution that probably has made his entire career, quite frankly, has made his entire political career what it was, brought to nothing. And I think that there is a moment, again, in the irony is dead column, where you want to stand back and say, why is the BBC being lectured by papers that have paid out more than a billion pounds to phone hacking victims? Why is the BBC being lectured by papers that have employed Boris Johnson for many years to tell lies about the EU? Why is the BBC cowed by people whose ethics are demonstrably, are provably so much worse than its own?

13:26Emily Maitlis:And, you know, again, a big kind of in-block letters. Yes, the BBC makes mistakes. Frankly, Tim Davey could have resigned for any of the other myriad of problems that he faced over the last year, whether it was the Gaza doc or whether it was the Masterchef or whether it was the Hugh Edwards scandal or any of those scandals. He could have resigned for any number. And maybe this is just the sort of culmination of what feels like a pretty difficult year for him. But to stand back, the BBC should not be taking lessons from papers who have had to pay out millions to victims whose lives have been ruined.

14:02Emily Maitlis:It's kind of no more complicated than that.

14:05Jon Sopel:Look, I am getting, as we speak, a kind of readout from various BBC staff members about a call that has just taken place between members of staff and the chairman of the BBC and the director general, which there were apparently considerable expletives aimed at the chairman, Samir Shah. The call went down like a sack of proverbial sick, according to another one. And apparently Samir Shah's comment about it being disrespectful to the board to question whether they uphold BBC values kind of infuriated people. You know, it's particularly naff. Someone says Shah just totally and utterly underwhelming.

14:50Jon Sopel:In five years from now, new broadcasting house will be a building for hire. so you can see what damage this has done within the BBC itself, where people who are journalists who want to uphold the values of impartiality feel they've been betrayed by the board of the BBC. And this is a mutinous atmosphere by the sound of it. If I was still working there, I think my response to Samir Shah complaining that it's rude or disrespectful to complain about the board would be to say the board doesn't seem to have much problem complaining about the work of everyday journalists at the BBC every single week when they choose to.

15:29Jon Sopel:So I think they can draw a line under that. But to go back to your point, Emily, I think that, honestly, at this point now, I think this is existential for the BBC in a different way to which we've been talking about. I think its reputation, not only in the United States, by the way, it's growing a significant commercial set of revenue stream and has become quite a big news player in the US, but also in this country, I think is at stake now. Because if the BBC decides to back down in its entirety about this in the face of pressure from the Trump administration. It will have, ironically enough, acted deeply, deeply, partially.

16:05Jon Sopel:And it will have done so in this way. The Trump administration and the MAGA movement have been desperate since the election and the run up to the election of 2024 to erase and reinvent history. They have been desperate to portray what happened on January 6th as something other than it was. They have been desperate to say and use any method that they can of saying that Trump was not really involved. It wasn't incitement to violence. It wasn't an insurrection. He didn't really try and stop the certification of the election from going ahead. If you are only half listening to this story, which let's be honest, most people out in Britain and beyond will be, maybe not even half listening, a 10th listening, a 100th listening.

16:48Jon Sopel:All they will have heard is that the BBC doctored, in Trump's word, a clip to make it look like incited violence, and he didn't. And as we have been discussing, the truth of the matter is, in every credible way, he did incite what happened that day. And if the BBC just backs down, they will be playing into and legitimising an entirely false and fake narrative of events. And frankly, if it does that, then it doesn't deserve to survive.

17:15Emily Maitlis:I think that is a point, Lewis, that you and I have actually been making for years, that whilst we talk up this existential threat of the BBC from the right, the real existential threat is if it doesn't do its job properly. It's as simple as that. If it doesn't work out where its own moral compass is, if it is scared to call out Trump's lies, if it is scared, I mean, to go back to the Prescott report, the fact that Michael Prescott highlighted this phrase election deniers as a phrase that he didn't like BBC journalists using, I think is very, very indicative of the place that he comes from. In other words, if the BBC is to start accepting that there was no election denialism, that Trump was in no way responsible for what happened on January the 6th.

18:08Emily Maitlis:He had prepared the ground, as those of us who have been following and commenting and reporting on America for years know, he had prepared the ground even pre-election to call out any loss as a fake result. if the BBC finds itself in a position where because of that overhanging threat from Trump and his kind of UK-based acolytes, they are unable to actually tell the British public what went on and what is going on and to report properly and fairly and freely on what is going on right now in Trump's America, then yeah, it is a much bigger problem than a paper is coming for us. Oh, what can we do to put that story to bed?

18:51Emily Maitlis:I think you're right about whether normal, everyday citizens think that the BBC is the right place to be going for their news and to be taking their money.

19:02Jon Sopel:Look, for all the criticism that attaches to the BBC and some of it justified, the BBC is still an important source of news around the world. in Britain. It still commands a huge percentage of the British population who will either look at the website or tune into various radio programmes or whatever. But what Donald Trump has done, and he's just seized the opportunity that fell before him, is to sort of globalise his war on truth and war on the media. And he said years ago, during his first term, in an interview with Leslie Stahl on 60 Minutes, that if I keep saying something is untrue and only believe me and keep saying it, then people will distrust the media and trust me more.

19:53Jon Sopel:And that's what I want. And that is what he is doing. Make no mistake. He's seen an opportunity to globalise this. He's taking it. And honestly, journalists anywhere who believe in fair reporting and being rigorous and being tough and holding people in power to account should be very worried indeed.

20:17Emily Maitlis:And just to go back to the details of what could be coming at us, we know that BBC lawyers have until Friday to respond. That is not very long. We are recording this on Tuesday morning. I know that calls have gone in to the general counsel at the BBC to try and work out what their response is and whether they've even seen the letter. But there are many questions surrounding this. One, whether Trump can even win a defamation trial because the First Amendment is so fiercely protected in the US. And second, the question of a statute of limitations, which is not irrelevant to this case, because as we keep saying, the piece itself, the panorama went out more than a year ago for the first time.

20:58Emily Maitlis:In other words, there is a big question whether the statute of limitations has run out. So I think even just on a very strict question of whether he could even take this case very far, it would be quite an uphill struggle. We'll be back in just a moment with the Liberal Democrat leader, Sir Ed Davey.

21:28Emily Maitlis:And around the world. Breaking news here in Edinburgh. I'm Simon Marks.

21:32Jon Sopel:My American Week is next.

21:33Emily Maitlis:Reporting from the heart of Cardiff.