Trump may rue the day he sued Murdoch for libel over Epstein’s birthday card
President Trump is suing Rupert Murdoch, Dow Jones — the Wall Street Journal’s parent company — and two of the paper’s reporters for $10 billion over the Journal’s story about a lurid birthday card that Trump allegedly sent to the deceased sex offender Jeffrey Epstein in 2003.
Trump claims that the card, which contains arguably compromising statements, was fabricated by unnamed Democrats. He posted about “a POWERHOUSE Lawsuit against everyone involved in publishing the false, malicious, defamatory, FAKE NEWS ‘article’ in the useless ‘rag’ that is, The Wall Street Journal.”
Murdoch and Trump have had an off-again-on-again relationship over the years. Murdoch’s media outlets, principally the Journal and Fox News, after largely opposing Trump during the 2016 Republican primary, have been credited with helping propel him to the White House.
According to the Journal’s story, a letter bearing Trump’s name “contains several lines of typewritten text framed by the outline of a naked woman, which appears to be hand-drawn with a heavy marker.”
“Inside the outline of the naked woman was a typewritten note styled as an imaginary conversation between Trump and Epstein, written in the third person,” the paper reported.
It reportedly contained a joking reference that “enigmas never age” and ended with the words, “A pal is a wonderful thing. Happy Birthday — and may every day be another wonderful secret.”
Trump denied writing the note after the article was published, posting, “These are not my words, not the way I talk. Also, I don’t draw pictures.”
The birthday note, if authentic, hints at Trump’s contemporaneous awareness of Epstein’s criminal behavior — as might Trump’s comment to a reporter less than a year earlier that Epstein “likes beautiful women as much as I do, and many of them are on the younger side.”
Dow Jones said it would “vigorously defend” itself against the lawsuit. “We have full confidence in the rigor and accuracy of our reporting.” And so the issue is joined in court as well as the court of public opinion.
Libel suits have historically been gravely dangerous not only for defendants but for plaintiffs as well. Such a suit often serves only to magnify the allegedly defamatory statements.
Roy Cohn advised his clients never to sue for libel. He knew that Oscar Wilde and Alger Hiss sued for libel, and the truth, which is always a complete defense in a libel suit, led to criminal prosecution, conviction and jail. Gen. William Westmoreland sued CBS over defamatory statements about his conduct of the Vietnam War. Israeli Gen. Ariel Sharon sued Time Inc. over its reporting about his actions in Lebanon. Both came up essentially empty-handed.
Trump will have a steep uphill climb to make out his complaint against Murdoch. The venerable New York Times v. Sullivan (1964) is still good law, despite Justice Clarence Thomas’s stated desire to overrule it. A public official suing for libel must prove by clear and convincing evidence that the defamatory statements were published with actual knowledge of their falsity or a reckless disregard for the truth.
In this case, we are talking about the Wall Street Journal, not the National Enquirer. It is very unlikely that the Journal knew the birthday card was a fabrication or that they proceeded recklessly, knowing that the source of the document was unreliable. More likely than not, the document came from the files of the Justice Department.
Indeed, Trump, apart from lashing back at Murdoch, may have sued mainly to unearth via discovery the source of the leak. Trump claims that he relishes discovery in the case. “I hope Rupert and his ‘friends’ are looking forward to the many hours of depositions and testimonies they will have to provide in this case,” the president stated. Trump’s lawyers have asked the court to expedite Murdoch’s deposition while he is still alive because Murdoch is “94 years old” and “has suffered from multiple health issues.”
But those “many hours” may prove more harmful than helpful to Trump. Murdoch’s lawyers will be able to bring out just where the Journal obtained the birthday card, as well as all the torrid details of the 15-year relationship between Epstein and Trump, including such undisclosed gems as how the friendship began; how close was it; whether it involved under-age women; whether, and, if so, when Trump learned that Epstein was trafficking teenagers; when Trump learned that Epstein was engaged in criminal acts; and when there was a severance of the relationship and why.
Reports have suggested Trump and Epstein had a rift in 2004 over competing bids on a Palm Beach mansion, but there may be more to the story. Peggy Noonan reminds us that Trump’s mantra is “fight, fight, fight,” and he will do so even when it hurts him. “There is no way on earth that [the lawsuit] will be a net positive for him. Which surely he knows,” she writes. “He fights even when he will hurt himself, because the fight is all.”
Trump is essentially libel-proof. What are his damages? His reputation for sexual misconduct is well known. A civil jury in New York found him liably for sexually abusing writer E. Jean Carroll in a department store dressing room. A New York jury convicted him of 34 counts of felony document falsification to cover up a tryst with pornographic film actress Stormy Daniels.
It is too early to tell, but Trump may not have the sort of walk in the park he’s had in his recent media lawsuits. He settled with ABC shortly after his reelection for $15 million, arising from George Stephanopoulos carelessly saying Trump was convicted of rape instead of sexual assault. Trump’s recent settlement with CBS for $16 million, arising out of the claim that “60 Minutes” left unfavorable footage of former Vice President Kamala Harris on the cutting-room floor, seemed influenced more by parent company Paramount’s need for FCC approval of its corporate merger than by the merits of the case.
The Murdoch libel lawsuit, if pressed, may be full of booby traps and surprises for Trump. It could result in disclosure of many of the documents in the possession of the Justice Department, which the Journal reported subsequently were riddled with references to Trump himself.
People in a position to know tell me that Murdoch will never settle. But he did appear to blink a little with a front-page “exclusive” Journal article Friday under the headline: “Jeffrey Epstein’s Birthday Book Included Letters From Bill Clinton, Leon Black.”
The article was singularly uninformative.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.