Trump’s litigiousness is well known: He tries to intimidate opponents and detractors with threats of lawsuits so often that you can practically set your clock by them. This time, though, Trump's threats to unleash his armada of high-priced attorneys may not prove as effective at silencing his critics.
That’s because some of America’s brightest legal and constitutional minds have vowed to defend Trump’s accusers in court—and they say they’ll do it for free.
Shortly after Trump’s comments, Ted Boutrous, a partner a prestigious Los Angeles-based law firm, took to Twitter to reiterate a previous promise that he would defend anyone Trump sues for exercising their free speech rights.
Boutrous is considered one of the nation’s top litigators. His firm, Gibson, Dunn & Crutcher, has argued over 100 cases before the U.S. Supreme Court and has represented major clients like Facebook’s Mark Zuckerberg and billionaire mogul Mark Cuban.
“Ever since I sent that tweet, the outpouring from other lawyers and people who want to help is just incredible,” Boutrous told Fusion. “It was so offensive to fundamental First Amendment values and democratic principles to have someone threaten to sue people who are criticizing him. The First Amendment is designed to protect exactly that kind of speech.”
One of the other lawyers vowing to join the pro bono fight against Trump was none other than Harvard constitutional law professor Laurence Tribe, who joined Boutrous’s pledge on Twitter.
“I feel compelled to offer my services free of charge because I don’t think rich or otherwise powerful characters like Trump should feel free to abuse people, whether women or others, just because they have the money to threaten their victims with high-cost litigation if they dare to speak up and identify their assailants,” Tribe said in an interview with Fusion.
Both Boutrous and Tribe emphasized that it was important to weigh in the moment that litigation is threatened in order to protect speech.
“Even if someone like Trump doesn’t sue, it’s the chilling effect. The effort to squelch speech can be invoked by simply making threats,” Boutrous said. “Whether or not he goes through with these lawsuits damage has been inflicted. That’s why I thought it was important for lawyers to stand up. Everyone should be able to exercise their free speech rights, especially in the middle of an election, without threats.”
The legal implications go beyond the chilling effect that Trump’s comments might have on free speech. Tribe told Fusion that these kinds of threats also have the effect of intimidating survivors of sexual assault from coming forward to face their accuser.
“Trump’s threats to sue any other women who might still come forward were an important part of my motivation,” Tribe said. “Nobody should be able to use the legal system as a battering ram to deter victims from taking the often difficult and sometimes traumatic step of exposing themselves and their intimate lives to investigation and ridicule."
"It’s hard enough for the victims of a sexual predator like Trump to come forward without the added chilling effect of having to confront their assailant all by themselves on a distinctly uneven field of legal combat,” Tribe added.
In addition to defending the individual women Trump has threatened to sue, Boutrous also discussed the importance of defending the media organizations threatened by Trump and the new challenges that journalists face when reporting on the wealthy and powerful.
“We’re in a treacherous time in terms of First Amendment rights, because you now have an example of a media organization going out of business because of a defamation claim,” Boutrous said, referring to tech billionaire Peter Thiel’s successful campaign to bankrupt the now-shuttered news website Gawker. (Disclosure: Fusion’s parent company, Univision Communications, purchased the Gawker Media's assets following the latter company’s bankruptcy.)
“You have new ways of funding lawsuits over the last few years—companies and funds that have been created solely for the purpose of funding litigation. It creates new methods for people to mount campaigns against journalistic organizations. That’s something that’s entirely new. I don't think the Supreme Court could have predicted this when they decided New York Times Co. v. Sullivan," he said, referring to the 1964 Supreme Court case that set the current legal standards for defamation against public figures.
On Tuesday morning, The New York Times revealed that the American Bar Association recently commissioned a report on Trump’s litigious history, which called the reality TV star a “libel bully.” Ironically, the Association chose not to publish the report on the grounds that Trump might sue them over it.
Boutrous told Fusion that kind of cowardice on the part of America’s legal community is unacceptable.
“I found that to be mind-boggling. On the one hand it proves the very point that the report that they were declining to publish and edit,” he said of the incident. “I think that the lawyers who are members of that organization should resign in protest and divert their resources over the Media Law Resource Center that published that article in full. That they are afraid to publish the truth? It demonstrates why lawyers need to stand up and say that powerful figures can’t intimidate people participating in democracy through free speech.”
“The impact of the kinds of legal changes Trump has suggested he favors would be to chill, if not entirely to silence, those whose roles as investigators and/or critics drive them to seek and then publish the truth about the conduct of public officials and public figures insofar as that truth might bear on their fitness to play the public roles their positions confer on them,” Tribe said. “And the impact would extend to chilling or silencing the direct victims of abuse perpetrated by public officials or public figures and thereby making those victims fair game for the predators who, like Trump himself, brag to others of their ability to get away with whatever they want to do with those they view as their playthings.”
“For a presidential candidate to make a pledge that he’s going to shrink your First Amendment rights, that is deeply troubling,” Boutrous said of Trump’s plans. “Free speech and freedom of the press are such fundamental values we need to protect them now more than ever.”