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Michael Cohen, Trump’s long-time lawyer, goes to jail for three years. In his guilty plea, Cohen states that Trump ordered the payoff of Stormy Daniels, so that just prior to the 2016 election she would not disclose Trump’s sexual encounter with her. But Cohen’s declaration directly contradicts the dismissal of Daniel’s slander action against Trump, to the effect that he lied in denying the encounter ever happened.

Daniels versus Trump

The defamation lawsuit concerned a “tweet” by Trump. The federal court described the situation as follows:

Although Trump was not the President at the time of the purported affair [with Daniels] or the purported threat that Plaintiff received [from an unknown man in a parking lot], Trump is now the President and was the President at the time of the tweet. Moreover, Trump issued the tweet in the context of Plaintiff publicly styling herself as an adversary to the President, including in filings before this Court. (See, e.g., First Amended Complaint in Stephanie Clifford v. Donald Trump et al. at ¶ 17, No. 2:18-cv-02217SJO-FFM (arguing that "Mr. Trump, with the assistance of his attorney Mr. Cohen, aggressively sought to silence Ms. Clifford as part of an effort to avoid her telling the truth, thus helping to ensure he won the Presidential Election").) The tweet in question, therefore, relates to an issue involving a public official on a matter of public concern.

The Court agrees with Trump's argument because the tweet in question constitutes "rhetorical hyperbole" normally associated with politics and public discourse in the United States.

The Court agrees with Trump's argument because the tweet in question constitutes "rhetorical hyperbole" normally associated with politics and public discourse in the United States. The First Amendment protects this type of rhetorical statement. "It is well settled that 'the meaning of a publication, and thus whether it is false and defamatory, depends on a reasonable person's perception of the entirety of a publication and not merely on individual statements." See Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002) (quoting Turner v. KTROK Television, Inc., 38 S.W. 3d 103, 115 (Tex. 2000)). To assess whether a statement is "rhetorical hyperbole," this Court looks to the statement "as a whole in light of the surrounding circumstances and based upon how a person of ordinary intelligence would perceive it."Mr. Trump's tweet stated as follows: "A sketch [by Daniels of the man who threatened her] years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!"

How would a person of ordinary intelligence perceive Trump’s tweet? Remembering, too, that if it could be perceived as false, Daniels would be on her way to showing defamation.Trump is stating that Daniels created a sketch of a “nonexistent man,” and that this was a “total con job,” playing the media for fools (except that the media knew she was doing this.)

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Daniels had alleged that Trump caused the man to threaten her. So his statement that the man was “nonexistent” was either a lie (because Trump know that the man existed), or statement based on no information (because Trump knew nothing about the man). Calling her statement a “total con job” (a complete lie) was either totally false because Trump knew that her statement was true or a statement with no basis and therefore a lie, because Trump had no reliable information about it. Either way, in other words, Trump was telling a falsehood.Was this statement “rhetorical hyperbole”?

Was it “extravagant exaggeration employed for rhetorical effect”? The Court says that “Specifically, Mr. Trump's tweet displays an incredulous tone, suggesting that the content of his tweet was not meant to be understood as a literal statement about Plaintiff. Instead, Mr. Trump sought to use language to challenge Plaintiff's account of her affair and the threat that she purportedly received in 2011. As the United States Supreme Court has held, a published statement that is "pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage" cannot constitute a defamatory statement.

Had some person other than Trump made such a statement, one might say that it included an “incredulous tone.” But most if not all of Trump’s statements critical of others includes this tone, which means that Trump never means to convey a literal statement about others. Had Trump used the same tone but accused Daniels of being involved in a murder, it would be difficult to ignore.

The accusation that Daniels was fabricating a “total con job” was not meant to be ignored. In her allegations, Daniels specified that she was seeking to learn if Trump had in fact caused the “nonexistent man” to threaten her. Labeling this a “total con job” means that Trump wanted all listeners to ignore what she described as a serious threaten to her personal safety.

The decision against Daniels is on appeal. The judge who made the ruling is a Republican appointed by George W. Bush, and the appeal will be to the 9th Circuit, which is notoriously liberal. There’s a strong possibility that the case will be overturned.

michael hertz

Michael T. Hertz