Lawyers for the adult-film actress Stormy Daniels and President Donald Trump squared off before a federal appeals court on Tuesday over Daniels’ effort to revive a libel lawsuit she filed over a hard-hitting Trump tweet that appeared to call her a liar.
In the Twitter message, Trump accused Daniels of “a total con job” for claiming that she was threatened by an unknown man in a casino parking lot in 2011— an episode she has suggested was an act of intimidation aimed at hushing up her contention that she and Trump had a sexual encounter several years earlier.
U.S. District Court Judge James Otero, based in Los Angeles, threw out the suit in 2018, ruling that Trump’s tweet amounted to “rhetorical hyperbole” and not an assertion of fact. Otero ordered Daniels, whose real name is Stephanie Clifford, to pay Trump nearly $300,000 in legal fees and sanctions under a Texas law aimed at discouraging lawsuits intended to silence participants in political disputes.
During arguments before a three-judge panel of the 9th U.S. Circuit Court of Appeals in Pasadena, Calif., on Tuesday, Trump’s lawyer Charles Harder defended those rulings and insisted that the president’s tweet did not amount to a factual claim that Daniels was lying.
“It’s important for the full context to be considered,” Harder said, noting that Trump’s message was a retweet of another person’s suggestion that a sketch Daniels released of the man who allegedly approached her about Trump looked a lot like her ex-husband. “This was a hyperbolic statement being made by the third party. And the president made a hyperbolic statement accompanying that and retweeting it. … This was vintage hyperbole.”
Two judges on the panel, however, pressed Harder on whether Trump’s statements could be read as a direct attack on Daniels’ honesty.
“What about the comment … that ‘nonexistent man’?” asked Judge Jacqueline Nguyen, an appointee of President Barack Obama. “Could that reasonably be construed as a statement of actual fact and an inference that this was made up and Ms. Clifford was lying?”
“It’s an opinion,” Harder maintained. “When he says ‘nonexistent’ and he says ‘con job,’ he’s saying, ‘I don’t believe this. I’m not buying it. My opinion is I think she has a credibility issue or she has a veracity issue. I don’t believe her story.’ It’s the modern day equivalent of calling B.S. or saying bunk or malarkey or hooey or garbage or I don’t buy it.”
Judge Kim Wardlaw, an appointee of President Bill Clinton, suggested that Trump might not have been acting as a pundit but as a person denying claims that suggested wrongdoing on his part.
“But, in essence, isn’t what President Trump is saying, he’s saying Ms. Clifford is lying about being threatened by Trump or his agent? Isn’t that a fact that can be proven true or false?” she asked.
Harder replied that Trump never directly called Daniels a liar in the disputed tweet.
“He’s saying, ‘I don’t believe it,’” the Trump attorney said. “He doesn’t use the words that you used, Your Honor. Within the context, it’s an opinion.”
Daniels’ lawyer, Clark Brewster, disputed that assessment, arguing that Trump knew about Daniels’ intimidation claim years ago, which led to language being put in the nondisclosure agreement she accepted about protecting her right to privacy. She ultimately was paid $130,000 during the 2016 campaign in exchange for her silence.
“It was negotiated at the time and known by Trump at the time that this man had accosted and threatened an assault upon her,” Brewster said. “It was in the contract, but then [he] claimed, I don’t know anything about it.”
Harder also described the suit as part of a political attack mounted by Daniels and her attorney at the time, Michael Avenatti. Daniels later had an acrimonious parting with Avenatti, who has since been indicted on fraud and extortion charges — developments not mentioned during the 48-minute argument session held just hours before Trump delivered his State of the Union address on Tuesday.
Trump’s quick legal victory against Daniels was brought about by the statute that Otero, a George W. Bush appointee, applied because of Daniels’ residency in Texas. “The knockout was swift and punishing to the plaintiff,” Brewster said.
However, that ruling may have been undercut by a decision in August in an unrelated case that held that the law used to toss out Daniels’ suit and award Trump his legal fees, the Texas Citizens Participation Act, should not be applied in federal court.
Brewster urged the 9th Circuit panel that heard Daniels’ appear to defer to the earlier 5th Circuit ruling, since that court has jurisdiction over federal cases filed in Texas and applies Texas law more frequently than the courts in other parts of the country.
“The issues of comity control,” Brewster said. “You have to give deference to the sister circuits.”
Daniels’ lawyer also accused Harder of seeking to smear Daniels by using court briefs to discuss her career in pornographic films.
“He went on to talk about how many movies Ms. Clifford appeared in,” Brewster complained. “All the smearing that couldn’t be done in front of the judge below, and he’s done it here.”
Daniels’ lawyer said Trump’s attorneys and Otero violated standard court procedure by making a series of factual assertions that were not in her lawsuit and shouldn’t have been considered at such an early stage of the case.
“None of those facts are before you. That is the maddening issue in this case,” Brewster said. “There’s got to be an evidentiary basis before you make all these conclusions about the goodwill of this man, who, his default is to be reckless in his statements. …I’m proud of my client for standing up and fighting here.”
The third jurist on the 9th Circuit panel, Chief Judge Sidney Thomas, a Clinton appointee, joined the argument session via videoconference and did not question either side.
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