【Randy Spears Archives】

Donald Trump might sue the New York Times. The Randy Spears ArchivesTimesmight just want that to happen.

If Trump sues the Timesover its reporting, the Republican nominee for president risks opening up his personal life to lawyers, providing access that would otherwise be private. He'd also almost certainly be the subject of a deposition, in which he, his family and many others would have to answer questions under oath about his behavior with women.

"It's his butler. It's the help around him generally. It's his kids. It's his ex wife. It's his girlfriends if you can identify them ... it's all that stuff," said Stuart Karle, general counsel at North Base Media and an adjunct professor at the Columbia School of Journalism. "It would just be a rich vain of yuck about Donald Trump." 

It all began on Wednesday night when the newspaper published the accounts of two women who claimed to have been groped by the presidential candidate. Trump denied the claims and attacked the Times.

That could have been chalked up to just another dust up between Trump and a media outlet. He's had plenty through his campaign, even operating an informal blacklist that included the Times and other outlets, such as the Washington Postand Politico.

Not this time. The Times,the Trump campaign feinted,had gone too far. Sources from the Trump camp told numerous reporters that a lawsuit was being drawn up. One of Trump's lawyers sent a letter to the Timesdemanding a retraction. The Timesfired back with the legal equivalent of "come at me, bro."

The discovery issue

The newspaper has a good reason to be cocky. A lawsuit would mean that Trump would be subject to a legal process called "discovery," in which lawyers for the Timesare allowed to pore through the relevant histories of those involved in the case.

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In this case, that would mean Trump's sexual and romantic history. The inquisition would not necessarily stop with the women from the Timesstory.

"They might start talking about other women that were involved to see if there was a pattern of conduct," said Chip Stewart, associate dean of the college of communication at Texas Christian University. "They could be asking a lot of questions that would be embarrassing to him."

Tim O'Brien knows this better than almost anyone. Trump sued O'Brien in 2006 over an allegation in O'Brien's book "TrumpNation" that The Donald was worth far less than he led people to believe.

As part of that lawsuit, O'Brien's lawyers deposed Trump as part of the discovery process. Trump was caught lying 30 times.

"Discovery can have a very, very long long arm with people in the business world. And that's why a lot of them are careful about it and aren't as flagrant about threatening to sue people," O'Brien said in an interview with Mashable.

O'Brien, now the executive editor of Bloomberg Gadfly and Bloomberg View, assured reporters on Thursday that they didn't have much to fear. In an article entitled "Don't Fear Trump's Lawsuits. He'll Keep Losing," O'Brien noted Trump will not want to open himself up to discovery.

"...there’s a big difference between Trump threatening to sue and actually suing -- and he often never follows through with his threats anyway," O'Brien wrote. "So exhale and keep reporting aggressively all of you scribes."

A Reuters report found that despite many threats, Trump hasn't sued a newspaper in 30 years.

The Times did not respond to a request for comment on the discovery process.

The legal issue

Maybe Trump would be willing to suffer through discovery if he stood a legitimate chance of convincing a jury that the Timescommitted libel.

Trump, however, stands little chance.

In this case, Trump's lawyers would need to show that the Timesacted with "actual malice" -- meaning that not only are the claims untrue, but that the Timesknew that the claims were untrue. Also, because Trump is a public figure, he would need to prove that those false claims defamed him -- something that the Timeslawyers pointed out will be difficult to do due to Trump's own public statements.

The paper would certainly end up having to pay some legal fees to defend itself against a theoretical Trump lawsuit, but that might end up being money well spent.

Writing on the legal blog Above the Law, Elie Mystal argued that the documents the Times would collect during the discovery process would be extremely valuable to its reporting.

Other documents, or videos, about Trump’s past sexual conduct would become relevant. Trump would be deposed, under oath, about his sexual escapades. The Times would LOVE Donald Trump to sue them over this. They’d never settle. There would be a public trial where all this stuff would come out. They’d win a freaking Pulitzer.

Even if Trump were to sue, none of this would play out particularly quickly. Civil lawsuits tend to drag on for months or years. Trump almost certainly wouldn't be deposed until well after the election.

That's a prospect that wouldn't seem to be appealing to Trump. If he wins, he's a sitting president forced to confront allegations of sexual assault. If he loses, he's a failed politician forced to confront allegations of sexual assault.