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In what was supposed to be a major policy speech on his first 100 days as president, Donald Trump’s only new proposal was vowing to sue the women who have accused him of sexual assault.
But in response, some prominent First Amendment attorneys are vowing to defend Trump’s accusers pro bono, or free of charge. Ted Boutrous of the law firm Gibson Dunn and Harvard law professor Laurence Tribe have thrown their hats into the ring on social media, and Boutrous says there are others willing to follow suit.
I repeat: I will represent pro bono anyone #Trump sues for exercising their free speech rights. Many other lawyers have offered to join me. https://t.co/LJf6TtmGZU
— Ted Boutrous (@BoutrousTed) October 22, 2016
You can count on me to help with this pro bono, @BoutrousTed https://t.co/hwC2K0TLCB
— Laurence Tribe (@tribelaw) October 23, 2016
Suing all of Trump’s accusers would keep the candidate’s lawyers pretty busy, since there are now 14 women (11 of whom have come forward in the past two weeks) who claim Trump has groped, kissed, or sexually assaulted them.
But Trump is incredibly litigious — he’s been involved in 3,500 lawsuits, even over trivial things like the height of a flagpole. So even though he doesn’t always follow through on his constant threats to sue people, there’s always a very real chance that he’ll make good on his threats.
That means Trump’s speech was a powerful intimidation tactic against any women who are debating whether to come forward; they’d have to decide whether it’s really worth the risk of facing a long, expensive, draining legal battle against Trump.
Having prominent lawyers come forward promising pro bono defenses is a major piece of good news for Trump’s accusers who have already come forward, and for any others who might want to do the same.
But the potential cost of a lawsuit is only one consequence victims face when they come forward with sexual assault accusations.
Trump probably wouldn’t win a court case against his accusers. It would still be a brutal experience for them.
Trump has threatened to sue both the women who’ve accused him of sexual assault and the media outlets that publish their stories for defamation — both of which would probably be a “suicide mission,” Jay Michaelson argues at the Daily Beast.
Trump probably has no case against the media outlets, several legal experts told Vox’s Tara Golshan. Trump is a public figure, which means there’s a higher bar to prove he had been defamed. Trump wouldn’t just have to prove that outlets like the New York Times published something false; he’d have to show that they knew they were doing so.
Trump’s case against his accusers could go farther than his case against the media — but his accusers could also use his own boasts about assaulting women against him. Plus, new tapes may well surface during the discovery process and become part of the public record.
“As with the [Bill] Cosby case, every single woman that Trump has kissed since his clubbing days at Studio 54 would now be a potential character witness,” Michaelson wrote. “These women may be barred from filing their own claims of sexual assault, either by statutes of limitations or by high evidentiary standards, but they’ll be quite free to testify to any encounters they’ve had with Trump.”
Trump would probably make things a lot worse for himself if he followed through on his threats to sue his accusers. But that doesn’t mean he wouldn’t do it.
As we saw during the presidential debates, Trump can’t seem to help fighting back when he feels attacked, even if doing so is a terrible, counterproductive strategy. His actions suggest that if the only way he can take down his enemies is to go down with them, then so be it.
This kind of scorched-earth strategy could get especially ugly in a case about sexual assault, and the Cosby case gives us another window into what this might look like. Trying to prove that a woman’s account of sexual assault is false often involves making brutal attacks on her character, her motivations and actions, and even her sexual history.
In Cosby’s sexual assault trial in Pennsylvania, his defense team tried to discredit his accuser by scrutinizing her behavior after her alleged rape. The fact that she bought Cosby a present and took her parents to meet him was treated as evidence that she wasn’t really assaulted.
It wouldn’t actually be unusual for a victim to do something like this, clinical psychologist Julie Gurner told Vox at the time. Trauma often causes victims to act in counterintuitive ways. And when the victim knows her attacker personally, dealing with that person afterward can be socially and emotionally complicated.
But while our cultural understanding of sexual assault is progressing, that doesn’t always manifest in the courtroom. Scrutinizing an alleged victim’s behavior may not actually tell us whether an assault happened, but lawyers will still do it.
Even if a victim is vindicated in the end, she still may have her character dragged through the mud before that happens. And she may have to spend months or years of her life dealing with the court system. Legal fees or no legal fees, that’s a personally and emotionally exhausting experience that many victims would just as soon not bother dealing with.
It’s one more illustration of why victims have a lot to lose, and little to gain, when they come forward about sexual assault — especially if they’re accusing a powerful man who has the resources and the will to make their lives as miserable as possible.
