Trump's Absurd Iowa Polling Lawsuit

After the Senate failed to convict Donald Trump on the charges proffered by the House during his first impeachment, Maine Senator Susan Collins gave an unintentionally hilarious explanation for her vote to acquit: Trump, she said, had learned a "pretty big lesson" from the mere fact of impeachment, so, by implication, it was not necessary to actually hold him accountable. Collins was right, but the lesson Trump learned was the obvious one that conditioning teaches, not the one that Collins, in her naïveté (or perhaps disingenuousness) hypothesized.

In the last week, Trump has learned another lesson, this time courtesy of the cowards who run ABC News: If you can win a $15 million settlement for what should have been a losing legal claim against journalists, bring more lawsuits against journalists. The latest is against pollster Ann Selzer, the Des Moines Register, and Gannett, alleging that Selzer's poll showing Kamala Harris ahead of Trump in Iowa on the eve of the election violated that state's consumer fraud law, for which there is a private right of action. 

Interested readers can find Trump's complaint by scrolling down in the story on the Iowa Public Radio website. It's quite the document, filled with the sort of Trumpian vernacular, invective, and hyperbole we've come to expect from lawyers willing to work for the once and future president known for failing to pay his legal bills. It repeatedly uses "Democrat" as an adjective. It takes gratuitous potshots at Harris (in paragraph 9, referring to her as having had "many fatal weaknesses as a candidate"). And even as it boasts that Trump's popular vote 49.8%-to-48.33% margin constituted a "monumental victory" that gives him "an overwhelming mandate for his America First principles," it also alleges that Selzer's poll caused "immense harm to [Trump] himself, to the Trump 2024 campaign, and to millions of citizens in Iowa and across America."

That harm is what, exactly? The complaint contains one count in its prayer for relief. That part of the complaint consists mostly of quotations of the Iowa law establishing the private right of action and assertions that the case fits within them. In only one place does it purport to explain how a poll that turned out to substantially underestimate support for Trump harmed him, in light of the fact that he won Iowa and the election. Paragraph 70 avers that Trump "sustained actual damages due to the need to expend extensive time and resources."

Neither paragraph 70 nor any other portion of the complaint backs up that claim, but presumably Iowa's Rule of Civil Procedure 1.403(1)--which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the type of relief sought"--is construed similarly to the parallel federal rule, which does not require a complaint to offer evidence. Of course, if the case proceeds, Trump would be required to come forward with evidence at some point showing that his campaign did, indeed, spend resources in the final days of the campaign that it would not have otherwise spent. That seems like a tall order, given that Trump did not campaign in Iowa after winning the Republican caucuses there in January. And insofar as the complaint alleges that the Selzer poll had a national impact, are we really to believe that the Trump campaign would have taken it easy if not for that poll?

The other main evidentiary difficulty that Trump's legal team will face if this case proceeds is showing that Selzer intentionally erred in favor of Harris. The complaint provides no suggestion that they will be able to prove that Selzer's inaccurate prediction was anything other than a randomly unrepresentative sample or some other good-faith error. The complaint cites other instances of Selzer polls over-predicting the performance of a Democratic candidate. But Selzer, like all pollsters, can be wrong in any direction. For example, she predicted that Trump would win the 2016 Iowa Caucus, which was ultimately won by Ted Cruz. The complaint also suggests that by leaking her poll results to Democrats several hours before publication, Selzer and/or others revealed that they were in cahoots with Democrats. If proven, such an allegation could perhaps be part of an argument for bad faith, but without much more and more damning evidence, it is hard to see how Trump can possibly show that this was anything other than the sort of bad prediction that pollsters sometimes make.

There are also legal problems with the complaint that might lead to a successful motion to dismiss by the defendants. The most obvious is that Trump doesn't appear to be properly situated to bring a lawsuit under the Iowa law. His complaint correctly quotes the statute's definition of a "consumer" as merely "a natural person or the person’s legal representative," but one would think that to be a victim of consumer fraud, one must provide something of value to the fraudster. So even if Trump can show that Selzer intentionally cooked her poll and that this led him to expend resources he otherwise wouldn't have, it's not obvious that he can recover from Selzer et al. The causal connection may be too indirect.

Whether or not that is true, however, is a matter of Iowa state law, about which I am certainly no expert. So, finally, I'll consider the possibility of a federal defense.

Under the Supreme Court's landmark decision in NY Times v. Sullivan, to prevail in a defamation action against journalists, a public official (or public figure, as subsequent cases hold) must show not only the state common-law elements of a false statement and harm to reputation but also that the statement was made with "actual malice," a term sometimes equated with recklessness. An innocent mistake, even a negligent one, won't do. Justices Thomas and Gorsuch have indicated they would like to re-examine NY Times v. Sullivan, but it remains the law. Moreover, it doesn't apply only to defamation actions. In Hustler v. Falwell, the Court applied its protections to a state tort action for intentional infliction of emotional distress. The same logic would also extend NY Times v. Sullivan to consumer fraud actions against journalists and newspapers.

However, in Trump's suit based on the Iowa polling, the federal defense doesn't appear to add anything. In order to prevail in his fraud case as a matter of state law, Trump must show that Selzer and the other defendants intentionally made false statements. If they can do that, they will necessarily have shown that such statements are at least reckless. Of course, as I've noted above, Trump almost certainly will not be able to show that Selzer was deliberately trying to sabotage Trump (and her own reputation).

Bottom Line: On inspection, the lawsuit against Selzer et al is very weak. However, Trump doesn't need to win his litigation against journalists to get what he wants--which is to terrify the press into going easy on him. Having already won acquiescence from the Washington Post, the Los Angeles Times, and ABC News, on that score he seems to be doing quite well.