Donald Trump: I was going to sue you. I was seriously going to sue you because of that one story. I have a good lawyer.
Tim O’Brien: The one in September?
DT: The one we were arguing about with your lawyer, who by the way, was very good. The guy …
TOB: David McCraw?
DT: Yes, he’s a great lawyer. You know why? He’s got a great way, a great bedside manner if he were a doctor.
—Donald Trump interview, Feb. 16, 2005
SEPTEMBER 23, 2016. It had been a bad day on La Jolla Cove. The waves broke hard and my kayak kept getting pushed back out toward the ocean. My son had long before made it back to shore by the time I managed to drag myself in through the swell. “Where have you been?” he asked, the 27-year-old libertarian, helpful as always. This was the short break I was taking in San Diego, a couple of days away from the unrelenting craziness of work and the overheated presidential campaign. Election Day was still more than six weeks away. I was wet and tired and miserable. As we drove away from the beach, we stopped at a Starbucks so I could fish my iPhone out of the pile of dry clothes on the back seat of the rental car.
I clicked on an email from Sue Craig.
David,
Can you call me when you have a chance? I have what may be a partial copy of Trump’s 1995 tax returns and Matt P wanted me to touch base with you on it.
Sue
Long ago I had learned not to be thrown off by the too-cool-for-school casualness with which reporters contacted their attorney. It is, in a way, a good thing, a testament to the freedom of the press in the United States, where so much is allowed that reporters often think of legal concerns as passing inconveniences, speed bumps on the road to reporting and photographing. No need to fret. When I was the newsroom lawyer at the New York Daily News in the days right after 9/11, a reporter called me to just sort of let me know that he and a photographer had been arrested trying to scale the security fence at one of New York City’s reservoirs in Westchester County. They were trying to show how easy it would be for terrorists to poison the city’s water supply—the old “if two out-of-shape journalists could do it, imagine what those buff jihadists could do” approach to reporting. He thought it might be helpful for me to talk to the local chief of police, who apparently failed to share the reporter’s expansive views of the First Amendment and the importance of a free press in America. I have been called by reporters who managed to get to the home of a terrorism suspect before the authorities and wanted to know what I thought about going through the guy’s garbage—“I mean, it’s right there ready to be picked up by the sanitation department.” Once, in 2016, in the middle of the immigration crisis in Europe, I received an alarming report that our photographer Tyler Hicks and two of our other journalists had been detained for entering a refugee camp in Greece without permission. I called Tyler’s cell phone. He answered. It was his fault, he said; he went somewhere he wasn’t supposed to go—he is a photographer, after all—but everything was fine. The journalists were pretty sure they were about to be let go and given their equipment back. Besides which, I was interrupting. They were just sitting down to eat with the officers who were holding them. Tyler later texted his editor, David Furst: “Yeah man. They’re giving back all our stuff. Just waiting for something from Athens. The guy who detained me wants to stay in touch. He was married to a woman from Connecticut and lived there for a while.”
Somehow, Donald Trump’s tax return seemed different, not the sort of thing you offhandedly mention in a two-sentence email. The game of hide-and-seek—will he or won’t he release the returns?—had been front and center in the campaign for months. By late September, when Sue’s email arrived, it had become apparent that no tax returns were going to be disclosed before the American people went to the polls in November. I called Sue.
She described how an envelope had shown up in her Times mailbox (with Trump Tower listed as the return address). Inside were what appeared to be some pages from Trump’s 1995 state tax returns from New York, New Jersey, and Connecticut when he filed jointly with his then-wife Marla Maples. No note. No way to know who sent them. No way to know whether they were real. Sue and others were going to try to figure out discreetly whether they were authentic. I told her that we were legally free to possess them—a topic we would return to a few days later, and then again and again.
For all the uncertainties surrounding Sue’s documents, I knew three things for sure when I hung up: The Times was not about to put the envelope aside. If there was any way for journalists to confirm that the documents were real, Sue and her colleagues were going to find it. I also knew that no one in the newsroom was going to barge ahead with a story that wasn’t bulletproof. Both Sue and I realized the very real possibility that this was a setup—an elaborate ruse by someone to lure The Times into a mistake. With the Trump campaign syncopating every campaign appearance (at least it seemed that way) with anti-press riffs about dishonesty and bias and fake news, we would blow ourselves up if we got this wrong. A story this big, an error that large … it would turn us into everything that Trump falsely accused us of being: craven, inaccurate, untrustworthy, out to get him for getting him’s sake.
And the third thing? I knew that, if we decided to go forward with a story, the Great Trump Lawyer Machine would kick into gear and come rumbling into my life once again. It is one of the subspecialties that one develops as a lawyer for The New York Times: the art of the deal(ing) with Donald Trump’s lawyers.
I began my schooling in this obscure art in 2004 when The Times ran a piece by real estate writer Charles Bagli under the headline “Due Diligence on the Donald” about the “new hit reality show” The Apprentice. In its opening paragraphs, the story said:
Over aerial views of Manhattan’s glittering skyline, he intoned, “My name is Donald Trump and I’m the largest real estate developer in New York.” The camera panned across Trump International Hotel and Tower at Columbus Circle, and he continued: “I own buildings all over the place, modeling agencies, the Miss Universe contest, jet liners, golf courses, casinos and private resorts like Mar-a-Lago.”
So far so good. It was the second paragraph that cut home: “For those who follow the New York real estate market, the show provides something else: a hilarious look at Mr. Trump’s blend of fact, image and sheer nerve.” Charlie went on to slice and dice the real estate numbers and show that no matter how you counted, developers like Leonard Litwin, Stephen Ross, and the Elghanayan brothers were bigger in the residential real estate business, and the same story played out for commercial real estate development.
Trump’s lawyers—from a small firm at 40 Wall Street, a building that happened to be owned by a certain real estate developer and reality TV star—raced to his defense, blasting the story as a “vindictive and personal attack,” demanding a correction and threatening a lawsuit. Donald Trump was the largest real estate developer in New York. Period.
I am not the sort of lawyer who sees much purpose in arguing about the facts. The guy was either the largest real estate developer in New York or he wasn’t. Maybe the lawyer could give me the list of properties and the numbers. We would look at them and decide whether a correction was warranted. The facts were the facts. In time, the list came in. I looked over the properties and suddenly felt compelled to point out to Trump’s lawyer that—just to take one example—Palm Beach is not in New York. There ensued one of those “you have to be a lawyer to engage in this sort of thing; please shoot me now” discussions about whether the statement “the largest real estate developer in New York” means “the largest real estate developer who lives in New York” or “the largest real estate developer of properties in New York.” Not that it mattered. Donald would not top either list. Corrections were demanded. Lawsuits were threatened. We did in fact publish a correction, just not the one that Trump and his lawyers wanted:
CORRECTION: February 8, 2004, Sunday. A picture caption on Jan. 25 with an article about “The Apprentice,” the television series featuring Donald Trump, misidentified the location of the Trump Village residential complex where Mr. Trump was shown with his father, Fred C. Trump. It is in Brooklyn, not Queens.
It was sometimes hard for The Times to keep those outer boroughs straight.
So it went every time we dared to say something critical of Trump. (One of his lawyers once assured me that we were absolutely free to criticize Trump’s hair. That was not a sensitive topic for his client, he advised.) Just a few months later, Trump’s lawyers and I were at it again. The Times Magazine ran a piece, “Trumpologies,” that stated flat out, “Like it or not, Donald Trump is now the No. 1 guy in the world’s No. 1 city.” What was not to love about a piece like that? Yes, there was the bit about Harvey Weinstein:
One afternoon, as we were standing on the steps of the Trump International Hotel and Tower at Columbus Circle, he said, apropos of I don’t know what: “Harvey Weinstein calls—he’s a friend of mine; you know, he’s the head of Miramax—and he says, ‘Donald, you know you’re the biggest star in Hollywood.’ I say, ‘What are you talking about?’ He says, ‘You’re the No. 1 star; you’re a superstar on the No. 1 show in television [No. 4, actually]. You saved NBC.’ I never thought of it, because the rest of the time I’m negotiating with contractors. So I said: ‘You know what? It’s true.’”
But being a bud of Harvey Weinstein’s would not seem problematic for at least another 13 years. And, yes, I had given the NYT Legal’s seal of approval to the paragraph about the Trump hair, taking full advantage of the privilege that had been extended by Trump’s lawyer: “Maybe his hair is as ridiculously concocted as some nouvelle-cuisine dessert, but what does he care? He’s engaged to Melania Knauss, a Slovenian supermodel. (O.K., model.)” The rub for Trump’s lawyers in the magazine story was the same as before: The piece dissected Trump’s claims about how much he owned and found them at odds with the facts unless (as the writer suspected) “owns” means something different to Donald Trump than it does to the rest of the population. More meaningless lawyer back-and-forth ensued post-story with Trump’s attorneys, as it routinely would over the next few years, usually before a story even ran. I developed a boilerplate letter to send—“Any article we publish will be done in accordance with our customary standards for fairness and accuracy.” Nobody on Trump’s side seemed to notice or care that I plagiarized myself when I wrote.
One run-in with the Great Trump Lawyer Machine from those days proved to be a harbinger. In 2005, Tim O’Brien published the book TrumpNation. Tim, then an editor at The Times, had spent hours with Trump, in his car, on his plane, taping interviews and researching the book. During one of those interviews, the conversation bizarrely turned to me and how Trump had almost sued The Times and Tim after Tim had done an earlier story questioning Trump’s claims about his vast real estate holdings (some things never change). Trump admired the “bedside manner” I had deployed to pacify his lawyer and how I had stretched out the discussions endlessly (and pointlessly) for weeks by suggesting maybe somehow some way someday somewhere The Times could run a correction. My run-out-the-clock lawyer-to-lawyer kibitzing had gone on so long that Trump had forgotten what the story was about. Or in his words:
So here’s what happens. A week later, I’m thinking … I’m suing that motherfuckin’ shit. Another week goes by and somebody says, “What are you saying? What do you want to do?” I said, “I don’t know.” What the fuck? I have a photographic memory. I have a great memory. I don’t even remember what the fuck you said … in other words, and I’m the object of the story. So I say to myself, if I have this unbelievable memory and I had to think back to what he said … What the fuck?
TrumpNation, Tim’s book, came out later in 2005, and there was no forgetting it in Trump’s mind. The book, which The Times excerpted, is a rollicking account of Donald being The Donald, capturing the hyperbole, bluster, deceptions, and exaggeration of New York’s No. 1 guy, right down to his taste in movies (Samuel L. Jackson should have won the Oscar for Pulp Fiction). As Tim described Trump, he was closer to Baby Huey, the overgrown and supercilious cartoon character, than former GE chairman and business mastermind Jack Welsh. “He’s Baby Huey with a measure of P. T. Barnum tossed in,” Tim once said. Actually, for all of its 280-plus pages and a cover that shows The Donald as a superhero striding through Manhattan, there was only one page in TrumpNation that made Trump crazy, and it became the only passage he sued over. Tim suggested that, based on reports from confidential sources, Donald Trump was only worth $250 million, tops. He was not the billionaire he purported to be. Tim tracked how Trump’s own estimate of his wealth ebbed and flowed almost day to day, $4 billion in one telling, a couple of billion in the next, and an eye-popping $9.5 billion in a glossy Mar-a-Lago brochure. One day Tim decided to ask Trump about the reports that he was not a for-real billionaire. Trump pooh-poohed the doubters as “guys who have 400-pound wives at home who are jealous of me.”
When the book was published, Trump did what he rarely did: followed up on a threat of a libel suit and actually sued Tim and his book publisher. For reasons that were never clear, he did not sue The Times, even though that passage was dead center in the middle of our excerpt, which had run at the time of the book’s launch. The litigation against Tim and his publisher jerked along for years before the New Jersey courts finally declared Trump the loser.
For The Times, Trump took a different tack. He fine-tuned the strategy that a decade later he would repeatedly use during the campaign. Why litigate when you can just lie? Cheaper, easier, and more likely to succeed if you are any good at it. Right after the excerpt ran, Trump took to his blog (writing as “Donald J. Trump, Chairman, Trump University”).
The fact is The New York Times is going to hell. They published a major story about me on Sunday that they knew was wrong. On Sunday morning, right after the paper came out, my lawyer got a call from a lawyer at The New York Times asking if we wanted to correct the story. He didn’t even wait until Monday, probably because he figured the lawsuits would be filed by then. The paper’s editors knew the story was wrong, but they wanted to try and sell newspapers.… By the way, to the lawyer who called my lawyers on Sunday morning: Don’t worry, we’ll get back to you.
That would be me—the spineless lawyer who had that whimpering Sunday-morning phone call with his lawyer. There was some truth in what Trump had to say. I had called Marc Kasowitz, Trump’s big-time lawyer. It was on a Sunday morning. I was in the Shreveport airport on my way home from a wedding. Marc was in his office preparing for a mega-trial he was handling for the government agency that had owned the World Trade Center. And, true, I was calling him about the Tim O’Brien story that Trump so hated. I had a good reason to call, just not the one that Trump made up. Kasowitz had called me the night before at 10:22. (Inexplicably, I was not in my office on a Saturday night.) I was returning his call. I heard Marc out and then I told him that if they wanted a correction, Donald’s PR people should make their case to our editors. And if they wanted to sue, I couldn’t stop them. I wished him well on his trial (I knew the lawyers he was working with). He thanked me. No correction followed. The Times was never sued. And, no, no one “got back” to me.
If I thought the Great Trump Lawyer Machine would shut down or at least dial it back once Trump went from businessman and TV star to Republican presidential candidate, I was sadly mistaken. The campaign had barely taken off when Times columnist Joe Nocera did the unthinkable: he quoted Tim O’Brien in a column accusing Trump of dealing in snake oil. The letter from Trump’s in-house lawyer Alan Garten was like a defamation-law random word generator: “discredited,” “false,” “misleading,” “blatant factual inaccuracies,” “single unreliable source,” “shoddy”—and that was just one paragraph. It concluded in Trump’s signature style: “Mr. Trump has authorized our legal team to take all necessary and appropriate action against the New York Times, including, without limitation, commencing a multi-million dollar lawsuit.” New day, same drill. I sent my standard response (“no correction is warranted”). We never heard anything more about Joe’s column—without limitation.
In the weeks leading up to Sue’s email about the tax returns, I had been trying to unlock some of the secrets of Trump’s wealth and reports of his personal misconduct in a decidedly old-fashioned way: by suing. Buried in the bowels of the New York State court system were the sealed files of Trump v. Trump from the early 1990s, the divorce papers from his first marriage, to Ivana. Over the late spring and early summer of 2016, I had debated with our senior editors and reporters covering the campaign about whether it was worth going after the papers. New York law has set a high standard for keeping matrimonial papers sealed. We would have to show “special circumstances,” a term that had usually meant that someone had a need for the papers in another judicial proceeding, say, a criminal case involving one of the divorcing spouses. It had never been applied to the desire by journalists to find out what was in a file, no matter how they might dress that up as the public interest. On the other hand, had there ever been a case like this—sealed court records about someone running for president of the United States? And had there ever been a candidate like Donald Trump? Dean Baquet, The Times’s executive editor, understood that bringing the motion would feed into a Trump narrative—The New York Times shamelessly intruding on privacy—but kept saying it just “wouldn’t feel right to know that at some courthouse there was a box of documents about Trump and we didn’t try to get them.” Others were more reluctant to line up as direct adversaries in a court proceeding against Trump in the midst of a campaign in which many of his supporters already saw The Times as a tool of Hillary Clinton, especially if the chances of winning were so anemic. I suggested we might be able to manage the optics if we brought in another news organization to join our motion, so it wasn’t just The New York Times versus Trump. Great idea, everyone agreed. Fox, somebody suggested? Brilliant, but—just guessing here—maybe a long shot. In the end, I convinced Gannett, the publisher of USA Today, to sign on with us.
The legal heartburn was not just that New York law was so unfavorable. It was also that our argument was going to be a little sordid. The facts were not pretty. I knew, of course, that I could put some high-tone public-interest gloss on my papers, add a few paragraphs about transparency and the public’s right to know. I wrote our motion in the way lawyers often do: as if they have just arrived from Mars and assumed that everyone around them is pretty new to the planet, too. One of my opening paragraphs actually read as if I thought the judge might well have spent the past few years locked in the root cellar of his house and not heard tales of this Donald Trump fellow before:
The defendant in this action, Donald J. Trump, is now the 2016 Republican nominee for the Office of President of the United States, and the sealed records address issues directly relevant to the presidential election. From the very first Republican presidential primary debate over a year ago, Mr. Trump’s political adversaries have raised questions about his credibility, his treatment of women, his finances, and his famously litigious nature. The records now under seal in this proceeding may well shed important light on how Mr. Trump exhibited these currently debated aspects of his character and capabilities during an important period in his life. Unsealing them would assist the American public in making an informed judgment in the presidential race.
From that high-minded peak of public interest, the papers rolled out our argument—the voters’ need for information, the special circumstances presented when one of the litigants was running for the nation’s highest office, the long passage of time, the limited privacy interest of celebrities and public figures—until, with nowhere else to go, I finally had to get to the unpleasantness: “Disclosure here may also help to resolve an ongoing campaign controversy over the allegation purportedly made in this divorce action that Mr. Trump sexually assaulted Ms. Trump.” A Trump biographer 25 years ago had reported that Ivana made the allegation in a deposition in the matrimonial action. Prior to the book’s publication, Ivana largely confirmed that was so, but later gave an interview saying that the rape allegation was “obviously false.”
The whole incident had raised its ugly head during the campaign, most notably in the reporting of the Daily Beast. Trump’s lawyer, Michael Cohen, confirmed that Ivana had made the accusation at her deposition, but denied that any such rape had occurred: “By the very definition, you can’t rape your spouse.” The quotation sent lawyers scrambling to find out when New York had changed its criminal laws and made spousal rape a crime (1984). The Trump campaign responded to the story by unfurling a statement from Ivana saying the story “is totally without merit.” Nothing is a bigger giveaway that lawyers are involved in writing a celebrity’s public statement than the precious lawyerly phrase “without merit.”
I had no qualms about seeking the documents. The guy was running for president. The documents should be public. Maybe they vindicated him; maybe they didn’t. But people had a right to see them before they went to their neighborhood polling stations and colored in the bubbles for the candidates of their choice. But writing those paragraphs was one more reminder of how very, very different a campaign this had become. My young associate Tali Leinwand, a brand-new lawyer, turned herself into our in-house expert on all things related to the first Trump marriage. A copy of Ivana Trump’s For Love Alone became a permanent fixture on the corner of her desk. So much for Jefferson and Madison or the U.S. Constitution and Times v. Sullivan.
The judge was not moved by our arguments. On September 22, the day before Sue Craig’s email about the tax returns, the order came down. “Were the court to make the confidential records available for journalistic, and thus public, scrutiny, it would impermissibly inject itself into the process by making the value judgment of what information is useful in determining the present candidate’s, or any other candidate’s, fitness for office.” It didn’t make a lot of sense. By keeping the records sealed, the judge was in fact making the very decision he claimed not to be: deciding that this information should not be available to the public to determine a candidate’s fitness for office. That box of documents that Dean Baquet saw in his mind’s eye sitting in the corner of a courthouse basement somewhere is still sitting there.