Who Was the Audience for Trump's "Tedious and Burdensome" Allegations Stated in "Abundant, Florid, and Enervating Detail?"

Perhaps one of the most disorienting aspects of living through our current times is the mix of menace and buffoonery that emanates from President Trump and his agents. Even as Trump and his allies inspire fear by silencing academics for wrongthink and comedians who criticize him, he invites ridicule as a buffoon by nearly everything he says, such as repeatedly mispronouncing Azerbaijan and confusing Armenia with Albania. Or, just yesterday, struggling to sound out "acetaminophen" and then saying this actual thing while dispensing dubious medical advice about childhood immunizations: "It’s too much liquid, too many different things are going into that baby at too big a number."

Meanwhile, we have every reason to be made anxious by the conspiracy theorist who was standing beside Trump when he made that eloquent statement. The man whom Trump made Secretary of Health & Human Services to "go crazy on health" is doing exactly that by canceling vital research and making safe and effective vaccines more difficult to obtain; yet, with every word RFK Jr. utters he reminds us of the many reasons to laugh at a man who has boasted about dumping a dead bear in Central Park and whose actions seem to be guided by the dead worm in his brain.

Nonetheless, it would be a mistake to dismiss the menace in light of the buffoonery. One can be a buffoon and an autocratic menace at the same time. Mussolini was seen as a clown. Idi Amin was called "a madman, a buffoon." Kim Jong-Il made risible claims about his golfing prowess.

Trump's war on the press is a case in point. His legal filings against CBS for standard editorial practices (in promoting an interview with Kamala Harris) and against ABC for the use of the vernacular rather than technical legal language (in coverage of the civil judgment against Trump in the E. Jean Carroll case) when addressing a general audience were ridiculous--arguably sanctionable in their absurdity. So too, as I detailed last week, FCC Chair Brendan Carr's gripe against ABC-affiliated local stations was factually absurd (because Jimmy Kimmel was at most mistaken and thus had not engaged in the "sickest conduct" that Carr fatuously claimed he had) and based on a view of the law that Republicans labored hard to disavow 38 years ago. And yet, in each of these instances, the fear of retribution led the media companies to succumb to bullying by the buffoons.

Happily, ABC/Disney has reversed itself on Kimmel, at least for now. And thus far, neither the Wall Street Journal nor The New York Times has bowed to the pressure by paying Trump off for the nominal purpose of settling frivolous lawsuits in order to avoid Trump's corrupt use of government regulatory power against them in some other context. Indeed, last week, amidst all the grim news, there was one heartening story: a federal district judge in Florida struck Trump's over-the-top complaint against the Times.

In his terse (four double-spaced pages) and highly entertaining opinion, Judge Steven D. Merryday dismissed Trump's 85-page complaint for failure to comply with Federal Rule of Civil Procedure 8, which requires that pleadings be "short," "simple, concise, and direct." As Judge Merryday observed, the Trump complaint is anything but. It is larded with hyperbole about, for example, Trump's "historic" victory in the 2024 election. It also contains obviously ridiculous boasts, such as the claim that "President Trump built much of New York City's famed skyline."

Federal court litigators and law students who have made it through the first few weeks of a civil procedure class know that dismissals on Rule 8 grounds for verbosity are unusual. Especially since the Supreme Court's rulings in Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009) (collectively "Twiqbal"), lawyers have had an incentive to include more, rather than less, detail in their complaints, lest they be dismissed under the Twiqbal plausibility standard. More, and more detailed factual allegations render plausible what might otherwise seem implausible averments. Thus, federal district judges typically cut lawyers considerable slack to include allegations that go beyond the minimum that Rule 8 requires.

Meanwhile, as Judge Merryday's ruling itself illustrated, not much of practical significance turns on whether a plaintiff's complaint includes repetitive and unnecessary material. He struck the complaint as improper but allowed Trump and his lawyers to file a superseding and shorter complaint within 28 days. Unlike dismissal under Rule 12(b)(6) for failure to state a claim, striking a complaint under Rule 8 is not a decision on the merits.

A defendant can file a motion to strike a complaint, but the Times did not do so here. Judge Merryday acted sua sponte, i.e., on his own. Why? No doubt some in the MAGA-verse will conclude that Judge Merryday is a "radical left lunatic." Yet he was appointed by President George H.W. Bush and, before last week, was probably best known for his decisions invalidating pandemic restrictions on cruises and siding with a Navy Commander who claimed a religious exemption from the obligation to be vaccinated. In MAGA-land, anyone who does anything to oppose Trump is, ipso facto, a radical left lunatic, but by any objective standard, Judge Merryday is a conservative judge who happens not to wish to see his courtroom misused.

So much for Judge Merryday's motives. What about those of Trump's lawyers? Notwithstanding Rule 8, it is fairly common for lawyers to file lengthy complaints that go well beyond the minimum, indeed, that go well beyond what is necessary to satisfy Twiqbal. They do so for a number of reasons.

First, in the event that the defense files a motion to dismiss under Rule 12(b)(6), the complaint's allegations will be the de facto factual record. The district judge is required to assume the truth of the complaint's (plausible) factual allegations. In the event that the district court grants the dismissal motion, those allegations will then serve as the record on appeal, where they again will be assumed true.

Second, a complaint that goes beyond the requirements of Rule 8 and Twiqbal can serve as a kind of advocacy. It is not necessary to provide legal arguments in a complaint. But lawyers frequently include them to work the ref in advance. A strong complaint that makes evident that the plaintiff has a strong case can also induce defendants to consider settling on terms favorable to the plaintiff.

Neither of those rationales applies to the Trump complaint because none of the unnecessary factual detail and hyperbole does anything to advance Trump's legal case--which is, at bottom, that The Times, some of its reporters, and Penguin Random House, which published a book about Trump, exhibited actual malice by writing and publishing material they knew to be false. All that was really required for that were references to what was written and published and allegations that these were knowingly or recklessly false statements.

A third common reason for added detail in a complaint does have some application to the Trump complaint. Lawyers are often speaking not only to the court and the defendants but to the public. That's certainly true in much public interest litigation, but it's also very common in defamation actions, where plaintiffs wish to repair their reputation. Trump's biggest gripe in the complaint at issue appears to be that he doesn't like the fact that he was portrayed as a bad businessman. Making bold assertions to the contrary is a way to counteract that view.

But that's only a partial explanation for the complaint's hyperbole and verbosity. Indeed, at a certain point the over-the-top hyperbole seems counterproductive to any aim of polishing Trump's public reputation. It's a bit like the claim by Kim Jong-Il's propaganda machine that the very first time he golfed, and on a 7,700-yard championship course no less, the diminutive dictator notched eleven holes-in-one. So many of Trump's claims are so preposterous that they lead the reader to think that even the facially plausible ones are probably false too.

If the primary audience for the Trump complaint against The NY Times et al is neither the court, the defendants, nor the public, then who is it? The answer, obviously, is Trump himself. His lawyers charged with drafting the complaint were in the same position that Trump's cabinet of sycophants find themselves whenever they are gathered 'round the big table and required to attempt to outdo one another in expressing admiration, gratitude, and even love for the god-like president.

The challenge for Trump's lawyers going forward will be to craft a new complaint that is sufficiently short and to the point to satisfy Judge Merryman while also including enough praise for Trump the Magnificent to avoid incurring the latter's wrath. It's no easy task. If they were prudent, they got hefty retainers--because, whatever Trump's shortcomings in business, he's the undisputed master of not paying his bills.

--Michael C. Dorf