Trump's Motion to Depose Rupert Murdoch Before He Dies
I have written some of my own posts (e.g., here, here, and here) and published others by my co-bloggers (e.g., here and here) either delving into or obliquely referring to the sordid life and crimes of Jeffrey Epstein, but I have resisted commenting on the latest round of Epstein frenzy because I have thought it substantially less important than the major developments in the Trump administration's assault on the institutions of constitutional democracy (and its assault on life on Earth). I still think that all things Epstein are a distraction, but today I feel like I need a distraction from the horrid other news.
Accordingly, today's essay focuses on the defamation lawsuit that Donald Trump has filed against The Wall Street Journal, News Corp. (WSJ's parent company), Robert Thomson (CEO of News. Corp.), Rupert Murdoch (Chairman Emeritus of News Corp.), and two WSJ reporters (Khadeeja Safdar and Joseph Palazzolo) who broke the story that Trump once gifted Epstein a birthday card/letter in which Trump's signature did double duty as pubic hair on a doodled naked woman. Trump claims that the story is not merely false but a fabrication and thus defamatory.
My main interest today is the motion Trump's lawyers filed on Monday seeking to compel Murdoch to sit for a deposition on an expedited basis--within fifteen days. The motion purports to give three reasons why Murdoch should be ordered to sit for his deposition forthwith but, as I explain below, it really sets out only one such reason: Murdoch is a sick old (94 to be exact) man and could thus die at any moment, taking to the grave with him whatever he knows about the decision to run the Trump/Epstein story.
Macabre? Sure. But a legal justification nonetheless? Maybe. Let's dig in. Before doing so, however, I'll go through three preliminaries about the lawsuit itself.
(1) The underlying lawsuit is absurd. It is inconceivable that the WSJ would have just invented the entire story. Despite its paleoconservative editorial page, the WSJ has a justified reputation for excellent journalism. It is theoretically possible, I suppose, that the Journal reporters diligently worked to verify that the Trump card/letter in the Epstein birthday book was authentic, concluded that it was, but that it actually is an incredibly effective counterfeit. If so, however, there would still be no liability because a successful defamation suit by a public figure or public official (Trump is both) requires a showing that the defendants acted with "actual malice," sometimes equated with "reckless disregard for the truth." Diligent journalism that honestly results in a mistake falls far short of that liability threshold.
(2) Even if Trump could establish that the story was false and the product of actual malice, a defamatory statement is one that is not only false (and in the case of public officials and figures, recklessly so) but also one that damages the plaintiff's reputation. Yet there is no reason to think that learning that Trump doodled a nude woman and wrote (as the WSJ story says he did) that "enigmas never age" and the other suggestively lewd statements purportedly in the card would damage Trump's reputation.
Trump's long friendship with Epstein is a matter of public record. So is his interest in young women. Here's the first paragraph from a story in People magazine in 2016: "At least four women who competed in a Miss Teen USA beauty pageant told BuzzFeed News that Donald Trump walked into their dressing room while the contestants as young as 15 were undressing." There was also the time that Trump (then 60) said that if Ivanka (then 24) wasn't his daughter, "perhaps [he]'d be dating her." And the Access Hollywood recording. And on and on.
My point is not to rehash Trump's record of lasciviousness or to suggest that it compels the conclusion that he did anything more with Epstein than leer and make lewd comments. My point is that that's all one can infer from the WSJ story either. And for the story to damage Trump's reputation for not being a creep he would need to have a reputation for not being a creep. But he in fact has a (well-earned) reputation for being a creep, so it's highly unlikely that he could show damage to his reputation. (Note that I'm not relying on Trump's also well-earned reputation as a felon, conspiracy theorist, racist, malignant narcissist, or authoritarian. One could be all of those things and yet still have a reputation for sexual probity that might be damaged by a story of the sort that the WSJ ran.)
(3) The fact that Trump almost certainly doesn't have a case against the Journal and the other defendants is not to say that some or all of them won't settle the case by donating millions of dollars to Trump's presidential library fund. After all, Trump had no case against ABC, CBS, the law firms that capitulated to him, or (although it's slightly more complicated) Columbia University. Trump files frivolous lawsuits, signs ultra vires executive orders, and abuses government power in various ways because he knows that even--perhaps especially--persons and organizations with resources can be attacked through regulatory holdups and other illegitimate methods. Trump's FCC could abuse its power to extort News Corp. and thus the defendants in the WSJ case. Or the evil but creative geniuses attacking other news organizations, law firms, and universities could abuse some other lever of government authority. If so, the merits of the defamation case won't matter.
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Turning from the case to the motion for an expedited deposition, I mentioned above that the motion nominally cites three reasons why an expedited deposition is justified. The first is, as noted, Murdoch's age and supposedly failing health. I'll analyze that reason momentarily. But before doing so, I want to show why that's the only plausible reason actually offered in the motion.
The second and third supposed reasons for an expedited deposition are summarized in the motion in this way:
Second, mindful that there presently is no current scheduling order given the recency of the commencement of this action, the parties have not yet conducted their Rule 26(f) conference, and initial disclosures have not yet been served, the requested discovery sought in this Motion is limited solely to Murdoch. Third, Murdoch has an advantage over President Trump as Murdoch is able to defend himself because he has access to all the information and documents related to the below-defined malicious and defamatory Article, and the decision behind deciding to publish it. On the other hand, President Trump has very limited information related to the Article. For these and other reasons that follow, Murdoch would not suffer any prejudice significant enough to outweigh the good cause that exists to grant this Motion.
The lawyers who wrote the foregoing apparently don't understand what a reason for something means. Their second point is not a reason to order an expedited deposition of Murdoch. It's at most a claim that expediting Murdoch's deposition would be less disruptive of the ordinary litigation process than would be ordering depositions of Murdoch plus others. But it doesn't at all explain or justify taking Murdoch's deposition early.
The third point is likewise not an affirmative reason to order an expedited deposition. Even granting everything it claims, the fact that Murdoch's case would not be prejudiced by an expedited deposition is not a reason to order one. It is at most a reason why, if other grounds to order such an expedited deposition exist, prejudice to the defendant isn't a good objection.
Thus, the only thing in the motion that qualifies as a reason for the need to depose Murdoch within 15 days is that he could keel over at any moment. The motion cites a number of cases that do not involve age or infirmity for the anodyne proposition that a court can order an expedited deposition "for good cause." More relevantly, it also cites cases in which a potential witness who might not be available at trial can be deposed early so as to preserve their testimony. I found some other such cases. Most of them involve plaintiffs' lawyers alleging injury seeking to depose their own clients, but there is no reason in principle why the mechanism should be unavailable to preserve the testimony of a defendant.
Accordingly, and although it seems macabre and heartless, Trump's motion is correct that if Murdoch were at death's door, that would be a reason to depose him before he walks through it. But is Murdoch that close to the end? The motion cites his age, the report that he collapsed and fainted while having a breakfast meeting with a journalist in February, that he was hospitalized with a serious case of COVID in 2022, and that within the last five years he "suffered a broken back, seizures, two bouts of pneumonia, atrial fibrillation, and a torn Achilles tendon."
That does indeed sound pretty serious, but it omits the fact that just over a year ago Murdoch got married (for the fifth time) and looked pretty spry for a man his age with the foregoing health challenges. I plugged Murdoch's birth date and sex into the Social Security Administration's life expectancy calculator and got a result of three years. Admittedly, that's an average. Maybe the health challenges of the last several years place Murdoch below that average but my guess is that most 94-year-olds will have had their share of health challenges. On the other side of the ledger we have Murdoch's marriage and the fact that his vast wealth gives him access to the best possible medical care.
Accordingly, if I were the district judge, I would demand more than what Trump's team has offered in the motion to compel an expedited deposition. And given the fact that it's a satellite issue, I'd deny any effort to obtain discovery about Murdoch's health. But I will give the Trump legal team some credit. Unlike most of their legal filings, the motion to compel an expedited deposition isn't completely meritless. Faint praise, I know, but such are the times in which we live.
-- Michael C. Dorf