An attorney representing Stormy Daniels in her legal battle with President Donald Trump is requesting that a panel of federal judges reinstate her defamation claim, accusing the president of intentionally tarnishing the pornographic actress’s credibility.
Trump’s 2018 tweet mocked a forensic artist’s sketch of a man whom Daniels said had threatened her in 2011 if she spoke publicly about her alleged 2006 sexual encounter with Trump. The president has denied having sex with Daniels.
“A sketch years later about a nonexistent man,” Trump tweeted. “A total con job, playing the Fake News Media for Fools (but they know it)!”
The sketch had been released by attorney Michael Avenatti, who at the time was representing the adult-film actress whose real name is Stephanie Clifford.
A U.S. District Court judge ruled later that year that Trump’s tweet was protected under the First Amendment and dismissed Daniels’ complaint.
On Tuesday, Daniels’ new attorney, Clark Brewster, went head-to-head with Trump’s lawyer, Charles J. Harder, at the federal appeals courthouse in Pasadena. A ruling was not immediately issued but a published decision should be released in 30 to 90 days.
In court, Brewster focused on what he described as the previous judge’s mistake in granting Trump’s motion under the Texas Citizens Participation Act, which places a higher burden on the plaintiff in defamation lawsuits by making it easier for a defendant to invoke free speech rights and to ask the court to quickly dismiss the lawsuit and make the plaintiff pay the defendant’s legal expenses.
Most states have enacted statutory protections similar to Texas’ against SLAPP (strategic lawsuit against public participation) lawsuits.
Instead, Brewster said, the Federal Rules of Civil Procedure should’ve been applied because the legal battle took place at the federal level. Under this mandate, factual allegations in complaints are viewed “as true and constructed in the light most favorable to the plaintiff,” according to the lawsuit.
Brewster also pushed back against the previous judge’s ruling, contending that portions of Trump’s tweet are verifiable factual assertions.
Trump retweeted another user who wrote “Oops! This is awkward! @StormyDaniels’s EX #IDTheThug” and shared side-by-side photos of the sketch and of Daniels’ ex-husband with an embarrassed emoji.
Harder commended the previous judge’s ruling and contended that the Texas statute was nearly identical to California’s anti-SLAPP statute. He also painted a different picture of Trump’s tweet.
“That one tweet was the only response to the onslaught of publicity,” Harder said, citing television shows and interviews Daniels and Avenatti did about the alleged incident.
Harder held up a copy of Trump’s tweet and read it out loud and emphasized how the president riffed off the original tweet’s “hyperbolic statement.”
Judge Kim McLane Wardlaw pressed Harder as to whether part of Daniels’ allegations could be verifiable.
“Context is important,” he responded. “The district court got it right. This is vintage hyperbole.”
Daniels was ordered to pay nearly $293,000 in attorney fees and $1,000 in sanctions following the previous ruling. Brewster said she hasn’t paid those fees as of this week because an official order wasn’t submitted. If Daniels prevails in her appeal, Brewster said, that order would be moot.
Daniels also sued to void an October 2016 nondisclosure agreement that prevents her from talking about her alleged affair with Trump. Daniels’ request that Trump pay her attorney’s fees are pending in state court, according to Brewster.
Times staff writer Michael Finnegan contributed to this report.