PASADENA, Calif. (CN) – An attorney for President Donald Trump told a Ninth Circuit panel Tuesday adult film star Stormy Daniels’ defamation lawsuit against the president was an attempt to silence him after he questioned her story of being threatened to keep quiet about an alleged affair between them.
Daniels, real name Stephanie Clifford, claimed a man threatened her in a Las Vegas parking lot in 2011 to keep quiet about her alleged affair with Trump.
After Daniels and her then-attorney Michael Avenatti released an artist’s sketch of the man who supposedly threatened her, a Twitter user posted a comparison between Daniels’ ex-husband and the alleged attacker.
Trump replied to that user’s post on Twitter and wrote, “A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!”
Daniels sued for defamation, saying Trump’s tweet painted her as fabricating both the crime and the existence of an assailant.
U.S. District Judge S. James Otero granted Trump’s special motion to dismiss the claims under the Texas Citizens Participation Act, or TCPA. In his 2018 order, Otero found Daniels failed to make a proper claim under the Texas law where she lives.
Trump’s attorney Charles Harder told the panel Tuesday that Trump has a right to tweet any opinion or hyperbole and that Daniels failed to show the president acted with any malice.
“This is vintage hyperbole,” Harder told the panel, adding the dismissal was in line with laws preventing a strategic lawsuit against public participation, or SLAPP.
U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama appointee, asked Harder whether Trump’s tweet could be construed as a statement of fact.
Harder told Nguyen the tweet was posted within the context of a third-party Twitter user’s post.
“Within this context, it’s hyperbolic,” Harder said. “[Trump] is saying, ‘I don’t believe this’ and that she has credibility issues. It’s the modern-day equivalent of calling B.S.”
U.S. Circuit Judge Kim Wardlaw pressed Harder further.
“In essence, Trump is saying Stormy is lying,” said Wardlaw, a Bill Clinton appointee. “Is that a statement of fact that can be proven later?”
Harder noted the lack of the word “liar” or “lying” in the president’s tweet. “He didn’t use those words,” Harder told the panel.
Daniels’ present attorney Clark O. Brewster told the three-judge panel that the TCPA, Texas’s version of an anti-SLAPP statute, should never have been applied in federal court.
“The court bootstrapped [TCPA] into a heightened analysis,” said Brewster, who is with the firm Brewster & De Angelis. He said TCPA conflicts both with federal court rules regarding burden of proof and with Fifth and Ninth Circuit decisions in similar cases.
In court papers, Harder argued TCPA applies in Daniels’ case.
“The Texas anti-SLAPP law applies to this action,” Harder wrote in the brief. “Under applicable choice-of-law principles, the law of the state of the plaintiff’s domicile governs a defamation claim.”
Brewster told the panel Trump knew his tweet painted Daniels as a liar and that Otero should not have found his tweet was hyperbolic.
“His default is to be reckless in statements daily,” Brewster said.
Daniels – who was present in the Pasadena, California, courtroom Tuesday – seeks reversal of Otero’s ruling in order to proceed to discovery and a trial on the merits of her claim.
Daniels’ defamation claim was filed as part of her federal lawsuit against Trump in which she sought release from a nondisclosure agreement she signed to keep quiet about her alleged affair with the president.
Otero dismissed the lawsuit as moot and awarded Trump’s legal team attorney’s fees after the president filed a covenant with the court asserting the agreement with Daniels was unenforceable.
Avenatti is the subject of a federal trial in New York where prosecutors say he tried to extort Nike for tens of millions of dollars by threatening to go public, just before a quarterly earnings call, with misconduct allegations against Nike employees.
Chief U.S. Circuit Judge Sidney Thomas, a Clinton appointee, rounded out the panel, which took Daniels’ appeal under submission.