This is how the complaint describes the defamatory content the NYT alleged in an opinion piece that the NYT published on March 27, 2019:
On or about March 27, 2019, The Times published an article by Max Frankel entitled “The Real Trump-Russia Quid Pro Quo” (the “Defamatory Article”), which claims, among other things, that “There was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy because they had an overarching deal: the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy, starting with relief from the Obama administration’s burdensome economic sanctions. The Trumpites knew about the quid and held out the prospect of the quo.” On information and belief, The Times published the Defamatory Article in The Times’ print and online editions.
The legal standard was established by the Supreme Court in the 1964 case, New York Times Co. v. Sullivan. The Sullivan decision held that if a plaintiff in a defamation lawsuit is a public official or person running for public office, he or she must (1) prove normal defamation, i.e., publication of a false defamatory statement to a third party, and (2) prove that the statement was made with actual malice. Actual malice requires a proof that the defendant either knew the statement was false or recklessly disregarded whether or not it was true.
Legal experts dismiss the president's lawsuit as nonsense and not close to the legal standard needed for defamation of a public person such as the president. One expert writing for the Washington Post commented:
"On Wednesday, Donald Trump became the first sitting president ever to file a defamation lawsuit against a news organization. The lawsuit against the New York Times is almost certainly dead on arrival in the courts, but it exemplifies the threat the Trump presidency poses to First Amendment values and freedom of the press.
Frankel cited published news reports about the Trump campaign’s interactions with Russians, including the June 2016 Trump Tower meeting and former national security adviser Michael Flynn’s guilty plea for lying about whether he discussed sanctions relief with the Russian ambassador during the transition. Based on these and other “known facts,” Frankel expressed his view on what he called the “real” deal between the Trump campaign and Russia.
As the Supreme Court declared in its landmark 1964 decision in New York Times Company v. Sullivan, the First Amendment embodies our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'"
It isn't clear at all to me that this lawsuit is frivolous. The Supreme Court created the Sullivan standard and the Supreme Court can reverse itself in any later case. The reversal can be a 5-4 decision even thought the original Sullivan decision was a unanimous 9-0 vote. All the president needs is five supreme court votes to make Sullivan go away.
If that happens, the president will still need to prove that the NYT was negligent in making a defamatory statement. A defense against such a proof is truth. Thus, if the NYT could try to prove there was an unspoken quid pro quo using the circumstantial evidence available to the public and whatever they could dredge up in discovery if the case goes that far. On his side, the president has plausible deniability, which is a powerful and usually effective shield for liars, white collar criminals and politicians in hot water.
To win here, even if he loses, all the president needs to do is get rid of the Sullivan standard. If that happens, it will go a long way toward muzzling the press. When Trump calls the press the enemy of the people, he means it literally. The president very much wants to shut the press up and have radical right sources like Fox News, Sinclair Broadcasting, Breitbart, Rush Limbaugh and InfoWars established as the new standard bearers of news for the American people.
With any luck, the courts, including the Supreme Court will view this lawsuit as frivolous and toss it out. But given the radical right extremism of the people that GOP presidents, Trump, the old GOP and the current Trump Party senators have put on the Supreme Court, all bets are off. It will take a couple of years for this lawsuit to get to the Supreme Court. Only then will we know if this is frivolous or not.
And, if Ginsberg has to retire or the president is re-elected in 2020, the odds of this being not frivolous goes up significantly.
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