We previously discussed whether the niece of President Donald Trump, Mary Trump, committed defamation in her recent tell-all book with a passage claiming that President Trump used a surrogate to take his SAT exam to gain entrance to the Penn’s Wharton School. Mary Trump has been hit by criticism that the person identified as fraudulently taking the test had not even met Donald Trump until after he started taking classes at Penn, according to his widow. In response, Mary Trump released a secret recording of President Donald Trump’s sister, retired federal judge Maryanne Trump Barry (left), The recording does contain the allegation and the question is whether it is enough legally if indeed the story was false.

As a threshold matter, some have asked if Mary Trump could be prosecuted for such surveillance without the consent of her aunt.  In New York, taping with the consent of one party is not considered “wiretapping”:

“Wiretapping” means the intentional overhearing or recording of a telephonic or telegraphic communication by a person other than a sender or receiver thereof, without the consent of either the sender or receiver, by means of any instrument, device or equipment.

The answer is that it is not a crime, just crass.  You do not go to jail for being crass in a one-party consent state.  Even without knowing that she was being recorded, Barry expressed concern that she was “talking too freely” but then again she was talking privately with her niece. Right?

It is a truly rotten thing to do to a family member, but this family is not exactly the Waltons. Indeed, Mary seems to show the same consequentialism or relative morality that she ascribes to her uncle.

The recording is devastatingly blunt and embarrassing. Judge Trump responded to the comment by her brother that he might have to send her to the border to deal with all of the immigration issues. Barry was is recorded saying “All he wants to do is appeal to his base. He has no principles. None. None. And his base, I mean my God, if you were a religious person, you want to help people. Not do this.”  She goes on lament President Trump’s penchant for lying: “The change of stories. The lack of preparation. The lying. Holy shit.” She notes that “he doesn’t read” and lacks any sense of compassion or comprehension: “It’s the phoniness of it all. It’s the phoniness and this cruelty. Donald is cruel.”

It also appears that his niece fits much of the same bill.

Now for the torts question. The SAT allegation appears to have been raised without prompting by Barry who was explaining how she got President Trump into college: “He was a brat . . . I did his homework for him” . . . “I drove him around New York City to try to get him into college.” Then she said this:  “He went to Fordham for one year [actually two years] and then he got into University of Pennsylvania because he had somebody take the exams.”

Mary Trump responds “No way! He had somebody take his entrance exams?” Barry then confirms it and says “SATs or whatever … That’s what I believe. I even remember the name.” She identified that person as Joe Shapiro.

Mary Trump then writes the following in her book:

“Donald worried that his grade point average, which put him far from the top of the class, would scuttle his efforts to get accepted. To hedge his bets he enlisted Joe Shapiro, a smart kid with a reputation for being a good test taker, to take his SATs for him. That was much easier to pull off in the days before photo IDs and computerized records. Donald, who never lacked for funds, paid his buddy well.”

As noted earlier, the problem with this account is that Shapiro, who died of cancer in 1999, met Trump at the University of Pennsylvania, at least according to his family. His widow, former tennis champion Pam Shriver, was outraged by the allegation against her late husband who she said was known as a person of the highest integrity.

Let assume for the purposes of tort analysis that the story is untrue.  Would the secret recording meet that standard for defamation?

When it comes to the Shapiro family, there is no risk of a defamation lawsuit. That raises the issue of “defaming the dead” and a common law doctrine. The common law rule is that “you cannot defame the dead,” which of course means in practical terms that you can defame the dead. Once again, I have long been a critic of that rule, here.  Publishers and movie producers often wait for figures to die to have full license to defame them with no recourse to the family.  As I said in 2007:

“Indeed, while most people are raised not to speak ill of the dead, the law fully supports those who do. Under the common-law rules governing defamation, a reputation is as perishable as the person who earned it. It is a rule first expressed in the Latin doctrine actio personalis moritur cum persona (“a personal right of action dies with the person”). The English jurist Sir James Stephen put it more simply in 1887, “The dead have no rights and can suffer no wrongs.” In other words, you’re fair game as soon as you die — even if writers say viciously untrue things about you and your life.”

The current controversy highlights the unfairness and harm caused by this common law rule.

However, President Trump could sue.  The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. President Trump would have to prove that his niece had “actual malice” where she had actual knowledge of the falsity of a statement or showed reckless disregard whether it was true or false.  The failure to confirm these facts of when the two men first met would be a compelling claim despite the high burden created by the Supreme Court.

But she had a source.  Not only did Judge Barry say that this was a fact but that she had personal knowledge of the scheme. Mary Trump then confirmed that there was a “Shapiro” who was at Penn and friends with President Trump. Is this enough?

Most newspapers require at least two sources for such an allegation.  Mary Trump had only one. However, this was a close family member claiming personal involvement in his education. Yet, she does not state that she was personally involved in this scheme. She recalls a common name and says that Trump “had somebody” take the exam.  That would not appear first-hand knowledge or direct involvement by Barry. Yet, the book states it as a fact without even saying that this was according to one witness or rumor.

Under these circumstances, most courts would likely let this go to a jury to determine if Mary Trump showed reckless disregard in relying on one source without personal knowledge.

President Trump has not pursued his signature litigious approach to this publication.  There is good reason to be cautious. First, “truth is a defense to defamation.” Thus, Mary Trump would be allowed full discovery to prove that, regardless of her lack of sourcing beyond Barry, the statement was true. Second, there may be further sources available to support Barry’s account or Barry herself may have more to share.

Notably, at the end of the article, Mary Trump notes that Barry has never spoken to her since the book and “if she never contacted me, and I think that’s fair. I understand why she would not want to.” That may be the most objectively true point of the entire affair.