Trump's lawsuit against Ann Selzer is textbook authoritarianism
In a sane country it'd be comical. But ...
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Reading the complaint in Donald Trump’s lawsuit against pollster Ann Selzer over her 2024 poll that found Kamala Harris leading Trump in Iowa, it’s hard not to give in to thoughts of how comically obscene it is.
The suit stretches the interpretation of the relevant law — Iowa’s Consumer Fraud Act — well past the breaking point. It leans heavily on “facts” that are nothing but Trump quoting Trump about being mad. It spends a good deal of time citing hard-right outlets like Breitbart as if they are neutral. It’s hard not to laugh at how absurd it is.
But then you remember that ABC just gave Trump a total of $16 million rather than fight the paper-thin defamation lawsuit he brought against them. And that even after ABC knuckled under, Trump still has lawsuits against CBS, Simon & Schuster, and CNN. And then you also remember that Trump has stated he’s going to use all his might — and that of the government — to bury media he doesn’t like.
All of this makes trying to rationally assess whether the lawsuit will succeed nearly impossible.
Trump can afford to go scorched earth whether his claims have any merit or not. He has bottomless wealth, particularly regarding legal fees, as he’s made his donors cover at least $100 million of them so far. He’s utterly unconcerned about whether something is true, and he seems to have a never-ending stream of lawyers willing to step up even though several have ended up facing sanctions, criminal charges, or both. Put simply, he has no incentive to back down, ever.
All that being said, the lawsuit against Selzer is still straight-up trash, even if it’s trash that somehow manages to succeed because of the unique blend of horrible characteristics exclusive to Trump.
The nonsense is the point
Trump is alleging that Selzer, her Selzer & Company polling company, the Des Moines Register (the paper that published the poll), and the Register’s parent company — media behemoth Gannett — broke Iowa’s consumer fraud statute.
To demonstrate this, Trump would have to prove actual fraud — as in that Selzer, the paper, and the publisher knew or should have known that the poll was fraudulent and that they intended people would rely on that fraud. But Trump doesn’t argue anything like that. What he does instead are include random quotes slamming Harris from places like Breitbart and a list of other times Selzer got poll predictions wrong.
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The fact Selzer’s polling hasn’t been perfect would, to a normal plaintiff, cut against the argument that this particular poll was uniquely fraudulent and designed to interfere with the election. But instead, much like the Big Lie, Trump just invents a vast conspiracy: every time Selzer doesn’t have a Republican winning by the exact amount all the way throughout the race, it’s fraud.
So the fact that in 2020, Selzer had Sen. Joni Ernst’s Democratic challenger, Theresa Greenfield, up by three points early on, but as the election drew nearer, had Ernst up four, is evidence of “Selzer's efforts to create suspense where there was none.” Also, whenever Selzer got it wrong — well, whenever Selzer got it wrong by having a Democrat up over a Republican who eventually won, never the other way around — those races “exposed that Selzer and the rest of the Defendants were manufacturing fake support for Democrat candidates.”
Next, pretending for a moment that Trump could show a vast Midwestern conspiracy at work here, there’s the problem of who counts as a consumer. Under the statute, a consumer can sue if they personally suffer a loss of money or property due to the fraud and then can recover “actual damages” — the amount of money they are actually out. If the behavior of the party that committed the fraud is willful or wanton, they can get damages triple their actual damages. They also get reasonable attorney fees if they win.
So, Trump has to show that he suffered some loss that can be calculated — that’s literally what actual damages are. But Trump didn’t lose Iowa, of course, which is kind of the only loss that matters here. Indeed, his complaint goes on at great length about how big he won, bragging that he took Iowa by 13 percentage points even after Selzer’s poll came out and also noting his 2024 showing was better than 2020 (“over 8 points”) and 2016 (“nearly 10 points”). So what loss, exactly, did Trump suffer here?
Trump’s bright idea to get around this is to say that he, “together with all Iowa and American voters,” is a consumer under the statute. It’s not really clear if Trump sees everyone rolled up into one big ball as a single consumer wound around him, Katamari Damacy-style, or whether somehow he gets to dragoon all of us — even those 75 million who voted for Harris or the 90 million registered voters who didn’t vote at all — into his lawsuit. Either way, that’s not how lawsuits work. You don’t get to bring a case that requires you personally to show damages, and when you can’t, just handwave at the entire country and say that it adds up to damages.
Even if such an approach were possible, what damages did all voters in the country suffer? There’s nothing in Trump’s complaint that points to any damages incurred by any voter. Nor does he seek recovery on behalf of those millions of voters who, in his fevered brain, add up to a “consumer” under Iowa law. Nope, Trump only wants damages for himself: “President Trump has sustained actual damages due to the need to expend extensive time and resources, including direct federal campaign expenditures, to mitigate and counteract the harms of the Defendants' conduct. Because the Defendants' conduct was willful and wanton, President Trump is also entitled to statutory damages three times the actual damages suffered.”
Finally, there’s the issue of Trump defining the newspaper in which the poll was published as “merchandise” under the statute. Yes, a newspaper is merchandise, but as Bill Brauch, who led the Consumer Protection Division for the Iowa Attorney General’s office and lobbied for the passage of the state’s Consumer Fraud Act, explained to Laura Belin at Bleeding Heartland, the suit would have to allege that the newspaper engaged in some sort of deception related to the Register’s advertising or sale of those newspapers. But the lawsuit doesn’t do that. Instead, it says that the publication of the poll was misleading, so, magically, the sale of the newspaper was misleading.
Bullying the press into submission
So what happens now? Regrettably, the answer isn’t necessarily the same for all the defendants here.
Gannett has already removed lawsuit from the Iowa state courts to the federal courts. There’s nothing particularly odd about that as such — cases can be shifted to federal court when the parties are in different jurisdictions and the damages claimed exceed $75,000. However, this also puts any loss Gannett would suffer in federal district court in Iowa as getting appealed to the Eighth Circuit Court of Appeals, where only one of the 11 current judges was nominated by a Democrat, and then on up to the exceedingly Trump-friendly US Supreme Court.
To be fair, it isn’t clear that Iowa state courts would handle this case well either, and it may be that Gannett thinks that the federal courts, which deal with media lawsuits more often, are a better bet. But the one thing that is clear is that Gannett is also only looking out for Gannett.
The notice of removal filed by the company is only on their behalf. The other defendants get dragged along, but Gannett is not, at least as of yet, providing a defense on behalf of Selzer, her company, or the Register. The party with the shallowest pockets and the least ability to withstand the juggernaut of endless Trump litigation is Selzer, which makes it hard for her to be the face of taking a hard line against Trump’s war on the media.
Gannett, which owns USA Today and literally hundreds of papers in local markets, has the same perverse incentive to settle and hand Trump a fat stack of cash that ABC did: Paying Trump off is still cheaper than losing access to report on the presidency for the next four years, and much less dangerous than being in Kash Patel’s crosshairs.
Yes, paying Trump to settle his ludicrous lawsuit would set a horrible precedent. Yes, it would teach Trump that threatening the media works, and he will continue to escalate that behavior. But most of all, it would be just another way in which the media is unwilling to meet the moment and stand up to the rising tide of Trumpism.
That’s it for today
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Trump is clearly going to attack all institutions of democracy. None of it is surprising even as it is awful. This is what was in store for us.
What will be the future of polling? If the media is afraid to release polls, we will increasingly be subject to only the polls that Trump himself develops and spreads on the right wing friendly media like his own platform and that of X. Other countries should already be banning X, and perhaps Truth Social as well.
In Australia, I'd like to believe that Trump would be deemed a 'vexatious litigant' and would have to make an application to a judge who would cast a careful look at the merits of the case before being allowed to proceed. Does America have this sensible procedure.