In February, I wrote about a particularly fake-haired boneheaded lawsuit that Donald Trump brought against comedian Bill Maher.  As you may recall, Trump accused Maher of breach of contract based on a joke that Maher had made on The Tonight Show with Jay Leno, in which he had jokingly — really, completely obviously, jokingly — offered $5 million to the charity of Trump’s choice (the Hair Club for Men was Maher’s suggestion) if the real-estate mogul-turned-reality-TV-star-turned-national-punchline could provide proof that he was not, in fact, “the spawn of his mother having sex with an orangutan.”  Ignoring the scientific impossibility of humans and orangutans being capable of producing offspring, and surely torturing his poor lawyer (whom he conscripted to respond to Maher), Trump purported to “accept” this offer by sending Maher a letter enclosing a copy of his birth certificate (short form only, though!) and demanding payment of the $5 million.  When Maher did not respond to the letter, Trump went bananas and filed a lawsuit.

After recounting Bill Maher’s hilarious response to the lawsuit, I boldly joined the near-consensus of legal observers in predicting that Trump would lose the lawsuit.  And I’m here to report, I was wrong — Trump never even had a chance to lose the case, because he dismissed the lawsuit himself, perhaps as a result of his lawyers reaching the same conclusion I did.  (Or perhaps, Trump’s simian brain finally realized that the situation had evolved beyond his control.)


Sadly, now that The Donald has apparently learned what a joke is and what a contract is, those of us who regularly watch Bill Maher’s show will probably no longer get our weekly dose of laughs at The Donald’s expense.  And with that loss, you might ask:  why is this update worth writing about?  Because Bill Maher now has to decide whether to try to make Trump pay for monkeying around with the legal system.

As I noted when Trump’s case first bombarded the headlines with its inanity, Maher’s menu of potential responses to Trump’s lawsuit included a so-called “anti-SLAPP motion,” a type of motion directed at lawsuits that chill first amendment expression and other exercises of constitutional rights — which, if successful, could make Trump liable for Maher’s attorneys’ fees in defending the claim.  Now that Trump has withdrawn his lawsuit (though, his lawyers insist, only “temporarily”), that option seems to be off the table.  But Maher still might be able to sue Trump for malicious prosecution.

Malicious prosecution actions allow a defendant who successfully fends off a frivolous lawsuit to pursue the defeated plaintiff for damages, such as for attorneys’ fees or emotional distress.  And, while malicious prosecution actions are generally disfavored by courts, so are rich idiots who think the law is a toy to play with.  In other words, just because Trump dismissed the lawsuit voluntarily does not mean that Bill Maher can’t sue him for malicious prosecution.

If Maher decides to proceed with a malicious prosecution action, he would need to prove three things:  (1) that Trump’s lawsuit resulted in a favorable termination for Maher; (2) that the lawsuit was begun with malice; and (3) that it was prosecuted without “probable cause.”

Here, the first element is easily met:  Trump dismissed the lawsuit.  The second element is also probably met (though Trump could at least try to deny it):  Trump’s lawsuit was initiated for an improper purpose, i.e., no reasonable person would file a lawsuit based on the scientifically impossible premise of humans being able to produce offspring with orangutans.  Finally, the third element is probably met:  no reasonable attorney would believe this lawsuit to have merit.

While “good faith reliance on the advice of counsel, after truthful disclosure of all the relevant facts, is a complete defense to a malicious prosecution claim,” can anyone really say that The Donald acted in good faith here?  The Donald probably can’t blame his lawyers for not telling him that this lawsuit lacked merit.  In my own (admittedly, extremely, infuriatedly biased) view, any reasonable person would have known that without needing a lawyer’s advice.

Alas, Bill Maher seems, by temperament, much more inclined toward brutal takedowns on the comedy stage than in the courtroom.  Maybe he can just offer Trump $5 million if Trump can prove that his lawsuit was not conceived by a room full of monkeys working on typewriters who accidentally produced a page that read, “Sue the comedian!”