Tag: Donald Trump

Actual malice, meet demonstrable truth

…not long after Joe Biden had been officially declared the winner of [the 2020 presidential] election, a bunch of disreputable right-wing sore losers—that’s the technical term—began to claim that the Dominion machines had somehow been tampered with, and that votes that had been duly cast for Donald Trump via Dominion machines had been secretly switched over to Biden’s column.

The fact that this thesis was very stupid did not stop it from gaining credence among many Trump voters. These people weren’t just angry that their candidate had lost the election; they were angry that Fox News wasn’t reporting that Trump had actually won the election. In retaliation, many of these Trump fans began to unofficially boycott Fox News, instead tuning in to other right-wing news networks, such as Newsmax, which were much more willing to indulge their conspiratorial fantasies.

Check out more of this nice, fun summary of Dominion Voting systems libel suit against Fox News here.  The libel suit is scheduled to go before a jury in a Delaware court tomorrow, assuming the two sides don’t reach a settlement between now and then.

As a recovering journalist myself, I’ll say it is my belief that it should be hard to get a libel verdict against a journalist, a newspaper or broadcast company.  The U.S. Constitution envisions a free press that facilitates a lively public debate of issues, and in the decision that set today’s judicial standard on libel law, New York Times v. Sullivan, Justice William Brennan wrote for a unanimous court 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.”  The threat of litigation is often used to by people who come out on the bad end of those debates to try to scare a paper or a station into not running tough stories (see: Trump, Donald J.; litigation; threats of).

But that doesn’t mean that those who publish on paper, who broadcast through the air, or who post online, should have a free hand to say anything they want at any time with impunity; those who have truly been libeled do have recourse.  But keep in mind, reputable publications can make a strong defense by proving the truth of what they published: if a published statement is true, it is not libelous or slanderous. (It was not ever thus: courts no longer automatically consider statements that damage the reputation as obviously libelous.)  If what was published is factually true, it is not libelous and you cannot win a lawsuit alleging libel.

In a case where the plaintiff is a public figure or a public official, Times v. Sullivan set a high bar for proving you were libeled by a publication: you must prove that the defendant published a story “with knowledge that it was false or with reckless disregard of whether it was false or not.”  (A term you’ll often hear that is used to describe that state is to say the publication acted with “actual malice.”)  While publication of an erroneous story is bad and hurts the reputation of the publication, it is not a case of libel against a public figure or institution (which Dominion is) if the publication believed the story was true and had done the required work to gather the facts to come to believe it was true.

In Dominion Voting Systems v. Fox, the voting machine company claims Fox defamed the company by “spreading false claims that the company rigged the 2020 presidential election to prevent former President Donald Trump’s reelection.”

As noted in a New York Times story last week,

While legal experts have said Dominion’s case is unusually strong, defamation suits are extremely difficult to win because the law essentially requires proof of the defendants’ state of mind. Dominion’s burden will be to convince a jury that people inside Fox acted with actual malice, meaning either that they knew the allegations they broadcast were false but did so anyway, or that they acted so recklessly they overlooked facts that would have proved them wrong.

During standard pre-trial discovery in this case, Dominion uncovered information from inside Fox that Fox News Channel and its on-air talent and some of its management leaders knew that the claims against Dominion were not true (“with knowledge that it was false”) but published the stories anyway—over and over again—to keep from offending their viewers who believed the claims from Trump and his lawyers and other sycophants of a rigged election (“with reckless disregard of whether it was false or not”).

As it often does, Fox defends itself by wearing the mantle of mainstream responsible journalism operating in the public interest; it argues it reported the claims made by Trump and others because they were newsworthy.

Fox has argued that while it understood many of the claims made by its guests about Dominion were false, they were still worth covering as inherently newsworthy. Fox’s lawyers have taken the position that there is nothing more newsworthy than claims by a former president of the United States that an election wasn’t credible.

But Judge [Eric] Davis disagreed.

“Just because someone is newsworthy doesn’t mean you can defame someone,” he said, referring to pro-Trump lawyers like Sidney Powell and Rudolph W. Giuliani, who appeared repeatedly on Fox News and Fox Business in the weeks after the 2020 election and linked Dominion to various conspiracy theories.

The judge admonished Fox’s lawyers, saying they cannot make the argument that the false statements about Dominion came from guests like Ms. Powell and not from Fox hosts. That argument is irrelevant, he said, because the fact remains that Fox is responsible as the broadcaster.

“It’s a publication issue, not a who-said-it issue,” he said.

There’s no guarantee to the outcome of a jury trial, of course…but if I may presume to summarize a closing argument for Dominion:

  • Fox lied about Dominion rigging its election machines to steal the 2020 presidential election from Crybaby He-Man
  • Dominion made every effort to inform Fox that what its guests and its hosts were saying on the air was incorrect
  • Fox knew that the accusations against Dominion that were being made on its programs were lies, but permitted them to continue
  • Dominion suffered monetary losses and losses to its reputation as a result of Fox’s broadcasts, and asks for money damages

Nice and neat, and not confusing.

Fox has been lying on the air to its audience for years, telling them (1) what they want to hear, regardless of whether it is true, and (2) what certain politicians have agreed to parrot, to build political consensus and power.  But this time, it lied about a company that was willing to call them out in a court of law, and the case has landed before a judge who has demonstrated his loyalty to demonstrable truth and facts.  For Fox, that is a whole new kind of audience.

And now, a public service announcement on behalf of America’s sanity

It is the midst of winter here in the Northern Hemisphere…right now forecasters are forecasting their asses off about a major ice storm aimed at a hunk of the South.  The days are still comparatively short, and with the cold weather that has accompanied a lot of rain in our part of the world (is the drought over yet?) I am not alone in looking for more indoor distractions until golf weather returns.

But, please God, not this: American journalism outlets and associated information-providing avenues, would ya stand down on the perpetualization of the campaign for president of the United States!  Stop with the assumption that there is nothing more important to talk about, nothing so critical for me to know about, than who is favored and disfavored by people responding to public opinion polls.  Even if those people are telling the pollsters the truth, who cares right now?!  So much can happen in the months and months before anyone casts a meaningful ballot that these results are pointless; they only serve to keep funds flowing to the political-industrial complex.

It is too early.  It is soooo tiresome.  Even the primaries and caucuses that happen more than six months before the general election aren’t helpful in learning about candidates.  The whole thing has become a proxy for the on-going national food fight on “cultural issues” (that really aren’t even about culture) and not about administering government operations or even on providing leadership on issues.

And, at this point a year away from the first voters voting in the next national election, what you are telling us has proved to be, so often, so very wrong.  In Politico, Jeff Greenfield reminds us that in most recent years the “favorites” at this point do not win the contest.  You remember Howard Dean trouncing John Kerry in 2004, right?  And 2008, when Rudy Giuliani blew away John McCain while Hillary Clinton obliterated that senator from Illinois with the big ears?

The point here is not to argue for a vow of journalistic silence in the long slog leading up to the actual contests; it’s to put that part of the process into context, along with a serious dose of humility. Yes, Trump looks weakened, but are we really ready to anoint Ron DeSantis the nominee before he proves himself on the big stage? Yes, Biden is an octogenarian whose approval rating has been underwater since August 2021, but is anyone in his party really about to challenge his hold on the White House?

If you need something civic to worry about, worry about the government debt ceiling and the on-going budget deficits; give some thought to how our country can help our allies stifle threats from Russia and China; consider the real causes for and possible humane solutions to the humanitarian crisis at our southern border and the budget crisis it’s created for federal and state governments.  You could engage in the speculation about which team will win the Super Bowl or who will be selected as the next head coach of your favorite NFL team.  You could even talk to your friends about who will win The Bachelor, but please promise to do that verrry quietly so the rest of us can’t hear you.  But please leave the next race for president alone for now.

And if you need something to keep you warm on these cold winter days and nights, curl up with The Columbia Journalism’s Review of how American journalism handled coverage of Donald Trump.  There’s something here to warm the hearts of media-haters everywhere.

Florida man referred for criminal prosecution

The House January 6 committee’s investigation has produced all the evidence that should be needed to send a former president to jail.  (Who would have believed we’d ever come to that point in this country?)  Testimony from Republicans – from people who willingly and eagerly worked for the former guy, yet also valued their own good names and reputations and the importance of truthfulness under oath – makes it unavoidably plain, to any clear-eyed person able to honestly evaluate the evidence, what happened.

Before the election was even held and before anyone had been able to count any votes, Donald Trump laid the groundwork for his con by asserting that any election he might lose would of necessity be fraudulent, and his hangers-on assembled baseless “legal” theories to advance the story that Trump was a victim…that all Americans and patriots were victims of Democrats and progressives and America-haters, that the people whom they had let themselves believe were pedophiles and socialists and opponents of fascism and Trump-haters had stolen their country.

As the votes were being counted the Trumpers pursued dozens of cases in court – in many cases, shopping for Trump-appointed judges they expected would be willing to do anything to please “Mr. Trump” – and they lost, over and over and over again, the judges all finding that there was no basis for the complaints and no evidence to prove them.  There was not, and still is not, evidence to prove that there was fraud committed in the 2020 general election for president that was significant enough to change the outcome.  Hence, no reason to rise up in rebellion.  Still, the crybaby con man refused to accede to reality, despite the efforts from family and friends and staff and lawyers and insightful bloggers that he man up and do the right thing: peacefully stand aside for his lawfully-elected successor as president, as American law and tradition have held for more than 225 years.

Trump encouraged supporters to organize a rally in Washington on the day Congress was to certify his defeat, where they could stage a demonstration that appealed to his overweening sense of himself, his unshakeable narcissistic belief in the grandeur of him!  After all, who else but Trump could engender such devotion from the suckers and losers he so detested, that these proud Americans would stage an armed assault on the seat of their own government on his behalf?

Again today there was an air of disbelief from committee members who told the part of the story about how Trump never made any effort to stop this attack on America – never called on any law enforcement assets or federal agencies to defend the Capitol, never issued a call to his supporters to straighten up and go home.  Are we surprised at that, really?  I’ve got a clear picture in mind of him glued to TV and patting himself on the back in the realization that this plan that was so crazy it just might work…was working!  Until it wasn’t, I guess…until enough supporters on the outside looking in, and enough members of Congress on the inside looking out and pleading for help, gained the critical mass to convince even the Great and Powerful Trump that the jig was up.  Even then he couldn’t make himself admit to being in error: he professed his love for these “special” Americans who were at that moment still committing treason and gleefully sharing the incriminating evidence of their crimes on social media.  Geniuses.

Any list of his questionable behavior since his return to private life – since his big boy pout of “snubbing” Joe Biden’s inauguration – is irrelevant to the possible criminal charges of inciting or assisting an insurrection, obstruction of an official proceeding of Congress, conspiracy to defraud the United States, and conspiracy to make a false statement that arise from the January 6 attack on the Capitol.  (Perhaps another time.)  I applaud the committee’s recognition that others in government played a role in Jan. 6 that should not be ignored: kudos for the Ethics Committee referrals against House Republican leader Kevin McCarthy and GOP members Jim Jordan, Scott Perry and Andy Biggs for (like Trump) refusing to comply with committee subpoenas.  You can’t just thumb your nose at a Congressional committee and expect there to be no consequences.

Of course this isn’t the first time we’ve had ample evidence of Trump’s…shall we say, wrongdoing; Congress made history when it twice impeached him for high crimes and misdemeanors.  Well, Democrats in Congress did that; the feckless Republicans succumbed to a partisan effort to protect their own – a president of their own party, and more crucially their own jobs and power from the electoral annihilation they expected they would suffer from their MAGA constituents.  The Republican leadership of the incoming Congress will be powerless to stop this disbanding select committee’s work or the publication of its findings.  It’s up to the Justice Department now to do something about protecting the integrity of our democracy from those who think the laws do not apply to them.

Walking the talk

For starters, they did ask—many times, starting before his term was even over, so don’t give me that “all they had to do was ask” bull.

The federal government tried and failed repeatedly for more than a year and a half to retrieve classified and sensitive documents from former President Donald J. Trump before resorting to a search of his Mar-a-Lago property this month, according to government documents and statements by Mr. Trump’s lawyers. (emphasis added)

The documents, including an unsealed, redacted version of an affidavit from the Justice Department requesting a warrant to conduct the search, make clear the lengths to which the National Archives and the department went before officials pursued a law enforcement action to recover the material.

The FBI knew that Trump had documents at his home in Florida that he was not supposed to have: he had already given them 15 boxes of official material in January of this year, and the FBI and the National Archives suspected there were more documents in Florida that should be returned to the government and that Trump was obstructing their efforts to retrieve them.  Why they thought that is undoubtedly in the redacted parts of the affidavit, parts we haven’t seen but which the federal magistrate judge did read and consider before approving the search warrant.

the affidavit states that the National Archives spent six months in the latter half of 2021 trying to get more documents. And then the FBI got involved. The Post…reported that all this year, Trump resisted handing much of anything over, to the point where his allies feared he was “essentially daring” the FBI to come after them.

Trump was also warned before he even left the White House that taking any official documents with him, let alone national secrets, was illegal under the Presidential Records Act. And even Trump’s attorneys agreed that the former president needed to give the documents back…

(snip)

Included in the paperwork with the affidavit was a formal notice that the redacted memorandum was being released. In it, the Justice Department writes that the redactions are necessary to protect “a broad range of civilian witnesses.”

“This language suggests that people inside Trump’s former administration, or at Mar-a-Lago, are providing information to the FBI,” [former federal prosecutor Barbara] McQuade said.

The redacted affidavit itself suggests that the investigation includes detailed monitoring of Mar-a-Lago to find out how many boxes of official material were still there and where they were being stored.

To be clear: the classified status of some of these documents is only part of the issue.  The laws make clear that no former president is permitted to take control of these types of records—”mere possession of these documents is a crime under some of the statutes cited in the affidavit, whether or not they are classified.”

Trump filed a legal motion this week, arguing that, as president, he had the right to declassify any classified documents and that his continued possession of the material was based on “executive privilege.” A judge should have no problem dismissing both arguments. First, while a president can declassify documents, there is a process for doing so; at the conclusion of the process, the special classified tabs and markings would be removed. Yet the tabs and markings are still on the documents retrieved from Mar-a-Lago. Second, mere possession, much less declassification, of some documents, such as those marked OCORN, must first be approved by the originating agency. That doesn’t seem to have been done either. Third, a president—certainly an ex-president—has no executive privilege to hold documents that properly belong to the National Archives.

If you think about it, Trump’s argument that he had declassified the classified documents…doesn’t help.

On top of which, the whole “I raised my magic hand and the documents were declassified” argument has a distinctly “what excuse do they have today” air about it.

These actions by the FBI and the Department of Justice are reassuring: federal law enforcement is walking the talk about no one being above the law.  And to those who’ve been clutching their pearls for almost three weeks now at the audacity of the government for having the nerve to search the home of a former president, I think the best and easiest response is to say, we’ve never had any reason to believe that any other former president had ever committed acts that would call for government action like this.  But this guy has.  And if you’re straining to keep up with all the other investigations involving the former guy, here’s some help.

Say the truth

It feels like it’s been going soooo slooooowly, but maybe we’re going to see some movement.  Chairman Bennie Thompson says the first public hearings on what the House January 6 committee has learned will be held in early June, and committee member Jamie Raskin is describing what they have learned this way: “This was a coup organized by the president (Donald Trump) against the vice-president (Mike Pence) and against the Congress in order to overturn the 2020 presidential election” and “We’re going to tell the whole story of everything that happened. There was a violent insurrection and an attempted coup and we were saved by Mike Pence’s refusal to go along with that plan.”

Wait, what?  Saved by Mike Pence?

To be fair, I can remember feeling sort of satisfied at the time that Pence had finally stood up to his boss (I think there was some mention of overcoming obsequiousness in there) and refused to take part in such a blatantly illegal plan—a coup.  But I hadn’t considered that maybe we all owe Pence more of a debt than we realized.  Earlier this week MSNBC’s Chris Hayes laid out this interpretation.

I’m eager to see the evidence.  I’m eager to get on with it!  Not to rush to judgment, mind you, but it’s been almost 16 months: the legislative branch and the Justice Department and the court system have got to nail the people responsible for this illegal power grab, and do it soon…or we may find those traitors may be back in power in Washington and in a position to protect themselves forever.  We’ve got to take action to punish those who deserve punishment, and stand up to the haters.

None of the mechanisms to deter a rogue president would work to restrain a reelected Trump.

On that note, I was invigorated last week to stumble across a speech by Michigan state senator Mallory McMorrow.  In retaliation for her support of LGBTQ issues, one of her “colleagues” embraced the popular new right-wing slur by accusing McMorrow of “grooming” children for sexual exploitation.  In a fundraising message.  No evidence provided, of course.  But McMorrow didn’t just take it, or shrug it off; in less than five minutes she sent a positive message that hits the haters right between the eyes.

“Hate will only win if people like me stand by and let it happen.”

I want to take a lesson from Mallory McMorrow, and not to afraid to call them like I see them.  We need to make it OK again to say the truth that we see.  It’s how we can defeat the haters.

Democrats Ask if They Should Hit Back Harder Against the G.O.P.