Talkin’ Liberty is the segment of Liberty Nation Radio where Tim Donner and Scott D. Cosenza focus on a few of the week’s stories affecting our liberty that deserve a little more attention or may have been overlooked in part or whole. Here is the latest episode where we discuss the update in Michael Wolff’s book on Trump and his reaction to it, the likelihood of a successful defamation case, as well a potentially important 4th Amendment case.
Defamation, Libel, and Slander
Tim: We talked about the Michael Wolff book, Fire and Fury, and all the unsubstantiated claims, which he even admits in the book. He throws in all kinds of things which he admits in the prologue are untrue. This, of course, has been trumpeted out to tens of millions of Americans. Does President Trump have a legitimate case against Wolff for libel or defamation? Both? Neither? Explain.
Scott: No, and I don’t know that I really like that word that you used, legitimate. Does he have a case that’s going to be heard, with a reasonable chance of success in an American courtroom? I would say the answer to that question is no, and the reason why, Tim, is because in 1964, when the United States Supreme Court set for the modern standers for … we can use the word libel or slander. In modern legal jurisprudence, we call these things defamation. This is the private crime or tort of defamation.
When we examine a defamation claim, it has to be, three factors, it has to be a false claim, it has to have caused harm, and have been made without adequate research into the truthfulness of the statement. Now, that’s for a regular person. That’s to say, “Joe Smith is embezzling funds from where he works.”
Tim: Well, which of those things does this book not … Which of those standards –
Scott: I’m going to get to that.
Scott: So, that’s for Joe Smith, and his work at the widget company. Now, for public figures, there’s an entirely different standard, and that’s what was articulated in the Sullivan decision, for public figures, that you have to have actual malice. And I’ll read from the decision: “Proves that the statement was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
Now, there’s one other definitional point to consider here. There are some people who are public figures generally: Madonna, Donald Trump, Barack Obama; and then there are some people that are public figures for a limited purpose. A guy who does well in AAA ball, for instance, is a public figure for the farm team where he is, right? I’m a public figure for constitutional … talking about these things on the radio show, and the podcast, and writing about them. But who I date is not a public issue, like it is with Trump, who parades a bevy of women on red carpet events, for instance.
So, the question about whether or not this libel …
Tim: Hasn’t … Let me interrupt you for just a second.
Scott: Go ahead.
Tim: Hasn’t Michael Wolff demonstrated actual malice with the libelous, using the term broadly, things that he’s said about Trump on top of a book in which he admits that so much of what he writes is untrue, and he makes a statement that 100 percent of the people around Trump find him unfit to be President –
Scott: Well, exaggeration is not libelous, or defamation.
Tim: How do you prove actual malice?
Scott: You don’t, and that’s why he’s not going to be successful. I mean, here’s how you could prove it: If there was a guy sitting in a bar, and in the back of the bar Nancy Pelosi and Chuck Schumer are there, and saying, “Hey, here’s a great lie I can make up about Donald Trump, I bet you it’s really going to screw with his reelection campaign,” and the guy overhears it and then doesn’t report on the lie, that it was manufactured, but in other words reports on it like an actual news story, that, for instance, would be actual malice.
Now, Tim, I read the letter that Trump’s attorney sent to the Holt publisher, asking them to cease and desist, and I can tell you that that letter was junk, in the sense of … there’s a good quote by a guy, a former federal prosecutor called Ken White, who is a writer at Popehat, and he has a quote that I love. And he says, “Vagueness in defamation threats is a hallmark of meritless thuggery.”
Which is to say that … I allege that you have defamed me. What I need to do to you, Tim, is to say, “Tim, you are making this statement X, which asserts that I did Y. That is a lie, and you are defaming me. I demand that you stop it.” I can’t say, “Tim, on your radio show last week, you said all kinds of lies about me. I want you to pull it off the air right now.” No, no, no. That’s too general. What is the specific defamatory statement?
We don’t have that for Mr. Trump in this case. Again, it’s an 11-page letter. I slogged through it for the benefit of the show, and there is nothing there that points to an actual false statement that Wolff made. So, absent that specific –
Tim: Seriously? I mean …
Scott: Yes. I am serious.
Tim: I mean, so, he can say 100 percent, every single person around the President finds him unfit, can’t prove it, doesn’t have any quotes to show for it, but it’s perfectly fine for him to write what he wrote and have that broadcast to tens of millions of people across the country. Is this … I mean, is this fair?
Scott: Let me define my –
Tim: Is this fair?
Scott: In 1964, writing for the unanimous Supreme Court, Justice Brennan quoted a Kansas court, whose guidance they thought was instructive on the case. And it’s perhaps a little long, but I think it’s really good, and I would like to read it now to you.
Tim: Okay, good.
Scott: “It is of utmost consequence that the people should discuss the character and qualifications of candidate for their suffrages. The importance to the State and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional inquiry to the reputations of individuals must yield to the public welfare. Although at times, such injury may be great, the public benefit from publicity is so great, and the chance of inquiry to private characters so small, that such discussions must be privileged.”
So, that’s what the Supreme Court said unanimously in 1964. I don’t see any reason why the Supreme Court now would deviate from that standard. That is the current standard at law, and that’s why I believe, Tim, that this complaint will not be successful.
Tim: Well, he hasn’t even made the complaint yet, on defamation.
Tim: Or libel. It’s all a speculative thing. I’m saying, if it was me, I’d definitely sue for libel.
Scott: We do actually –
Tim: But I’m not a … Well, I’m a public figure, but not to the extent that Donald Trump is, which I guess sends a message that you can write anything about any public figure at any time, and you can pretty much get away with it. And we can analyze that at another time, but that’s an excellent analysis, even though I find it incredible, based on what we know about Michael Wolff’s book. But let’s talk about actual suits that are being filed by the President as a person, not as the President, correct?
Scott: Well, we have two suits that have been filed by the President’s attorney.
Tim: Is the attorney for the President, or for Donald Trump? In other words, is it a personal suit, or …
Scott: Right. So, Mr. Michael Cohen, who has represented the President of the United States, who has represented Donald Trump before he became President of the United States, he himself, Mr. Cohen was mentioned multiple times in the quote-unquote “Russian dossier.” He is now suing Buzzfeed, and he, being Mr. Cohen himself, is suing on behalf of himself for being defamed by Buzzfeed, and by Fusion GPS, commensurate with the public education of the Russian dossier.
The Russian dossier, and I read that again today, and it makes charges that Mr. Cohen is involved in some sort of cover-up, and has been since prior to the inauguration, regarding the Russiagate stuff. So, the question then becomes, is Mr. Cohen a public figure? I think that he can be. He will be regarded by the Court as a public figure. We can be voluntary public figures, and involuntary public figures.
So, for instance, I am a voluntary public figure when it comes to the discussion of constitutional legal issues. I put myself out there, I joined this program, and I discuss these things with you. But let’s say I was driving home tonight, and Donald Trump’s motorcade was driving to the Trump golf course in this area, and I got into a car accident with Donald Trump. Well, I would be an involuntary public figure, for the purpose of discussing that car accident. I didn’t wish to have it happen, or wish to engage in the accident, but I’m in it now, right? Just like if you’re Monica Lewinsky’s roommate. You may not have done anything, but you’re a part of the story, perhaps.
Anyway, so, Mr. Cohen may be … Even though he may say, “I’m not a voluntary public figure on this.” Because he was Mr. Trump’s attorney, he may be involuntarily looped in by the Court as a public figure, then, Tim, triggering that mountainously high actual malice standard. And I don’t approve of the Buzzfeed publication of that report, but I don’t think that it amounts to actual malice, based on my reading of the law.
But Upon Probable Cause
Tim: Okay, excellent summary. Let’s move to the Supreme Court. We’ve got a couple minutes left. Three cases in particular, two of them relating to the Fourth Amendment, including one Collins vs. Virginia. A motorcyclist on high-speed maneuvers. Take us from there.
Scott: Well, this, Tim, actually involves the search of that motorcycle when it was laid up against a house. A guy who was wanted by his local constabulary for repeatedly beating them in high-speed chases, they thought he had stolen the bike, and they were stalking him. They wanted to get him. When he ran away from them, he was wearing a helmet, so they couldn’t get an ID in order to arrest the person. So, they stalked who they suspected on social media, found a house where the person had been storing a motorcycle, went to the house, and saw up against the house, along a driveway, a motorcycle under a tarp or cover, leaning up against the house.
Now, what people like me, who believe that the Fourth Amendment should be robustly honored, believe that what the police should do in that instance is, apply to a judge for a search warrant, to enter the property, which they did not have permission to enter, or gain permission, either one, and also a warrant to inspect that motorcycle to see if it was in fact the stolen bike that they were looking for.
They didn’t do that. What they did was, they got out of their police cars, walked up, trespassed on the private property, lifted the tarp up, found the VIN number, ran it, found that it was, in fact, a stolen bike, and charged Mr. Collins with receiving stolen property. So, he says, “You’ve got to throw out this search, because it’s totally violative of the Fourth Amendment protection.” The police and the government say, “Well, because it’s a vehicle, it falls under the vehicle exception to the Fourth Amendment,” which was enacted into law in 1925, Tim, before police radios were even installed in police cars. You can imagine the different world we have now. A cop on the side of the road with a car, without even a radio.
So, I hope that the court sees the light, that this is not some sort of exception need be made for the Fourth Amendment. The police had plenty of time to go get a warrant, and that’s what they should have done here. Let’s hope the court agrees.