TRUTH OR CONSEQUENCES AND THE "BIG LIE"

The question of whether social media organizations like Twitter and Facebook should have immunity from liability for injurious falsehoods published on their sites is informed by Dominion's libel suit just filed against Rudy Giuliani. The distinctive complaint is titled "The Big Lie," and alleges details of the libels uttered by Giuliani as part of the "Big Lie" that Trump, not Biden, won the election.

In promoting the "Big Lie," it appears that Twitter was Giuliani's publisher of choice, though he also used YouTube, Fox News, Lou Dobbs, and others. Yet under existing law, Twitter was not legally responsible for any of the lies, no matter how obvious they were, and no matter how injurious they were to individuals and to private companies. On the other hand, Fox News and Dobbs are not in the clear, and Dominion's lawyers have put them on notice that they may be the next ones in the barrel.

Why is Fox News potentially responsible for hosting obviously false statements by Giuliani, and Twitter is not? There is no good answer to that question beyond Section 230 of the Communications Act. The distinction is unjust and should be eliminated. The New York Times, the Washington Post, CNN, Fox are all responsible for malicious lies they publish. There is no reason for Facebook, Twitter, and YouTube to escape the same responsibility.

(Ironically, former President Trump demanded the distinction be eliminated by the repeal of Section 230. He apparently didn't figure out that doing so would likely lead to Twitter, et al, banning his thousands of lies!)

All of this comes to mind when one reads the extraordinary libel suit for $1.5 billion dollars just filed against Rudy Giuliani, by Dominion, a maker of vote counting machines. Dominion had earlier sued Trump lawyer Sidney Powell, and in this suit only Rudy Giuliani. But plaintiff's lawyers have made it plain that they have others in their sights, including Fox News, Lou Dobbs, and others.

The complaint is more than 100 pages long. As someone who has prosecuted libel suits (and won a verdict that was, at the time, the highest ever confirmed libel award in a federal court),  l had to read this one, and I'm glad I did.

The gravamen of the complaint is that Giuliani, along with others, repeated a series of malicious lies about a company called Dominion, in an effort to overcome the vote count that elected Joe Biden. In particular, Giuliani and pals spread the tale that Dominion's vote-counting machines had an algorithm that was utilized to switch Trump votes to Biden votes. 

The Dominion-fraud-conspiracy libel was detailed, and Giuliani repeated it again and again, on any and every medium he could find, including Twitter, YouTube, and Fox News. Indeed, as evidence of his knowledge the Dominion-fraud claim was false, Giuliani never made the allegation in a court document, because he knew that making false statements to the court could result in immediate judicial sanction. Instead,  even after assuring courts that he was not alleging fraud, Giuliani would go outside the courthouse and say the opposite.

The Dominion complaint alleges that Giuliani repeatedly asserted:

i) He had definitive proof that Dominion was owned by a company called Smartmatic, which was created in Venezuela by Hugo Chavez and two pals, who created the vote-switching machine to keep Chavez in power. After Chavez's demise, his two partners have continued to run the company. (In fact, Dominion has no connection to Smartmatic--the companies are competitors.  Dominion is an independent American corporation, and its machine was invented in Colorado to help the poorly sighted.)

ii) He had proof the Dominion machines had switched enough votes from Trump to give the election to Biden. He continued to publish that knowingly-false defamation even after learning that in jurisdictions where votes were hand counted, the hand count perfectly matched the machine count.

iii) His source is a person named Ramsland --a man who has publicly claimed that "George Soros helped form the deep state in Nazi Germany in the 30s," along with help from George H.W. Bush's father, the Muslim brotherhood, and "the leftists." (While the claim is internally nonsensical, it is to be noted that Giuliani relied on a source who has picked up the anti-Semitic "George Soros" trope, this time asserting some sort of time machine impossibility given that Soros, born in 1930, was an unlikely powerful political figure "in the 30's".)

(And it was Ramsland who submitted "proof" of voter fraud in Michigan, using voter statistics from Minnesota.)

The pleading recites dozens of repetitions by Giuliani of the mythical Dominion-fraud-conspiracy even after he became aware of facts demonstrating his statements were manifestly false.

In fact, Giuliani used the Dominion-fraud-conspiracy libel to egg on the insurrectionists that attacked the Capital on June 6.

The result, alleges Dominion, was financially and emotionally catastrophic. The company has spent millions on enhanced security after receiving threats that its building would be blown up. And its employees have received threats they would be murdered.

The demand for 1.5 billion in damages is half for compensatory damages, and half for punitive damages.

Giuliani's public response has been two-fold: he a) says he is happy to be able to get a look at the Dominion's records in discovery and may countersue (for what, he did not say) and b) he whines that suing him was an effort to "intimidate the lawyer," a tactic with which his client is familiar. (See footnote.)

Once upon a time, my client sent me to Greece to negotiate away a criminal indictment resulting from a negative restaurant review. Seriously. Libel was then a criminal offense in Greece. (Not sure about today!) I was successful. I remember thinking that criminal sanction for defamation was uncivilized. ' 

"Uncivilized"? Dominion v Giuliani certainly provides food for thought, non? 

A bientot.

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Dominion v Giuliani rings a lot of bells for me. First, the libel case won against CBS, 3 million dollars, cert denied by the Supremes. Second, in a clear effort of lawyer intimidation, Trump sued a small law firm representing tenants in a Trump-owned building he wanted to demolish. We not only had Trump's complaint dismissed, we made him pay our legal fees.

 Read all about both, plus a lot more, in my memoir, "The Client Decides," available on Amazon and Kindle.

 

TWITTER SAVES TWITTER BY TRUMPING TRUMP

Let's start with a hypothetical :

Three guys rob a federal bank.  A and B sit in the car outside the bank while C goes inside and loiters. When A decides the coast is clear outside the bank, he sends B into the bank to inform C that "Now is the time to rob the bank. Hurry. A is waiting at the curb with the getaway car." C then threatens a teller with his pistol, gets the cash, then B and C run to the curb, get into A's car, and they drive away . 

You don't have to go to law school to know that all three knuckleheads are guilty of bank robbery. And if, in the course of the hold-up, C shoots and kills the teller, then all three knuckleheads are guilty of murder.

Now let's tweak the hypothetical. We'll get rid of B.  We do not need a human messenger. Instead, A, sitting in the car outside the bank, sends a tweet to C that reads "Now is the time to rob the bank. Hurry. I'm waiting at the curb with the getaway car." Twitter's algorithm catches the tweet, a twitter monitor sees it and ignores it.

OK, students, answer the following question correctly and you win a JD degree from the Sidney Powell Law School:

Question: In hypothetical number two, is Twitter criminally responsible for the bank robbery, or in the event, felony-murder? Explain.

If you answered “No," don't bother to explain, you have failed the test. (But you can get a degree from the Sidney Powell Law school anyway. Just send them a postcard.)

But, you say, what about section 230 of the Communications Act which immunizes Twitter and other "interactive computer services" from being treated as the publisher of messages on their services? Doesn't that protect Twitter, Facebook, and other social media channels from liability on account of all messages posted by their members?

NO.

Sure, they get away with publishing libel and slander, and abuses of state privacy laws, etc., (an immunity that, IMHO they do not now, if they ever did, deserve) but the statute excludes immunity from federal laws involving obscenity, sexual exploitation of children, "or any other Federal criminal statute."

Therefore, Twitter, Facebook et. al. could possibly be held criminally liable if they published information that is an element of a conspiracy to effect seditious invasion of the Capitol.

Of course, you have already read about this section 230 non-immunity issue in the press, right? What, you didn't see it? Yeah, me neither.

Is what the President said, (or did not say) before, during, and after the insurrection, on broadcast television and Twitter, an element of a criminal conspiracy to commit sedition? I think it is. Congress thinks it is. Now it's up to the Senate to say what they think, or at least vote yes or no on the question, whatever they really think.

But even aside from the legal question, did Twitter have a moral obligation to cut off its participation in what looked to be an appeal to violent insurrection? Only Republicans who worry about their personal election prospects could answer that question "No."

Finally, what about the First Amendment Issues. We already see objections by the ACLU, and a cohort of academicians wrapping themselves in the flag of the First Amendment, decrying the Twitter decision to ban Trump from its service.

I have before railed, (here and in a NYTimes op-ed), about First Amendment Fundamentalists, who know, but choose to ignore, that the Amendment has nothing whatever to do with the Twitter question. The Amendment relates only to things that "Congress" (i.e. the government) can and cannot do with respect to speech. Every individual has a right to decide whether and what to publish or not publish--and live with the consequences.

Were Trump's remarks, taken in context, "directed to inciting imminent lawless action and likely to incite or produce such action?" I think “yes,” others may disagree, but right now the Senate may find the answer to that question helpful in reaching its verdict. And, one hopes, possibly a petit jury after that.

A bientot.

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"NOTHING TO SEE HERE, FOLKS"

"We must say enough — enough! He has betrayed our national security, and he will do so again." 

"He has compromised our elections, and he will do so again. You will not change him. You cannot constrain him. He is who he is. Truth matters little to him. What's right matters even less, and decency matters not at all."

"Can we be confident that he will not continue to try to cheat in [this] very election? Can we be confident that Americans ... will get to decide?...The short, plain, sad, incontestable answer is no, you can't. You can't trust this president to do the right thing. Not for one minute, not for one election, not for the sake of our country. You just can't. He will not change and you know it."

"What are the odds if left in office that he will continue trying to cheat? I will tell you: 100 percent. A man without character or ethical compass will never find his way."

Representative Adam Schiff,  (Dem., CA), February 3, 2020. Speech to Senate in first impeachment trial of President Donald Trump.

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"Nor does the record support the assertion by the House Impeachment Managers that the President must not remain in office one moment longer."

Senator Susan Collins, (Rep.,  ME, ) Februay, 9, 2020. Statement of one of several reasons for voting "Not Guilty" in impeachment trial of President Donald Trump.

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"My personal view is that the president touched a hot stove on Wednesday and is unlikely to touch it again."

Senator Roy Blount (R. MO), January 10, 2021. Statement of reason for opposing second impeachment of President Donald Trump.

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SUPREME QUESTIONS

 

 

Article I, Section 2:

 

The House of Representatives ...  shall have the sole power of impeachment."

Article II, section 3:

"The Senate shall have the sole power to try all impeachments. ... When the President of the United States is tried, the Chief Justice shall preside ... .

 

Question 1.

 

Does the power to impeach a President terminate when his term of office expires? The answer seems simple, but it is not. The Constitution does not specifically bar impeachment subsequent to the termination of incumbency. No court has ever ruled on the question but there is Congressional precedent. In 1876, one William Belknap was Secretary of War under President Ulysses S Grant. Belknap was accused of taking bribes, and the House commenced an impeachment inquiry. Belknap resigned before the House proceedings were concluded, but the House impeached him anyway. The matter then went to the Senate, which tried Belknap. A majority of the Senate voted to convict, but he was acquitted for lack of a 2/3 super-majority.

 

Now the House of Representatives threatens to impeach Trump for incitement of sedition and rebellion. They can certainly accomplish that between now and January 20. But can the Senate take the matter up when it receives the House's Bill of Impeachment? Because of the Senate's internal resolutions, it may not be able to receive the Bill of Impeachment until January 19. Will the new Georgia Democratic senators be sworn in by then? Will McConnell still be the majority leader? Presumably, Pence could still break a tie if the Senate is split 50-50, but McConnell may no longer have control of his caucus. Even if there are still only 48 Democratic Senators, at least three Republican Senators have given strong indications they might vote to convict Trump, or at least proceed with a trial.

 

All of the foregoing suggests that if the House impeaches Trump before January 20, a trial in the Senate would likely occur subsequent to the end of the Trump presidency. The Constitution provides that "when  the President of the United States is tried, the Chief Justice shall preside."  What if Schumer notifies Roberts of the forthcoming Senate trial, and Roberts refuses to preside? Can he unilaterally rule against the Constitutionality of a post-incumbency impeachment trial by his refusal to preside?

And if Roberts does preside, what would the Court do if Trump challenged the proceedings? Would it violate its oft-cited rule about respecting the autonomy of the other political branches of government? Would it address the merits? Would it defer until after the Senate vote (assuming an acquittal) on the ground of "no harm, no foul?"

If Trump were to be convicted by a 2/3 vote, experts have opined it would take only a simple majority vote to bar him from ever again holding federal office. What would the Court do then?

 

 

Question 2.

 

Article II, Section 2:  

 

"The President ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." 

 

If there were ever any doubt that Trump will attempt to pardon himself, there can be none now. He is clearly guilty of incitement. He is clearly guilty of conspiracy to encourage sedition. He may even be guilty of felony-murder.

 

Does the President have power to pardon himself? Academicians are divided. Prevalent is the view adopted by the Supreme Court in Nixon: "No man is above the law," which would lead to the decision that a President could not pardon himself. But a "textualist" judge might well come to the opposite conclusion.

 

What will the "Trump Court" say?

 

While question number one is remote,  this one is not.

 

Question 3.

 

And would Justice Thomas recuse himself, given his wife's endorsement of the march on the Capitol to demand Congress overturn the election? (Two days later she amended her post by noting she sent her "love" to the demonstrators before the violence occurred.)

 

A bientot.

 

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Rebellion

I was approaching my eighth birthday when the Japanese bombed Pearl Harbor and Hitler soon thereafter declared war on the United States of America. Even at that age I was a voracious reader of the daily news. I followed every battle,- - the ones we lost in the Pacific in 1942, the Bataan death march, I despaired of the grievous losses in the battle of the bulge and the Normandy landings, but I never, never, not for one moment, feared that we would lose that war. I never, never

 feared that we would lose our beloved democracy.

80 years later, I find myself a retired lawyer blogging about politics and the law. At no time since I started doing this was I ever despondent. Not all the candidates I favored won. In fact, I think I "lost" as many presidential elections as I "won." But I never despaired about the survival of our democracy.

When Trump won in 2016, I remained positive. I assured everyone within the reach of my words, that Trump would lose the 2020 election, his boasts about litigation would prove to be hot air, we would overcome the disgrace of William Barr, Mitch McConnell, Rudy Giuliani, and the rest of the Trump Crime Family. I believed that in the end, the country would survive with some bruises but basically in good order, and the Trump episode would, in time,  pass as an ugly wart on our historic democracy.

But last night, for the first time in my life, I went to bed concerned about our country's survival. I even wondered whether I would ever get back to the United States from our Caribbean vacation spot. 120 Republican Congresspersons simply peed on the constitution because their preferred candidate received 7 million fewer votes than his opponent? They sought to defeat and ignore the Constitution and court decisions protecting voters' choices? They sought to persuade Trump's sycophantic Vice President to participate in a coup d'état? For what, so they could be re-elected? Good grief!

But even then I held on tight to my optimism.There were enough Democrats and Republicans in the House and the Senate to defeat the corrupt effort. The winner of the election would be declared the winner of the election, and Biden and Harris would be sworn on January 20.

But then the picture grew black. At a "Save America" rally in the District of Columbia, Trump encouraged his armed supporters to "march on the Capitol" and "to fight." At the same rally, Rudy Giuliani call upon the crowd  to "Let's have trial by combat." 

And when the crowd followed that instruction, and Ivanka Trump supported the rioters by calling them "American patriots," and Donald Junior threatened the congressmen who didn't join in the coup attempt by warning. "if you're going to be a zero and not a hero we're coming for you and we're going to have a good time doing it," and the terrorists stormed the Capitol building, and actually broke into the House of Representatives and the Senate chamber, injuring 14 Capitol policeman and causing a melee that ended in the death of a Trump supporter, - - when that happened I turned off the television, and worried if I were going to have a country to go back to. Really.

When I woke up this morning, we still had a democracy. It was a close call, but the Trump fantasy was too much even for the likes of McConnell, Barr, et al,  though, in my view, they bear a great deal of blame for not putting a stop to the Trump madness months ago.

What happens now?

Title 18 United States Code section 2384 reads:

 "if two or more persons in any state or territory ... conspire to overthrow, put down, or destroy by force the government of the United States ... or by force...prevent, hinder, or delay the execution of the law of the United States, or by force seize, take, or possess any property of the United States, they shall be... imprisoned for not more than 20 years."

And section 2383 reads,

"Whoever sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be imprisoned for not more than 10 years and shall be incapable of holding any office under the United States."

The press reports some 43 people were arrested in the Capitol break-in.  Windows and furniture was smashed, capitol guards were injured, one invader shot and killed. Trump refused to call out the National Guard. Despite White House lies, it was Pence who did that. Order was restored, Congress resumed its work, and despite the continued efforts of some traitorous Republicans, at 3:49 a.m., Biden and Harris were officially declared the persons who will be sworn in on January 20.

But what of the not-yet arrested felons who participated in this seditious episode? What happens to those who were not arrested but gave assistance to those who were? What happens to those who gave "aid and comfort" to the criminals? What happens to Giuliani who insisted on choosing the next president via "trial by combat", or Ivanka who encouraged the armed mob by calling them "Patriots",  or  Donald Jr. who threatened congresspersons who refused to support the rebellion, with the message: "We're coming for you and we are going to have a good time doing it.", or the President who set the mob to march on the Capitol and refused to call them back after it appeared this was not a peaceful demonstration?

How many pardons will Trump rush to sign? Does he dare include  himself? Yes he does. Will it stick? Will his Supremes stand by him? So far they have not.  Will Pence invoke the 25th Amendment? No, he will not. Will Congress impeach? (Yes, there is precedent for impeachment after he leaves office.) Is this, at the very least, the end of the Trump 2024 campaign?

Lots of questions. More later. Maybe even some answers.Most important, I will go to sleep and wake up in a Democracy, however fragile. 

Night, Night.

A bientot.

N.B. MASSIVE COMPUTER PROBLEMS. SORRY FOR TYPOS.

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