Donald Trump, Clarence Thomas, and the First Amendment

Donald Trump, as is well known, has been itching to open up the libel laws for a long time. As reported in the Boston Globe, Trump famously said this while campaigning for President:

I’m going to open up our libel laws so when [the New York Times or Washington Post] write purposely negative and horrible and false articles, we can sue them and win lots of money.

Trump gets reanimated about this issue every time Alec Baldwin does an impression of him on SNL, and threatens to sue the network as well.

And this from a man who repeatedly pretended to be his own spokesperson so that he could brag about himself to the gossip columns in New York and has told so many lies as President the fact checkers literally cannot keep up.

Whatever.

Well, recently Justice Clarence Thomas weighed in on the issue as well.[1] He said in a recent case that it might be time to revisit New York Times v. Sullivan, 376 U.S. 254 (1964), the landmark case protecting the press from most libel cases.

New York Times v. Sullivan

The NYT came out of the civil rights era and an effort to defend Martin Luther King (you may have heard of him). In brief, a group called Heed their Rising Voices published an advertisement (not even an article) in the Times with the intention of raising funds for MLK’s legal defense (after he had been arrested in Alabama again). In describing the actions taken by authorities in Alabama the ad made several factual errors (such as claiming MLK had been arrested seven times when he had only been arrest four times). Although L. B. Sullivan, the Montgomery Public Safety Commissioner was not named in the advertisement, Sullivan argued that the inaccurate criticism was defamatory to him as well because it was his duty to supervise the police department.

When the libel case came up to the Supreme Court four years later, the court created the “actual malice” standard, which requires that a plaintiff alleging libel or defamation who is a public figure must be able to prove that the publisher knew that the statement was false or acted in “reckless disregard of its truth or falsity.”

What this does is to protect newspapers and other publishers from simple reporting errors (like how often somebody was arrested) unless they knew it was a lie (or didn’t do any due diligence). This is the standard that President Drumpf and Justice Sexual Harasser object to.

Politicians can legally lie on the Campaign Trail

It is somewhat ironic, therefore, that there have been cases decided recently which essentially sanction politicans’ lying on the campaign trail. For example, the Supreme Judicial Court in Massachusetts struck down a statute which prohibited a candidate from knowingly lying about the record of another candidate.[2]

But Massachusetts isn’t the only state. Ohio has a similar law that does not allow lying during elections, as well as 15 other states, and whether any of those statutes can be enforced is in question. The reason for that ambiguity has to do with a Supreme Court ruling called Susan B. Anthony List et al. V. Driehaus et al., 573 U.S. _ (2014).

The case is mostly procedural (which makes it complicated for the layperson); while not deciding the issue on the merits, the Supreme Court sent it back down, where a lower federal court decided that the Ohio statute violated the law.[3]

The bottom line is this: there is no statute that prohibits lying on the campaign trail that, when challenged, has been upheld as constitutional. Political candidates, PACs and their surrogates at this point pretty much have carte blanch to lie about their opponents.

Can sitting Presidents lie without consequences?

If candidates can lie about their opponents on the campaign trail, can sitting Presidents (or other elected office holders) just lie about anything without any consequences? That is to say, without any legal consequences (as opposed to political consequences)?

Well, first of all, lying isn’t illegal (Thank God!) or face it, we’d all be in jail. But we’re talking the President — which should theoretically raise the bar and now lower it — and also the many lies he’s told about his political opponents.

At the moment, none of that has any consequences for the Donald. But be careful what you wish for Liar-in-Chief, because if we hold the press to a higher standard, we may have to hold you and your fellow office holders to a higher standard as well.


[1] Technically this was dicta in a concurring opinion agreeing that the court had correctly turned down an appeal from Kathrine McKee (who has accused Bill Cosby of sexual assault) after she sued Cosby for libel based on what his lawyer had said about her.

[2] Although to be fair, that statue included criminal penalties, which is what the Justices of the SJC found particularly objectionable.

[3] Unlike a Supreme Court holding, that decision is not necessarily binding on other federal courts, but it is important.

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Trump & Kim Jung Un II not likely to bring anything more than Trump & Kim Jung Un I

Back in June of 2018 President Moron-in-Chief met with North Korean dictator Kim Jong Un in Singapore. Republicans were swooning at the time, and suggested that maybe President Moron-in-Chief should be eligible for the Nobel Prize.

I wrote at the time that if Trump could formally get the United States and North Korea to make peace [1] and could get North Korea to denuclearize, maybe he should be eligible for the Nobel.[2]

Of course, Trump, the great conman got conned by an even better conman. Kim promised a lot of things, but nothing fundamental has changed. As all the experts predicted.

In the meantime, Trump went off the deep end by declaring at a rally in September that he and Kim had “fallen in love” because of the “beautiful letters” that Kim had written him. (I mean seriously, if someone like Obama had ever said that, the Republicans would have had a collective apoplexy.)

Then, news came out last February that the White House had asked Japanese Prime Minister Shinto Abe to nominate him for the Nobel. Abe may have done so, but when asked to confirm by the Japanese parliament Abe refused, hiding behind the Nobel Committee policy of not disclosing who has been nominated until 50 years after the fact.

Then, news came out last week from the Nobel Committee itself that on two occasions — once this year and once last year — someone had forged an application on Trump’s behalf with the Nobel Committee.

What is this obsession on the part of Trump with the Nobel?

Obama has one.

I have argued before that Obama didn’t really deserve his Nobel and mostly received it for “being President while black.” But Trump is so obviously seething with envy. He hates everything Obama (and other have argued because Obama is everything that Trump will never be).

Here are three things you can bet on:

  • Trump will never receive a Nobel.
  • Regardless of what happens in Vietnam, Trump will claim victory.
  • Kim Jong Um will not give up his nuclear weapons.

Other than that, Trump’s latest tryst with Kim Jong Un is just a charade. But it makes for some good visuals.


[1] Remarkably enough, even though the Korean war ended in 1953 – so about 66 years ago – the United State and North Korea have never formally made peace.

[2] North Korea has a very different idea of what “denuclearization” means. The Americans think that it means that North Korea should denuclearize unilaterally. North Korea thinks that it means that the entire peninsula should be cleansed of nuclear weapons.

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The feeble efforts of the Republicans to discredit Michael Cohen

The White House and the apologists for the Donald Trump are going after Michael Cohen’s credibility in the same manner that criminal defense attorneys go after the associates of mobsters who have cut a deal.

Cohen has, of course, admitted to and been convicted of lying to Congress. And he has filed false tax returns and engaged in other actions that would ordinarily put his veracity in question.

But what is true for mobsters is also true for Michael Cohen: when they testify against former associates after have struck a “deal,” it is always contingent on their telling the truth.

Let me repeat that: this testimony is contingent on their telling the truth.

Let me repeat that: this testimony is contingent on their telling the truth.

What that means for Michael Cohen (as for testifying mobsters) is that if they don’t tell the truth, then their deal goes south.

Also, for some who have led a life of crime, there is a certain release in being able to confess their crimes.

Watching Michael Cohen, he has the slightly exaggerated precision of an attorney (or former attorney) who is doing his best to be hyper-correct, so that no one will (in fact) catch him in a lie for his testimony today.

The Republicans on the Intelligence Committee have been haranguing the Democrats for “not bringing an honest witness.” Well, if the Democrats were restricted to bringing honest witnesses who were former associates of Donald Trump, they would not be able to bring any witnesses at all.

Mic drop.

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The duckboats are barely back in drydock and Bob Kraft has a problem

The duckboats are barely back in drydock and Bob Kraft has a problem. On Feb. 22, 2019, the police chief in Jupiter Florida announced that Kraft, owner of the New England Patriots, would be facing a solicitation of prostitution charge.

Oops.

I’m a Boston-area guy, and while I’m no football fanatic by any stretch, I do like the Patriots. Mostly because of their “do your job” tradition of sustained excellence.

The Trump Connection

Now, the “big three” of Patriots nation — Kraft, coach Bill Belichick, and quarterback Tom Brady — have all been identified in the past as supporters of Donald Trump (who, readers of the blog should know, I absolutely revile). Brady was seen early on with a MAGA hat in his locker, Belichick wrote him a supportive letter that Trump read at a rally in New Hampshire, and Kraft has been open about his support.

Brady and Belichick have been trying to distance themselves from the political ever since. Brady mostly explained that he had done some golfing with Trump long before he ran for President, and the ever loquacious Belichick has pretty much said nothing since.

Kraft, by contrast, has given the most reasonable explanation, which is that Trump was very supportive of him when his beloved wife Myra died. Called him every day to check in for a while. (They knew each other from Trump’s involvement and efforts to buy an NFL team.)

Bob and Myra and Ricki

Now Kraft and his wife Myra, who died of ovarian cancer in 2011, apparently had a very lovely 48 year marriage. There were never any issues of infidelity, and most observers thought they were very supportive of each other. Together they ran the Myra Kraft Charitable Foundation, which “supports organizations involved with arts and culture, higher education, health, youth development, and Judaism.” They gave out a lot of money here in New England.

Then, untethered from his lifelong anchor, Kraft — like many a billionaire businessman — got himself a young and skinny girlfriend. Ricki Noel Lander, who is 39 years younger. Lander recently got pregnant but it was reported that Kraft was not the father.

Whatever.

And now this.

Something Completely Different

So first of all, let’s acknowledge that Kraft has just been charged (for what is technically a misdemeanor) and is nowhere close to have been convicted of anything. As we saw in the discussion of Jussie Smollett, false accusation do happen. But not very often.

It looks bad for Kraft.

According to a report by the Boston Globe,

Twice between Jan. 18 and Jan. 22, Kraft allegedly visited a run-of-the-mill massage parlor called the Orchids of Asia Day Spa in a seaside town of Jupiter, about 20 miles north of the Breakers in Palm Beach. On both visits, the 77-year-old billionaire allegedly solicited prostitution from female workers exploited by Chinese traffickers

So now we’ve gone from loving husband and father to Chinese child sexual traffickers and “happy endings.”

In a subsequent article the Globe reported that this was part of an investigation into a human trafficking ring that brought Chinese girls to the USA under false pretenses, where some of them ended up sleeping on the massage tables in the massage parlors and “having unprotected sex with up to 1,000 men a year.”

Kraft wasn’t the only 77 year old billionaire from Massachusetts who was ensnared. Remarkably enough a much lower profile guy — John Childs, the founder of J.W. Childs Associates — was another one of the Johns who was caught up. (On Monday he resigned from the company that he founded.)

What is it with becoming a billionaire? Not every one of them goes off the rails of course, but too many of them start to think that they can do whatever the fuck they want. (And in certain ways they can.)

The silver lining in all of this for the rest of us is that Kraft’s celebrity may really shine a light on this problem. Just as Harvey Weinstein’s behavior really shown a light on sexual harassment, this could do a lot for beginning to combat sexual slavery in a much more systematic way.

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Jussie Smollett and Christopher Paul Hasson compared

I realize I’m not breaking really new ground here, but it really is interesting to compare the reaction to Jussie Smollett and Christopher Paul Hasson.

Jussie Smollett

Smollett is, of course, the “Empire” actor who staged the fake attack on him that resulted in considerable outrage. Smollett told police that he was attacked outside his apartment building by two men in ski masks who called him racial and homophobic slurs, said “This is MAGA country,” and put a noose around his neck. Pretty inflammatory stuff. Turns out that Smollett had hired two brothers of Nigerian descent, who have acted as extras on Empire, and paid them by check.

Oops.

It’s very rare that somebody files false accusations in a case like this, but it does happen. Other famous false accusations include:

Making these kind of false claims is especially pernicious because it then casts doubt on the credibility of future cases and future victims.

But mostly it proves how stupid Smollett is. In this day and age, with the sophisticated forensic capabilities that law enforcement has — and they are inclined to be especially diligent in an emotionally charged high-profile case like this — there was almost no chance that Smollett would get away with this.

Christopher Paul Hasson

Hasson is an entirely different matter. This guy — a former Marine and active member of the Coast Guard who identified openly as a white nationalist — planned on assassinating 23 specific politicians, media figures, and left-wing activists, planned on using biological weapons in other attacks, and professed his desire to “to murder innocent civilians on a scale rarely seen.”

Ever since Stephen Paddock , you know there will always be someone looking to “raise the bar.”

Presidential Reaction

President Trump, being the calm even-handed personality that he is, fired up a tweetstorm about Jussie Smollett. He wasn’t wrong about everything he wrote, but still. And Christopher Paul Hasson? There was only silence.

Trump and his supporters wonder why all of the rest of us accuse them of racism. Use this as example #1.

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Bernie Sanders’ ego-trip decision to run for President again

Bernie Sanders announced this week that he is running for President again in 2020.

Good grief!

I was a Bernie supporter in 2016 (although to be fair, I supported both Bernie and Hillary). But in the Massachusetts primary I voted for Bernie because, as I explained at the time, I couldn’t resist the temptation to “vote for a septuagenarian socialist Jew for President.”

Bernie did something very important in 2016, and that is that he changed the conversation. He made ideas like Medicare-for-all not only acceptable, but actually attractive to the Democratic mainstream.

But this time around it’s just an ego-trip, and he’s not getting my vote. The left wing of the party is already capably represented by Elizabeth Warren (and maybe Kamala Harris). And this time around Bernie will practically be an octogenarian socialist Jew.

Sorry Bernie, the first time was great. This time you’re succumbing to your own celebrity, and it’s just going to be one long ego trip. Like Muhammad Ali before you, you don’t know when to quit.

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What El Chapo proves about a border wall

As we know, last Friday Trump declared his fake “state of emergency” with respect to the southern border so he can get his wall funded. In a rambling press conference Trump mostly lied and dissembled, keeping the fact checkers busy (as usual), contradicting himself and the need for an emergency declaration on several occasions. He cited drug smuggling as one of the major reasons that he needed to build the wall.

Now here’s what I love about this: pretty much everyone (including his own Drug Enforcement Administration) agrees that the Mexican cartels transport the bulk of their drugs over the Southwest Border through “ports of entry” using passenger vehicles or tractor trailers. In other words, not at places where a wall would make any difference. But even if it did, we’re talking Mexican drug cartels here.

They are endlessly inventive.

I mean, we’re talking about the people who twice got their #1 guy, Joaquín “El Chapo” Guzmán to ecape from Mexican jails.

  • First, in 2001 he escaped from a jail in a laundry cart, with generous help from jail officials who had been bribed.
  • Second, in 2015 he escaped from the maximum security Federal Social Readaptation Center No. 1 when members of his cartel built a 1.5 km tunnel under the prison into which Guzman was able to jump from the toilet area of his prison cell.

Do you know what kind of engineering skills it takes to build a tunnel that accurately without anyone noticing that you’re doing it?

And these are the people that Donald Trump thinks he can stop with a simple wall.

Good grief, El Donaldo!

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