Wednesday, January 10, 2018

Michael Cohen, Trump's personal attorney, files lawsuits against Fusion GPS, BuzzFeed over infamous 'dossier'

Michael Cohen, Trump's personal attorney, files lawsuits against Fusion GPS, BuzzFeed over infamous 'dossier'

It's difficult to see where his suit has any merit:

Against Fusion, he claims they "“recklessly placed [the dossier] beyond their control and allowed it to fall into the hands of media devoted to breaking news on the hottest subject of the day: the Trump candidacy.”

Well, yeah, of course they let it get out of their control. First of all, they could not control the outside consultant who researched and wrote the dossier (Steele). Then, they had to give it to their client, who paid for it. There was nothing they could do to stop the client or Steele. There is no evidence that Fusion leaked the documents. Steele himself leaked his findings both to the FBI and Mother Jones magazine.

Now if the lawsuit was against Steele or his company (Orbis), it would make sense, but there's really no reason to think Fusion did anything wrong or created any of the leaks that caused the dossier to become public.


Against BuzzFeed: (1) The dossier was obviously newsworthy, and BuzzFeed is a news organization (sort of), so they reported it; (2) BuzzFeed made no claim that the document was accurate, and in fact stated that "It is not just unconfirmed: It includes some clear errors."

10 comments:

  1. You're taking this way too seriously. It's a TRUMP lawsuit, it's not going to court. It's the rich-boy equivalent of "I'm going to hold my breath until you buy me another pony, Daddy".

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    1. I don't think Trump is behind it. (Yeah, his are all bullshit, and he's obviously not going to testify under oath to win the suit.) This is Cohen who says his reputation was damaged by ridiculously inaccurate statements in the dossier, and seems to be right about the inaccuracy. Unlike Trump, he probably has the time, desire and money to pursue the suit.

      I think he's going to have a hard time proving damage, unless he can prove that people believed the claim, and that he suffered as a result. Even if he can prove that, he still has the hurdle of malice. But ... maybe.

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  2. Absolutely right about Fusion. There are consequences if you publish something but you have no liability if someone else leaks it.

    But have to disagree about Buzzfeed. 'Newsworthiness' is not a defense to libel. But usually you avoid liability because the person you've defamed is a public figure (or else they wouldn't be in the news). Unless you knew you were publishing something false about the plaintiff or, to quote the Supreme Court, you "acted with reckless disregard as to whether or not the defamatory matter published was true or false". Oops. Those quotes from Buzzfeed are going to make it hard for them to claim the public figure defense. Without it, the case is simple: 1. did you publish something defamatory about Trump? 2. was it false? If 'yes' is the answer to both questions, it's case closed.

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    1. For the standard of libel it must be both defamatory and malicious. Kinda hard to claim malice when they said it was bullshit when they published it. They never claimed it was true - just that it existed.

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    2. Not saying that Cohen's lawsuit has merit, but I imagine there must be some limit to the "we think this is bullshit but here it is" defense. Otherwise, you could publish anything with a weak, cynical disclaimer.

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    3. I would argue that you can do just that. If there is a document being circulated in Washington, seen by everyone in power, that Al Gore fucks kangaroos, I see absolutely no problem in publishing the document which was responsible for the rumor, as long as you present it as a news story saying (1) this is the source of the controversy and (2) to the best of our knowledge there is no reason to believe that Al Gore is a kangaroo-fucker.

      The only limitation I would see is if the publisher pulled a Hunter Thompson and actually started the rumor in the first place with a phony document, then reported "there is a document that ..."

      (Remember Ed Muskie and his Ibogaine addiction? A Hunter Thompson classic! “I never said he was taking Ibogaine. I said there was a rumor in Milwaukee that he was, which was true when I started the rumor in Milwaukee.”)

      But in this case, BuzzFeed presented something to the public that was already known and was obviously newsworthy.

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  3. ps .. and Buzzfeed's liability isn't affected by whether they're a news organization or not. The press has no greater freedom to libel people than anyone else.

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  5. No, the whole "malicious" element of a libel suit is a red herring. It is not used in the normal sense of English as we know it, but it is a term of art, called "actual malice", invented by the Supreme Court in the Sullivan v. NYTimes case. It means this, and only this: the defendant published something "either with knowledge that it was false or with reckless disregard as to whether it was true or false." So adding the element in the hypothetical that you don't know whether something is true or not isn't helpful; it makes it worse for the publisher. It makes you sound reckless as to whether the defamatory thing you've published is true or not. And that is exactly what the Supreme Court defines as acting 'maliciously'. It's not about possessing a malicious frame of mind in any way; it's meant to keep people from being casual or reckless with throwing around defamatory statements. (See wikipedia entry on 'actual malice' if you don't believe me). Also, it doesn't matter in the slightest whether it is a news story or not. Nor is the fact that something is already known relevant at all: republishing a defamation is equally culpable as first publishing it and incurs new damages each time you do it.

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    1. So you are saying that the truth is not a defense for libel?

      If Joe Blow tells me, whether I work for the press or not, that Trump hired hookers to pee on a bed in Russia, I am allowed to say "Joe Blow told me Trump hired somebody to pee on a bed in Russia." That is (1) news, and (2) is 100% true, which is kind of the ultimate defense for libel.

      What I am NOT allowed to say is "Trump hired somebody to pee on a bed in Russia."

      BuzzFeed did the former, not the latter, they said "this is the document," which it was. Can you find anything in BuzzFeed's presentation of the story that is not 100% true? They said what the story was, they said who was responsible for it, and they released it.

      They even went a step further and said it was known to contain errors, although they had no obligation to do so.

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