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Trump is being sued for defamation by one of the women he allegedly assaulted

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I’m not putting “allegedly” in scare quotes because I love the Rule of Law like that.

 

A former contestant on “The Apprentice” who previously accused Donald Trump of making unwelcome sexual advances toward her, kissing her on the lips and groping her in a Beverly Hills hotel filed a defamation lawsuit Tuesday against the president-elect over his denials of her allegations, CBS Los Angeles reported.

Summer Zervos announced the lawsuit at a Los Angeles news conference with her attorney, Gloria Allred, who represents multiple women who have made allegations of sexual misconduct by Mr. Trump. Mr. Trump has vehemently denied the allegations, and he specifically rebuffed Zervos’ accusations.

Zervos and Allred said they called on Mr. Trump in November in retract statements calling Zervos a “liar” and referring to her allegations as “fiction” and “fabrications.”

“I also called up on him to state that what I said about his behavior toward me was true,” Zervos said. “More than two months have gone by and he has not issued that retraction. I wanted to give Mr. Trump the opportunity to retract his false statements about me and the other women who came forward. Mr. Trump has not issued a retraction as I requested, he has therefore left me with no alternative other than to sue him in order to vindicate my reputation.”

“I want Mr. Trump to know that I will still be willing to dismiss my case against him immediately for no monetary compensation if he would simply retract his false and defamatory statements about me and acknowledge that I told the truth about him,” she added.

I wonder if there’s any relevant precedent regarding whether a sitting president can be sued for something he “allegedly” did unrelated to the performance of his office?

LOL/JK

Leaving aside the snark for a moment:

(1) Summer Zervos accuses Trump of groping her and kissing her without her consent.  That’s sexual assault.  Sexual assault is a crime which is very hard to prosecute for all sorts of reasons, one of the biggest being that the state has to meet a standard of proof of beyond a reasonable doubt.  Here, Zervos must merely prove that it’s more likely than not that Trump was lying when he claimed that Zervos was lying.

(2) This case is a reversal of the standard New York Times v. Sullivan situation, because it’s the public figure that’s being sued for defamation.  (I doubt that Zervos is even a limited purpose public figure in this context, and even if she is the Sullivan standard seems irrelevant, since Trump actually knows whether his claims about her statements about him are true or not).

(3) Using a million-watt megaphone to lie about having sexually assaulted somebody is, independent of the assault itself, a horrible act that should be punished ruthlessly by the legal system, especially since the criminal law so often fails to punish sexual assault itself.

I hope and trust that we see several more of these in the coming months.

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  • N__B

    I really hope Ms. Zervos has hard evidence because she’s going to be treated like shit by the press.

    ETA: I believe her completely. But I’m probably not representative of what’s going to happen in court and the media.

    • Paul Campos

      Her testimony regarding what happened is hard evidence in every legal sense. If the jury believes it’s more likely than not that Trump is the one that is lying about this, he has legally defamed her, and is liable for damages.

      • N__B

        You’re right; I phrased badly. I hope she has evidence other than her testimony. She’s going to be viciously attacked – probably for years, possibly for the rest of her life – but it will IMO be somewhat better if there’s third party verification. Given the Billy Bush tape, it may not be too much to hope for actual video or audio.

        • MacK

          She does not have to prove it to beyond a reasonable doubt – just to a preponderance of the evidence standard (more likely he groped he than not, and therefore more likely he was lying about it than not) – and the evidentiary rules are somewhat looser in a civil case.

          • N__B

            I’m talking about what happens outside the courtroom.

            • rm

              There is a subset of his followers who would viciously harass her via mail, phone, and social media no matter how solidly the facts were backed up with proof. I hope they stop there.

        • Crusty

          He confessed.

          • Scott Lemieux

            Right. It’s a “she said, he boasted about it” story.

            • erick

              Exactly, he’s on tape bragging about groping women then trying to argue that every woman who claims he groped them is lying.

              • David Allan Poe

                According to my local (female) Trump apologist (who claims not to have voted for him), he did not assault anybody because they were all ugly and have you SEEN his wife? And if anything did actually happen, it was because they wanted it.

                • Rob in CT

                  Which is, in part, why we cannot have nice things.

                • A woman on the radio just an hour ago, a Trump supporter who is also a newlywed, said she’s looking forward to standing next to her husband and giving Trump a hug.

                • Tristan

                  A woman on the radio just an hour ago, a Trump supporter who is also a newlywed, said she’s looking forward to standing next to her husband and giving Trump a hug.

                  Wow, so the ‘cuck’ thing is projection too?

                  Maybe society IS too sex-positive. Making an entire country unwitting party to your bedroom games is some next level shit.

                • JMP

                  I’ve seen from several people that “because he said ‘they let you do it’, that means it was all consensual”. Which falls squarely into the zone of saying that the victims must have wanted it because they didn’t fight back hard enough.

      • vic rattlehead

        This comes up all the time with red pill mouthbreathers (not talking about N_B).

        “There’s no evidence!”

        “Testimony is evidence, numbnuts.”

        “But but bah bah bah…”

        Just like-

        “You only have circumstantial evidence!”

        “People get convicted with circumstantial evidence all the time” (when the Scott Peterson case was big this was a great example).

      • legrand

        Seriously? Is this what it has come to? “I hope and trust that we see several more of these in the coming months.” Woman goes to Gloria Allred (Gloria Allred!) to make her initial complaint about this and we’re just going to buy it hook, line and sinker! All in line with The Russians Are Coming! The Russians are coming! John Podesta (that’s 99.5% of the people you hear in the background saying who tf is that?) uses Gmail with a password of “password” and gets hacked and we learn . . . yawn . . whatever – can anyone here tell me exactly what the “hacks” produced that swayed the election? Something a little more precise than another sermon by Rachel Maddow to us dumbasses that Russia stole the election? Because I haven’t heard how X led to Y. Which email was it that cause Joe Blow in Wisconsin to vote for Trump? Anyone even venture a guess??? I’ll grant that Comey’s idiocy wasn’t helpful, but he didn’t install the server in H’s manse. It wasn’t a “mistake” as she claimed repeatedly but as Trump noted with devastating impact in the debate, something that she did deliberately – that exchange did real damage to her in my humble opinion. Can’t we just face the fact that H was a truly awful candidate with a truly awful strategy surrounded by truly awful advisors and that is why she lost the election. Instead of focusing on Gloria’s stable of folks looking for another 15 minutes, can’t we focus on the real work ahead – like banishing the John Podestas and all the rest of the H crowd (Washington parasites I’m looking at you) from any future role in the Democratic party? How about let’s get something going like a real push for organized labor? Anything but the continuation of this conversation!

        • Rob in CT

          The media obsessed about EEeeeeeemaaaaails. Story after story after story. Lots of stupid/unengaged people picked up on that and decided Hillary Clinton was a crook (it fed right into Trump’s “Crooked Hillary” line), many of whom likely didn’t even understand the difference between the private server she used as SoS and the Podesta hack.

          Can’t we just face the fact that H was a truly awful candidate with a truly awful strategy surrounded by truly awful advisors and that is why she lost the election.

          No, because she was not those things. She was a so-so candidate with a so-so strategy surrounded by ok advisors. Mediocre, not awful. Great candidates are not easy to find, btw.

          In a rational world, this election should have been an epic blowout, but we do not live in a rational world in which voters carefully consider policy positions. In our world, huge numbers of people vote (or don’t!) based on fuzzy things like who you’d like to have a beer with (remember that one?) and “he speaks his mind” (referring to a man who lies like most people breathe).

          can’t we focus on the real work ahead – like banishing the John Podestas and all the rest of the H crowd (Washington parasites I’m looking at you) from any future role in the Democratic party?

          Purge them! Then we will be pure! Then, victory!

          How about let’s get something going like a real push for organized labor?

          Ok, what do you mean specifically?

    • MacK

      Here is an interesting issue – I know that Alred is a bit of a grandstander, but she has a pretty good basis to seek the outtakes from the Apprentice since, as it happens, Zervos’ connection was through the apprentice and therefore one could argue that there may be evidence there.

      • N__B

        Yeah – see my comment above posted simultaneously with yours.

      • so-in-so

        Odds on “oops, those tapes all got erased” being the answer?

        • MacK

          Oh, I suspect that a litigation hold letter or two was sent months ago. They’d be in serious trouble if they wiped them.

          • GeorgeBurnsWasRight

            Maybe Trump promised to pardon them?

            Worst position in the world: being dependent upon Trump fulfilling a promise he made.

            • Just_Dropping_By

              I’m 99% sure the president’s pardon power doesn’t extend to discovery sanctions in civil litigation….

          • Michael Masinter

            I’m not sure I understand why a litigation hold letter would impose an obligation on a nonparty witness to preserve evidence, assuming the nonparty is not an agent of a party. In most states, spoliation law and the associated obligation to preserve evidence attach to parties who reasonably can anticipate litigation, not to nonparty witnesses. See also Rule 37(e) re failure by parties to preserve electronically stored information. And though I have not recently researched the question, my impression is that the majority of states do not recognize an independent cause of action for spoliation; the remedy must be pursued in the underlying litigation, and in that litigation, as noted above, the obligation to preserve attaches to a party and is enforceable through sanctions. To be sure the destruction of tapes held by a nonparty after service of a subpoena could give rise to contempt proceedings against the nonparty, but why would a litigation hold letter impose an enforceable obligation?

            • Crusty

              I think you’re right, but, Trump is still an executive producer of the Apprentice. Maybe he’d be deemed to have control of the tapes, i.e., he, a party, is close enough to the entity that would have the duty to preserve.

    • Trump is probably under the impression that the president can’t be accused of sexual assault.

      • Lizzy L

        *cough* Bill Clinton Paula Jones *cough* And I believe that was sexual harassment, not assault. But it happened.

        • Hogan

          That’s the joke.

    • SNF

      I’m assuming she’s metaphorically launching a suicide attack.

      If she sues Trump her life will be absolutely ruined. But she will also damage Trump on the way down.

      Hopefully she’s aware of this and has made the decision that she’s willing to make the sacrifice.

      • randy khan

        I imagine the damage to her will be only incremental, since she’d already accused him and demanded a retraction. It’s hard to imagine that the mobs have not already descended on her.

  • Karen24

    And do, please, link to every conservative defense of Paula Jones whenever these cases get mentioned, especially when Republicans who argued that Bill Clinton was unfit for office scream that this is unfair. Hoist them on their own petards.

    • so-in-so

      The error is assuming they care, or that their voters care.

      • bizarroMike

        We only need 80K voters to care. Sure, the 27% aren’t reachable, and maybe not the next 19%, but the electorate is always changing.

    • so-in-so

      Also, the counter becomes “well, YOU made Bill Clinton president for two terms, so suck it libs”.

    • econoclast

      Conservatives are literally incapable of experiencing shame at hypocrisy. I don’t mean this in an exaggerated rhetorical sense — they simply don’t get embarrassed by it. It’s a purely liberal value.

      Remember that news story a month ago where Rush Limbaugh said “Liberals think everything sexual is okay as long as there’s consent,” and we all boggled at the idea that this is an accusation. Conservatives have that reaction to accusations of hypocrisy.

      • Origami Isopod

        “Hypocrisy is the tribute vice pays to virtue.” They honestly do not see a problem with it because, to them, what matters the most (after whether you’re of the “right” color, gender, etc.) is that you spout the right platitudes. Therefore, the South is more righteous than the Northeast, despite it being more violent, having more out-of-wedlock births, having a higher divorce rate, and so forth.

        • Hogan

          He approved of, gloried in, his every action; yet he wasn’t vain, exactly, and he wasn’t the hypocrite that Gertrude said he was. He had not evolved to the stage of moral development at which hypocrisy is possible. To him the action was right because it was his–-he had never learned to judge his own act as though it were another’s. If he had told you he would do something he did it, unless there was some reason for him not to do it. He had the morals of a State; had, almost, the morals of an Army.

  • MacK

    He’s also managed to do a Cosby – that is to say for many of the rapes that Cosby did the statute of limitations had run – but then Cosby made the mistake of calling the women liars…… restarting the clock on the facts, but in a defamation situation.

    Yes, as we discussed, there is that interesting “Catch 22” even if Trump was to argue that she’s a public figure – the actual malice exception to the defence includes knowing the defamatory statement was false when made. So to invoke New York Times v. Sulivan Trump would have to show that he didn’t know he was lying, which is kids hard because whether he was lying is what the whole case is ultimately all about.

    But Trump managed another Cosby during the campaign with respect to the Central Park Five. Here Trump called them murderous rapists, even though they had been loudly found actually innocent. Again, I think Trump has a huge problem here because he’d have t claim no knowledge of the DNA findings etc, that he read no New York Newspapers, etc. I wonder will they sue?

    And remember Jones v. Clinton – not only did it preclude getting the tort case stayed while Clinton was in office, it was Clinton’s lying in the deposition about Lewinski that got him impeached by the Republicans….

    • rea

      the actual malice exception to the defence includes knowing the defamatory statement was false when made. So to invoke New York Times v. Sulivan Trump would have to show that he didn’t know he was lying, which is kids hard because whether he was lying is what the whole case is ultimately all about.

      Well, but of course he didn’t know he was lying! It’s unreasonable to expect him to remember all the women he’s groped!

      • Slothrop2

        Seems like she meets all the criteria for limited-purpose public figure. She would have to prove reckless disregard for truth.

        • John not McCain

          The fact that you believe something usually means it’s 100% bullshit.

          • wjts

            Some percentage of bullshit, certainly. The actual malice exemption requires reckless disregard for truth or knowledge that the statement is false, as MacK said. Slothrop’s inability to use or understand words correctly evidently extends to simple conjunctions.

            • Slothrop2

              Knowledge of falsity is seldom the standard of proof in defamation cases. Do a Lexis Law search for the past five years. It’s all reckless regard for truth. Also, a judge could bootstrap the plaintiff as a vortex public figure. In any case, she’s regrettably a public figure.

              You’re an asshole.

              • wjts

                Unless you’re using “seldom” in a Slothropian sense to mean “never”, this does not refute my point.

          • Just_Dropping_By

            While I don’t know if a court would agree, it seems like there’s at minimum a non-frivolous argument for treating her as a limited-purpose public figure — AFAICT from the news coverage, Trump didn’t call her a liar in connection with some private conversation or out of the blue; he called her liar after she went to the media first to publicly accuse him of assault. That said, I think based on the available facts that she should still win since Trump should be deemed as a matter of law to have actual knowledge of the falsity of his statements.

        • The Dark God of Time

          Did you get your degree from a vending machine?

          • Scott Lemieux

            Donald Trump is Slothtrop’s eternal hero for beating Hillary Clinton, so therefore he gets a pass for everything he ever did before or since, QED.

            • Slothrop2

              Coming from a guy who pretty much got everything wrong. So much for “political science.”

              Donald Trump is horrifying. On the other hand, makes your life more interesting, no doubt, in reconciling the evident fallacies of your thesis of inexorable drift to the left.

        • randy khan

          But the point is that Trump, as one of the parties to the, uh, incident, absolutely knows whether what he’s saying is true or false. The Sullivan language really only has any impact when you learn the information from a third party and then publish it. (So, for instance, Tucker Carlson can’t be sued for publishing Trump’s denial, I mean, outside of everyone knowing that Trump always lies.)

          And I would add that the actual malice standard also would cover a situation in which you said something with no actual knowledge – if a reporter writes a story saying that Slothrop2 is a bank robber with no information to support the claim at all, for instance. So if Trump were to claim that he didn’t remember and so he denied it, that could be problematic as well. (His best defense to a defamation claim actually would be to claim that he thought she was someone else, but that kind of would admit the underlying act, which he wouldn’t want to do, or at least I think he wouldn’t want to do.)

          • CJColucci

            Trump, as one of the parties to the, uh, incident, absolutely knows whether what he’s saying is true or false

            So a jury is likely to think, because that’s common sense. But is this psychologically realistic about Trump?

    • SNF

      Ironically, I’d argue that Trump might literally not know if he lied.

      I imagine that he’s sexually assaulted and harassed so many women that he doesn’t remember each individual victim.

      • wengler

        There was that woman that claimed he basically attacked her on a plane four decades ago. This guy is a serial sexual assaulter. We knew it before Wisconsin, Michigan and Pennsylvania made him President.

  • so-in-so

    Republicans refuse to recognize the concept of consent (except in the limited case of not consenting to taxes), so you how this is going to go. See also the Greenwich GOP Pol arrested for doing a Trump on a female town employee after announcing he didn’t have to be “Politically correct” anymore.

    We may view “political correctness” as treating people as they wish to be treated, for the Trumpian GOP it’s refraining from rape.

    • Origami Isopod

      For the Trumpian GOP it’s “our betters” refraining from doing anything they like to their “inferiors.” Rape, lynching, gay-bashing, running over protestors, etc. etc.

  • yet_another_lawyer

    (3) Using a million-watt megaphone to lie about having sexually assaulted somebody is, independent of the assault itself, a horrible act that should be punished ruthlessly by the legal system, especially since the criminal law so often fails to punish sexual assault itself.

    The “especially” seems like an odd legal doctrine to me. Are you suggesting that judges presiding over civil disputes should have their decisions informed by how effective, if at all, criminal law is in this area? So, e.g., if the criminal penalties for sexual assault started going up the civil penalties should start going down and vice versa? Why, and how exactly would the court take evidence on that? That would be a strange battle of the experts indeed.

    • MacK

      Remember, this is a civil case – so the standard of proof is preponderance of the evidence – not proof beyond a reasonable doubt. Proving sexual assault is difficult because its a crime, proving he probably lied about it is a lot easier.

      The best bit is that the public will see this as a case where Trump is found “guilty” of sexual assault – and probably not consider the difference.

    • Paul Campos

      I’m not proposing a legal doctrine, I’m making a general cultural/political observation.

      ETA: Let me propose a legal doctrine just for this case: if the direct evidence in this case consists of the parties’ testimony, and there’s any evidence tending to show Zervos is not a pathological liar, then she should win on summary judgment.

      • Denverite

        Just so non-lawyers aren’t confused, what Paul is proposing (tongue-in-cheek, I think) isn’t the SJ standard. In fact, the SJ standard is almost the opposite of that.

        • tsam

          Oh, well that clears it right up :-P

        • Crusty

          Well, not exactly. Summary judgment is granted when there is no factual issue in dispute for a fact finder to determine. If one party who is on their face credible presents credible evidence of something, and the opposing party has absolutely zero credibility, and their opposing evidence which would raise an issue of fact is on its face, of zero credibility or probative value, then sj should be granted. Of course, the argument would be that it is for the fact-finder to evaluate the credibility of the witnesses and evidence, but Trump comes as close to anyone as having no credibility as a matter of law.

          • Denverite

            Please. Paul is proposing a SJ standard where the party moving for SJ wins if they produce evidence that is not deemed to be non-credible, regardless of what evidence the other side produces. That’s not what the Rule 56 law is.

            (And yes, maybe the thinking is that Trump is such a liar that his denial wouldn’t rise to the level of nominally credible evidence to put a material fact in dispute, but then I’d need to see some law for the proposition that other bad acts by a testimonial witness could rise to the level that no reasonable factfinder could view his testimony as credible under any circumstance. Because I doubt that there is any such law, though I guess anything’ possible.)

            • Crusty

              Here’s the hypothetical- Plaintiff accuses Defendant of doing X. Prior to the lawsuit, defendant has loudly and publicly proclaimed I did X. Plaintiff’s motion for summary judgment is based on her own credible affidavit that Defendant did X as well as undisputed evidence of Defendant’s loud and public proclamation that he did X. Defendant’s opposition consists of a denial that he did X. Summary judgment? What if the loud and public proclamation was made under oath?

              I’m not saying that’s the situation here, just food for thought.

              • Denverite

                No SJ in that hypothetical, at least if D can produce some nominally believable explanation as to why the prior procolomation was incorrect of qualified (I was bragging, I didn’t mean it in this specific case, etc.). All of that requires weighing credibility and should go to the jury under current Rule 56.

                • Crusty

                  Yeah, you’re probably right. Trump is about as close to legally unbelievable as it gets. And he’s going to be president.

  • Crusty

    Thank god hillary’s loss has spared us having to hear about salacious and scandalous behavior for the next four years

    • Scott Lemieux

      I don’t see an any accusations about email server management here, so seems like it worked.

  • MacK

    By the way, Trump really did a “Cosby.” If he did this (I think he did) the sexual assault was in 2007, 9+ years ago. It would be way outside any statute of limitations (just like the Central Park Five), but he managed to commit a new actionable tort by defaming her – and in doing so reopened the issue of the original act.

    • Gwen

      Given the way that Trump seems to defame a new person at least once per week during his 3 am Twittercapades, I suppose one possible legal strategy for the Resistance would be to “flood the zone” with defamation lawsuits.

      • dave

        You may be joking, but I actually think this is a potentially fruitful strategy.

        Does any lawyer on this board know if Ms. Zervos will get to use Fed. R. Evid 415 to allow her to probe Trumps history of sexual misconduct? While this is defamation case, it certainly hinges on the truth/falsity of an allegation of sexual misconduct.

        If Rule 415 is in play, suits like this have the potential to unearth tons of dirty laundry.

        There should also be efforts to drag Trumps businesses into these lawsuits and obtain discovery regarding their operations.

  • vic rattlehead

    I love it when Republican hackery comes back to bite them. Yeah I know Clinton v Jones was like what, 8-1? And Breyer didn’t even dissent, he concurred. But you know Republicans loved it. It led to that deposition and the impeachment and all that good stuff.

    And now…suck on it! Hehe.

    Just like Bush v. Gore being cited by district courts in voting rights cases (if I remember correctly). Teach Republicans that every slimeball tactic they innovate or use will be thrown back in their faces.

    Also: “It appears to us highly unlikely to occupy any substantial amount of petitioner’s time.” Now that’s a howler for the ages.

    • Scott Lemieux

      9-0.

      I’m sure one of Roberts’s clerks is drafting an opinion explaining how applying the precedent to this case would violate the Equal Sovereign Dignitude of the states, though.

      • Just_Dropping_By

        And why would Roberts want to do Donald Trump a favor? Other than whatever justice Trump appoints, nobody else on the Court owes him anything and they can’t realistically be removed or punished, so I have an extremely hard time seeing why they are going to do anything special for him unless it coincides with advancing some other interest of the justices.

      • Nick056

        To be scrupulously fair, there is a sentence or two in Jones about the likelihood that the underlying civil suit wouldn’t be terribly time consuming or taxing to a president’s limited resources, which is probably not the hottest prediction in jurisprudential history in light of subsequent events.

  • Your faith that the Supreme Court wouldn’t reverse itself should one of these cases be appealed that far is touching.

    • econoclast

      What is the point of comments like this?

      • Ahenobarbus

        To suggest that he is cynical about the Supreme Court, and that we should not expect the same rules to apply going forward.

        • bizarroMike

          Forcing the Supreme Court to change the rules in a hackish manner is still good opposition politics. It makes it clear that the Republicans will rewrite inconvenient laws rather than be bound by them. It energizes the opposition. It provided an aura of scandal (bonus: REAL scandal) around the administration.

          And if it happens that Roberts doesn’t want to appear to be that much of a hack, then maybe Ms. Zervos can get some justice.

          • howard

            I don’t think Roberts wants to be a hack but I do think the court could say we were wrong.

      • I think it’s called “legal realism.”

        • Dilan Esper

          It really isn’t. Karl Llewellyn and the other legal realists would eviscerate this sort of “the courts do whatever they want and never follow the law or precedent in political cases” reasoning.

          Legal realism holds that reasoning and precedent are window dressing, but that window dressing is important to the system. And there are plenty of examples of cases where the precedents get followed, even where politics are involved. How do people here explain a case like the Hamdi decision if the courts do nothing but cast political votes.

          This position is a stupid bit of hip anti-intellectualism put forth by people who don’t know shit about jurisprudence.

          There is a high likelihood that Clinton v Jones and US v Nixon will survive the Trump administration.

        • Gwen

          Here’s the thing. The core of legal realism is that judges vote their guts and everything else is, as Dilan says, “window dressing.”

          The thing is — why would any four of the current Supreme Court justices want to do Trump a favor?

          Even assuming that Alito, Roberts and Thomas are lost causes, I still tend to think AMK is in no mood for the bullshit.

          And Breyer, RBG, Sotomayor and Kagan are certainly not.

          • Breadbaker

            Given Trump’s comments about Roberts in Sibelius, if he, with life tenure, ends up toeing the Trump line on something personal like this (as opposed to policy on which they are likely in agreement), then we are all really and truly fucked.

  • shah8

    OT:

    BTW, when Eric Loomis starts waxing rhapsodic about the right of people of all occupations to form unions, think of this: http://www.huffingtonpost.com/entry/the-domestic-conspiracy-that-gave-trump-the-election_us_587ed24fe4b0b110fe11dbf9

    Police unions (as they are constituted now) are a direct threat to democratic governance, and must be crushed.

    Period.

    But of course, Chelsea Manning gets so much tougher love. She leaks some diplomatic and other secrets that upsets a few plans…Gotta be tough on her…

    • Ahenobarbus

      What does it mean to crush police unions? Make it illegal for police to belong to unions? Fight for better police union leadership?

      Loomis has problems with the behavior of some unions, but (a) thinks unions do more good than harm and (b) respects the right of workers to unionize, regardless of their politics.

    • gorillagogo

      This malfeasance has nothing to do with the fact that many of the perpetrators also happened to be in a police union.

    • Rob in CT

      I don’t think not having unions is going to make police less authoritarian.

    • Bootsie

      Because abolishing police unions will clearly stop cops from killing unarmed minorities.

      • If non union cops are paid minimum wage + tips, they will have much better customer service.

        • tsam

          That would fix the attraction/seeking of military washouts and bullies. THE FREE MARKET IS ALL KNOWING AND ALL POWERFUL

    • Dilan Esper

      Collective bargaining is a procedural right. Doesn’t matter that it is sometimes used for bad ends, any more than it matters that some free speech is noxious or that the Fourth Amendment sometimes lets a criminal out of jail.

    • Scott Lemieux

      Your argument that the 2003 Buccaneers won the Super Bowl because of their great rushing attack was less embarrassing than this.

      • Origami Isopod

        Not quite as embarrassing as his apologetics for a well-known harasser and blackmailer, however.

        • shah8

          Hmmm?

          White tears.

          how lovely.

          Mixon and her approach was always deeply problematic, Origami.

          • Origami Isopod

            Yeah, harassing women to suicide or near suicide is okay if they’re white. Or if they’re not white, but they’re being harassed by a fandom SJ darling. Who’s one of the top 0.1% of the world’s wealthy and in the ruling ethnicity of her country and may have been responsible for the deaths of several guests by poisoning in a hotel her family ones. But she’s a WoC in sf/f fandom so that makes her one of the downtrodden with no qualifications whatsoever, because class issues? What are those?

            You are a morally bankrupt pustule hiding behind buzzwords, and the word “problematic” has for years been nothing more than a weasel word used by weasels pretending to stand for Grate Justiss.

            • shah8

              Oh, I got your goat, now, did I?

              Origami, let’s not forget something. I know and talk to sci-fi authors, and I know the full story or something like the full story. I even actually have the receipts somewheres, digitally. I’m not interested in excusing the conduct of the person we are talking about. Nor am I interested in your pitiful oppression olympics. It was never about the dogs, Origami, and the generating forces behind Mixon’s post was basically out of a mix of personal conflicts and racism. She got into a private fight with another author. That author called in reinforcements, and it eventually resulted in a *preemptive* pr nuke, which is what that post was. Few people have any real sympathy for the people who were hurt previously by RH, they were just useful victims. Moreover, this sort of retribution, in a climate where we already have problems with authors ginning up their online fans to hurt people who are critical of their work, is just well beyond not ok. Seriously? Yeah, there’s a point to this whole “fruit of the poison tree” shit. Not to mention that there are more decisively racist people who rallied around that flag, attacking people I know, and I know who had nothing to do with RH besides basically being in a room with her (and because they aren’t white women).

              So forgive me, if I’m not quite other than deeply unsympathetic to your tears.

              • Origami Isopod

                I know and talk to sci-fi authors, and I know the full story or something like the full story.

                Uh-huh. And all of them can be trusted to be telling the full story. None of them have their own biases or grudges or, in some cases, edgelordy histories of behavior. Sure.

                As for Mixon, I really don’t give a fuck about her motives. I don’t care whether people’s motives are “pure” or not, only what they end up doing. Neither do I care whether some people who are genuinely awful took delight in RH’s fall. If you care more about that than RH’s victims, your ethics are shit.

                Mixon brought down someone who’s been abusing people for a decade. Your lack of concern for her victims is duly noted. Then again, as evidenced by your anti-union screed elsethread, you seem perfectly okay with shitty behavior so long as it’s “your side” who’s doing it.

                So forgive me, if I’m not quite other than deeply unsympathetic to your tears.

                Totally not misogynist to reduce a woman’s anger to tears. Totally not. Then again I’ve noticed that in some corners of SJ, you can be as misogynist (or homophobic or transphobic or classist) as you want, so long as you make sure to pick white victims.

                • shah8

                  *shrugs*

                  It doesn’t really even matter anymore. My side won, I think. Go on, get your tears going, and hopefully a handsome white (in all senses) knight will boot me out, or something.

                  I don’t think I’ve ever even excused RH’s conduct, besides something about how a lot of what was talked about was when she had to have been really young (thinking Heathers viciousness). I was pretty convinced by the evidence, as we all had to be.

                  It’s just…that motivations matter. It’d be great if from the time forward we stopped people like Cindy Pons’ bully(ies) and established a more accountable norm. However, at the bottom, this episode really was pretty much all about race, and white women’s ability to gatekeep, and that I will not countenance. Just another Mann Act. RH ended up getting nuked not for her worst self, trying to hurt people, but effectively for being her better self (of course with the fear that she could be her worst self again). And that was the message.

                • Rob in CT

                  It doesn’t really even matter anymore. My side won, I think.

                  Your side being who/what and what is it you think you’ve won?

    • Crusty

      Also sort of OT, but I used to occasionally lurk on a police message board, mostly because there’s something really wrong with me, but anyway, one day, a member (mostly retired or actual police) started a good for Scott Walker crushing the unions or something like that- maybe it was anti-fast food unions (burger flippers, being able to live!?!?), but to my mild delight, another commenter said something like this- may I remind you that we are all union members, we get to retire after 20 years with a benefits package that is unrivaled and after about eight or so years of service, most of us can top out with a pay package about equal to that of the governor.

      • tsam

        Did they flame him to the moon?

        • Crusty

          Quite possibly.

    • shah8

      I see the standard responses. They’re still shit.

      The central issue is that police unions form an alternative chain of command that has a great deal of legal shelter to spy, intimidate, and inflict violence on. Unions enable malfeasance for all cops, not just the member cops.

      Yes, I would abolish them, or institute a more strict regime over what a union can and can’t do, and enforce them. Like showing up wearing Trump hats. Or making sure they work for the minority police officers too. Discipline as a result of public complaints can’t be a part of what service they offer. Mayors and county officials are more strictly tied, in public and as a chain-of-command affair (in the sense that they have to eat the shit sandwiches) to the overall performance of police.

      I don’t know about embarrassment, Scott, I’d just point right back at your Zimmerman article back when it happened.

      Police unions simply do not function in society like other, even other nasty unions, do, and their consequences include helping to install a maniac with a trigger finger in the land’s highest office. Even if you think that it’s just individual NYPD, you still have games like what they did to that teenaged girl in Oakland…Among other shit…

  • AOHF

    Trump said she was lying after she came forward during the campaign to accuse him. By thrusting herself into the forefront of a public controversy she became a limited purpose public figure, and will have to prove by clear and convincing evidence that he made the statement knowing it was false, or with reckless disregard of whether it was false. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342-346 (1974).

    • clear and convincing evidence that he made the statement knowing it was false, or with reckless disregard of whether it was false

      Is this the sort of thing where “clear and convincing evidence” could include evidence of a pattern of behavior?

    • It’s by no means clear, from Gertz at least, that saying “Trump molested me” is the kind of “thrusting oneself to the forefront of particular public controversies in order to influence the resolution of the issues involved” that Gertz discusses.

      Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an “influential role in ordering society.” Curtis Publishing Co. v. Butts, 388 U.S. at 388 U. S. 164 (Warren, C.J., concurring in result). He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.

      What will be important is how Gertz etc. have been interpreted in that jurisdiction.

      • Just_Dropping_By

        Except that, AFAICT from the news coverage, Zervos actually contacted the media herself to accuse Trump of assault and voluntarily talked with reporters. It’s not that she filed a criminal complaint and then reporters came snooping around. Her conduct seems more similar to that of John and Patsy Ramsey, who were determined to be limited-purpose public figures for purposes of things relating to the Jonbenet Ramsey murder investigation because they voluntarily did interviews and spoke with the press. See Miles v. Ramsey, 31 F. Supp. 2d 869, 875 (D. Colo. 1998). That said, based on the available facts, Zervos should win the case regardless of her status as a private or limited-purpose public figure.

    • MacK

      But, to use the defence, he has to show he did not know that he was lying when he called her a liar – and after all it was his hand he used to grope her with. Did it have a mind of its own and not report to him where it was.

      The public figure defence is non-viable because to invoke it means that he gets into the heart of the entire case, was he lying, did he in fact grope her…..

      If he tries to use the public figure defence he lays himself still open to discovery on the question of does he grope women/did he group her. Because that is the glorious catch 22 – if he did then he knew calling her a liar was false, negating the public figure defence.

      • AOHF

        He would not have to show anything, because it would be her burden to prove that he made the statement with knowing or reckless falsity. Whether she’s a private figure and only has to show negligence by a preponderance, or a public figure who has to meet the higher standard, she should be entitled to discovery on all the issues, including what he did during all of their encounters, and what his state of mind was when he made the statements. If she’s entitled to punitive damages, she should be able to get discovery on his income and assets.

        • MacK

          No because you get back into the circular problem – if he assaulted her, he knows he did – so ipso facto you have reckless falsity – she should at least get discovery there. The whole thing is bizarrely circular, the defences hole is the same issue that is in his case.

        • Breadbaker

          Her testimony can be clear and convincing evidence if it is credited by the trier of fact and probative. There’s absolutely no reason she can’t meet that burden.

          This whole “he said, she said means no one can prove anything” is bullshit. I’ve sat on a jury where one man said one thing and the other said the opposite. Every person on the jury reached the conclusion that the defendant was a lying sack of shit and the victim was telling enough of the truth (the parts that met the elements of the crime; he lied about other things) that we took 20 minutes to convict. And that was with “beyond a reasonable doubt.”

      • so-in-so

        But, to use the defence, he has to show he did not know that he was lying when he called her a liar – and after all it was his hand he used to grope her with. Did it have a mind of its own and not report to him where it was.

        I look forward to future uses of the “Dr. Strangelove” defense in such cases.

        • MacK

          Strangelove – and Thing T. Thing from the Adams Family was what popped into mind when I typed it

    • Gwen

      “Reckless disregard” is Trump’s signature.

  • muddy

    Maybe this was why Leahy made a huge deal out of making Sessions admit on the record that grabbing women like that actually was sexual assault.

  • Alan G Kaufman

    The actual strategic objective of this lawsuit is not to win it and prove that Trump is a liar or that he lied about this plaintiff. The objective is to use the civil discovery process to destroy him if possible, as nearly occurred to Bill Clinton in the Paula Jones litigation through deposition and discovery, and as did occur to Hillary Clinton in the Judicial Watch Benghazi lawsuits that revealed her use of a private server and instigated the “EMAILs!” debacle and FBI investigation. So don’t worry about the merits of this case; watch the discovery.

    • Matt McIrvin

      Before the election, Trump threatened to sue every single woman who accused him of sexual harassment. I recall people saying at the time that it was an idle threat because there was no way Trump was going to trigger discovery himself. That assumes he knew what he was doing, of course–but I recall it did cause the flood of accusations to quiet down for a while.

    • The Great God Pan

      How likely is it that the case even gets to that stage? Didn’t a judge throw out a similar suit against Cosby on the grounds that calling someone a “liar” is a statement of opinion, not fact?

      • MacK

        No, a court threw out a defamation claim in California using its anti-SLAPP law. It’s a matter of state law whether a statement is defamatory.

        In Cosby’s situation in some cases he had not made a very specific statement, or his lawyer or publicist had made vague statements that a claim has been “discredited.”

        If you call someone a liar in general terms it can be treated as a statement of opinion, but if the statement is specific – she lied about X and includes specific imputations of her character, that is probably defamatory. Trump made very specific statements about an alleged specific lie, made very specific derogatory statements about her and her motivation … that would cross the line in most places.

        • MacK

          The statements in the PA case were very vague and were on the opinion side of the line:

          In 2014, when numerous women publicly alleged that Cosby had sexually assaulted them, the comedian denied the allegations, telling Florida Today that “a guy doesn’t have to answer to innuendos. People should fact-check. People shouldn’t have to go through that and shouldn’t answer to innuendos.”

          Also that day, Cosby’s then-attorney Martin Singer said in a statement to The Washington Post that the claims were “unsubstantiated, fantastical stories about things they say occurred 30, 40, or even 50 years ago.”

          Then Cosby’s wife, Camille, criticized the media for publishing stories about the sexual assault allegations without first “vetting” the accusers. “An accusation is published,” she said, and “immediately goes viral.”

          On Thursday, the judge in the case ruled that those three statements did not amount to sdefamation.

          Well yes – they don’t reach the level of specificity necessary. Trump’s statements were very different.

          Other Cosby statements in other cases were not dismissed because they were more specific.

  • I want Mr. Trump to know that I will still be willing to dismiss my case against him immediately for no monetary compensation if he would simply retract his false and defamatory statements about me and acknowledge that I told the truth about him.

    Calling on TRump to admit he’s a liar without calling him a liar is the sort of thing that will have him flipping his wig from here until doomsday. I like it. I like it a lot.

  • MacK

    It’s really simple – Trump as a yuuuuge circular problem trying to invoke the public figure defence because of the actual malice exception. The problem is, actual malice includes the publisher, i.e., Trump, knowing the statement was false when he published it – but of course Trump knows whether he groped her – and she’ll argue that he had actual knowledge because his hand is actually operating at his volition …. so she gets to raise the issue of, did he sexually assault her and presumably know he did it as a response to the public figure defence.

    In short he can’t use the defence because using it brings into question the key issue in the case – did he grope her, etc. Did he sexually assault her? If he did, he presumably knows that and when he called her a liar he knew he was publishing a falsehood.

    And if he denies it – has he committed perjury ….. which brings us back to the Clinton case.

  • Denverite

    If I’m Trump’s lawyers, I’m brushing off ol’ Rule 68 and telling him to open his checkbook. I’d guess $15M or so would be enough to get the P to go away/scare her lawyers about paying his defense costs. And he could always argue it wasn’t a “real” judgment.

    • JDM

      How would he pay that, what with his foundation being shut down?

  • I’m brushing off ol’ Rule 68

    Is that, like, Rule 34 but twice as powerful?

    • Bootsie

      The Legendary Super Porn.

    • Denverite

      Er, I’d love to see the discovery analysis on that one. At most I’d think you’d be able to get tapes of him talking about assaulting women. The reputed racist stuff that exists would seem to be beyond the scope.

      • tsam

        I suppose they’d be able to redact impertinent footage, even if they’re on the same tape?

        • Denverite

          Yeah. Probably they’d just have his lawyers review the tapes and redact all but the responsive bits, though I wouldn’t rule out the court appointing a special master.

        • Amadan

          I suppose they’d be able to redact impertinent footage…

          Sometimes the jokes just write themselves!

      • You think his run-on sentences wouldn’t ever do double duty?

    • Abbey Bartlet

      We can embed tweets now?!

      • Hogan

        Front pagers can. Not proles like you and me.

        • Abbey Bartlet

          That’s some classist bullshit right there.

            • N__B

              I’ll bet you’re even willing to step on the lifeless bodies of steerage passengers, whilst eating bonbons, on your way to a lifeboat.

  • Amadan

    Not a Murkin lawyer, let alone a litigator (someone has to draft those contracts, dear!), so a question for this august assembly of cur. adv. vultures: The One Stooges called the lady a liar, she sues, and the strongest defence is, as always, that the defendant spoke the truth.

    Is it sufficient for him to show that, at the time he spoke, he was aware (and can show he was) of her having lied about anything – chopped cherry trees, cookie jar deficits, wotevah?

    • MacK

      Amadán:

      No – or let me put it another way, a generalised statement “she’s a liar” would be potentially not actionable anyway in US state law, so whether she tells lies from time to time is a non issue. A specific statement, “she lied about X, because Y” that’s actionable, whereupon the truth of X is at issue, and if specific and derogatory Y too.

  • NBarnes

    Seems the odds of this being settled approach 1. There’s no way Trump can afford discovery. See also his settling of the Trump U case just before he’d actually have to take the stand.

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