Gabbard v Clinton: A very tough defamation claim to win

Whew. What will Tulsi do next? Her latest fit of pique was the $50 million defamation claim filed against former Secretary of State and 2016 presidential candidate Hillary Clinton. You can read the 14-page lawsuit here.

Clinton’s statement, made during an interview by David Plouffe, President Obama’s 2008 campaign manager, did not point to Gabbard by name, and was quite brief.

Here’s the statement as quoted in the lawsuit:

17. On October 17, 2019, Clinton was a guest on the podcast Campaign HQ With David Plouffe. In the course of a widely-distributed national interview, Clinton stated the following regarding “somebody who is currently in the Democratic primary” who “[they] are grooming . . . to be the third-party candidate”:

She’s the favorite of the Russians. They have a bunch of sites and bots and other ways of supporting her so far. And, that’s assuming Jill Stein will give it up, which she might not because she’s also a Russian asset. Yeah, she’s a Russian asset.

Politifact published a longer section of the interview to show the broader context of Clinton’s comment.

Clinton: “The thing we have to do is get enough people to turn out so that they can’t, you know, steal those votes through suppression in Wisconsin, or convince blacks not to vote in Michigan, all the stuff that they did this last time which was very effective and the Russians play a big role in.”

Plouffe: “Right, and they’ll double down on this time. Trump had those advantages but he was not an incumbent. So as we know, whether it’s Ronald Regan, your husband, Barack Obama, those first 18 months of the election cycle were as important as the last six months. …

“You know, Donald Trump, as you know better than anyone in the world, only got 46.1% of the vote nationally. You know he got 47.2 in Wisconsin, 47.7 in Michigan, and if you had said those before the election you would have said he’s going to lose in a landslide.”

Clinton: “Right.”

Plouffe: “But one of the reasons he was able to win is the third party vote.”

Clinton: “Right.”

Plouffe: “And what’s clear to me, you mentioned, you know, he’s going to just lie. … He’s going to say, whoever our nominee is, ‘will ban hamburgers and steaks and you can’t fly and infanticide’ and people believe this. So, how concerned are you about that? For me, so much of this does come down to the win number. If he has to get 49 or even 49.5 in a bunch of…”

Clinton: “He can’t do that.”

Plouffe: “…which I don’t think he can… So he’s going to try and drive the people not to vote for him but just to say, ‘you know, you can’t vote for them either.’ And that seems to be, I think, to the extent that I can define a strategy, their key strategy right now.”

Clinton: “Well, I think there’s going to be two parts and I think it’s going to be the same as 2016: ‘Don’t vote for the other guy. You don’t like me? Don’t vote for the other guy because the other guy is going to do X, Y and Z or the other guy did such terrible things and I’m going to show you in these, you know, flashing videos that appear and then disappear and they’re on the dark web, and nobody can find them, but you’re going to see them and you’re going to see that person doing these horrible things.’”

“They’re also going to do third party again. And I’m not making any predictions but I think they’ve got their eye on somebody who is currently in the Democratic primary and are grooming her to be the third party candidate. She’s the favorite of the Russians. They have a bunch of sites and bots and other ways of supporting her so far, and that’s assuming Jill Stein will give it up. Which she might not, ’cause she’s also a Russian asset.”

Plouffe: (Inaudible)

Clinton: “Yeah, she’s a Russian asset, I mean, totally.

“And so, they know they can’t win without a third party candidate and, so, I don’t know who it’s going to be it but I will guarantee you they’ll have a vigorous third party challenge in the key states that they most need it.”

The Washington Post’s Fact Checker gave Gabbard’s claim that Clinton said she was being “groomed” by the Russians a “Three Pinocchios” rating (“Tulsi Gabbard misquotes Hillary Clinton’s jab at her“).

Taking a different approach, a column in the Washington Monthly summarized the available evidence of Russian interference in the 2016 election and initial evidence of their continued efforts in the current campaign (“The Overwhelming Evidence in Support of Clinton’s Claims About Gabbard“).

Current defamation law makes it difficult for a public figure such as Gabbard to prevail in a lawsuit of this kind. A public figure must prove not only that a statement was false and damaging, but must show it was made with “actual malice”, defined as “with knowledge that it was false or with reckless disregard of whether it was false or not.”

Further, in the landmark 1964 case of New York Times Co. v. Sullivan, the U.S. Supreme Court held that “actual malice” had to be proven “by convincing clarity.”

That’s a standard Gabbard is unlikely to meet.

This is another case in which Tusli Gabbard’s actions seem aimed more at damaging the Democratic Party and its eventual electoral prospects than promoting her own political interests.

And whose interest would that be in?


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5 thoughts on “Gabbard v Clinton: A very tough defamation claim to win

  1. Lawrence

    I just wanted to share this. Part of the Russian disinformation campaign was to get Bernie supporter to write in Bernie. In Wisconsin 34,000 did that. HRC lost by 24,000,

    Reply
  2. Patty

    I can’t say that I have respect for Clinton. THEGRAYZONE.COM offers good insights in the exchange between Journalist & Producer Aaron Mate and Michael Tracey, Independent Journalist following Tulsi. Tulsi challenges conventional thinking on Foreign Policy.

    Reply
  3. She Came in Like a Reeeeeking Bull

    Say what you will about Clinton and Russian meddling, but this “lawsuit” is nothing but political exhibitionism from a sure loser with delusions of grandeur, and an abuse of our court system. That’s all.
    From a legal standpoint, it’s so weak that it does not warrant serious discussion, and it’s hardly worth commenting about here except as an illustration of absurdity and unfitness for public office. It’s not even constructed like a legitimate lawsuit, but rather like nauseating campaign advertising, to wit: “Tulsi Gabbard has lived her life with one guiding principle: putting the needs of others before her own.”
    Oh please, go toot your tuba in Syria.
    This obvious publicity stunt may briefly excite a few MAGA and FOX types, and perhaps a few starry-eyed fools on the other end of the spectrum, but it will be promptly tossed. But by then nobody will even care, and the result will likely go unreported because it simply won’t matter.

    Reply
  4. Legal Beagle

    Spot on analysis. Defamation cases are very difficult to prove on liability, and even harder to prove on damages (how do you prove actual harm to your reputation and put a dollar amount on it?). I agree with you that Tulsi did not file this suit because she thinks she can prevail on the merits.

    Reply

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