Conspiracy theorists Jacob Wohl and Jack Burkman, a conservative lobbyist and radio host, are outspoken supporters of President Donald Trump and called reporters to come to a Holiday Inn in Washington to hear from a woman who would allegedly accuse Special Counsel Robert Mueller of sexual misconduct. Previously, Mueller referred an allegation to the FBI that women were promised money to accuse him of wrongdoing. With the no show of their accuser, Wohl and Burkman could well be looking at both criminal and civil liability.
Reporters revealed earlier in the week that they had received emails from a woman who said that the was offered the money to implicate Mueller and reporters said that the offers were linked to SureFire Intelligence, a company NBC News connected to Jacob Wohl. Later a second woman said that she was also offered money by a SureFire agent.
The press conference was going to feature an accuser described as a Los Angeles native in her 30s who was going to detail allegations that Mueller had sexually assaulted her in a hotel room in August 2010. Wohl described her as “a fashion designer, who was “well-educated and comes from a good family.” He emphasized that “She is a gal who has an illustrious background and she is not politically oriented.”
However, Wohl explained that she was afraid for her life after arriving in Washington. He said that she “panicked and boarded a flight to another location.”
The press conference quickly turned bizarre. Wohl denied any offers of money – the matter that has now been referred to the FBI for investigation.
When reporters noted that Mueller could show that he was at jury duty on the specific date, Wohl observed that “sometimes people go to jury duty, but they’re also somewhere else.” When reporters began to laugh, Wohl insisted “It’s not funny. It’s not a laughing matter.”
Indeed, it is not. Putting aside the potential for criminal liability, Mueller could well sue the two men and the woman for defamation if the allegations are false.
New York Times v. Sullivan places public officials (and later public figures) under a higher standard for defamation in the case: requiring a showing of actual malice or knowing disregard of the truth. That makes it more difficult to prove defamation if you are a public figure. However, it is not impossible. Even if these two individuals could convincingly argue that they did not have actual knowledge of falsity, there could be a real challenge under the reckless disregard prong. Moreover, Mueller would be entitled to discovery in fully exploring their financial and political connections to any effort to defame him.
The criminal investigation will obviously turn on questions of fraud as well as alleged efforts to intimidate a prosecutor or obstruction of an investigation. There are also possible charges like subordination of perjury depending on any specific arrangement with these women. Mueller however is clearly reluctant to pursue a personal tort claim when he is trying to complete his investigation as Special Counsel. His referral to the FBI therefore allowed for an investigation while separating himself from that effort. There is ordinarily a one year or two year statute of limitations. In D.C. it is one year. See D.C. Code Sec 12-301(4). Thus, Mueller can allow the criminal investigation to be completed and then, after ending his work as special counsel, file a lawsuit against the individuals.
The allegations are equally troubling if they are true or false. If false, the allegations raise a deeply disturbing effort to discredit the Special Counsel on a personal level. If that is the case (and I see no credible evidence against Mueller), Mueller should sue not simply for his family name but the public interest.