In a highly disturbing moment last night, President Donald Trump launched into an attack on former FBI lawyer Lisa Page and former FBI Counterespionage Chief Peter Strozk with a shocking reference to a restraining order that Page allegedly had to take out on Strozk after their affair. President Trump has previously attacked the couple, even mocking them in a made-up, seemingly orgasmic conversation in bed. Those were highly inappropriate and unpresidential moments but this could be defamation, if untrue. [Some media sites like the Daily Beast are saying that the allegation is being denied as untrue] Even if it is not actionable, occupying the space somewhere between defamation and demagoguery is no place for a president. (Note Lisa Page just filed a lawsuit under the Privacy Act on the disclosure of her emails with Strozk).
Page recently went public to denounce these attacks which would be horrific for anyone. Yet, from a legal standpoint, this is different. The President said:
“So FBI lawyer Lisa Page was so in love she didn’t know what the hell was happening. Texted the head of counterintelligence Peter Strzok, likewise so in love he couldn’t see straight! This poor guy, did I hear he needed a restraining order after this whole thing to keep him away from Lisa? That’s what I heard. I don’t know if it’s true, the fake news will never report it, but it could be true . . .
“Now that’s what I heard, I don’t know,” he added. “I mean, who could believe a thing like that? No, I heard Peter Strzok needed a restraining order to keep him away from his once lover. Lisa, I hope you miss him. Lisa, he will never be the same.”
Falsely stating that someone required a restraining order against you would be considered defamation. Strzok is a public figure (or a limited public figure) at this time. Under the New York Times v. Sullivan (or actual malice) standard, public officials and public figures must shown a knowingly falsehood or reckless disregard for the truth. Truth remains the main defense to defamation.
Obviously, political speech is afforded greater leeway and there is an effort not to intrude on the first amendment. “Thus, ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expressions[s] of . . . contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection.” Ferlautov. Hamsher (1999) 74 Cal.App.4th 1394, 1401. Moreover, “[S]ome statements are ambiguous and cannot be characterized as factual or nonfactual as a matter of law. ‘In these circumstances, it is for the jury to determine whether an ordinary reader would have understood the article as a factual assertion …’” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608
However, political speech is not a license for defamation and there is no ambiguity here.
If this accusation is true, it is not actionable though it would still be in my view deeply and chillingly inappropriate.
If it is false, the question is whether saying that he does not know if it is true is a real defense. This issue came up in the Seventh Circuit case of Wilkow v. Forbes where Judge Frank Easterbrook wrote:
“In Illinois, a ‘statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion,’ but if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.’”
Here President Trump is saying that he “heard” that there was a restaining order but did not know whether it is true. That puts the statement (like so many) right on the line.
If there was a restraining order, there is no liable legal course of action for Strzok on the speech. Once again, however, that attack should never have occurred. I cannot imagine the relevancy of this information even if true, but to make such a statement without knowing the truth only magnifies the deep concerns over such attacks by a president.
A lying coup attempt for an entire POTUS term is also unpresidential.
Get honked.
Clown world.
Go to gehenna, and all the rest.
We’re supposed believe this crap, while all the democrats and BLM and antifa run around daily making false accusations and actionable defamation against Trump, and the entire msm lib wing which is 98%.
GO BLOW a horn into the sand while bowing to your masters, blm, msm, democruds, commie internationale
Trump was at a rally when he did the little mockery of Page and Strok. It was funny as heck, it was for his supporters who loved it, and if you think it’s *unpresidential* I and most others don’t care. We elected him to do a job, which he is doing and so what if he’s an over the top brash comedian once in awhile.
That might apply, if in the words of one of Tom Clancy’s characters about who decides what is Presidential, a reporters answered in DC I decide. We the majority of legal voters charged him with two major actions and two major programs. Expose and Destroy the socialists (and gave him a good head start) and then economics and taxes with a return to affordable health care and finish up the wars of the left close behind.
As to the comment they deserved it, they earned it and it was in every way called for.
Strozk and Page were not public figures until the DOJ released their emails. Their privacy was violated and continuing attacks against them are inappropriate.
and continuing attacks against them are inappropriate.
I see they’re entitled to be abusive and crooked government employees because reasons. Always an education.
But its ok for a high level FBI to stage a coup against a President and hatred for his stinky deplorable supporters. You cant blame Trump for being pissed. It might not be Presidential but we didnt vote for a wuss, we voted for a disrupter and a fighter!!
That’s how we got here – all the fake people lying to the cameras and the TV and the courts, and anyone else, to keep their violations and crimes hidden, and when the spotlight isn’t on, descending into their personal and shared ghettos and sick glee full of duping delight.
For sure. Keep it up Mr. President
Most of us agree that this is stuff that presidents should not say.
If Strzok wants to sue Trump for defamation – he should do so.
There is a different problem that Turley did not address. That was sort of the subject of the book and Movie QB VII.
Trump may have defamed Strzok. But Strzok’s now well known actions as deputy cheif of counter intelligence at the FBI and on the Mueller investigation were despicable.
Defamation requires the statement to be false – but damages require the person to have a good reputation that has been lost as a result.
Strzok does not. Trump may have defamed him, but Strzok ruined his own reputation.
That does not alter the fact that alot of what Trump says probably should not be said.
I regret to inform you, that here in the real world, we American patriots who revere our beloved country hold Strzok to be an authentic American hero, dedicated public servant and a law enforcement professional of impeccable credentials. So sorry for your loss, thanks for playing.
this is to “that ticking sound is getting louder” jonny
Marky Mark Mark – if you think Strzok is “an authentic American hero” you are not dealing well with the real world.
Mr. Schulte,
Strzok was probably the most arrogant, obnoxious Congressional witness in modern history.
I can see why he probably has Mark’s undying admiration.
We must all understand that Mark M. is a great fan of Stalin and his tactics. Though in the law field and bleeding from his paper cuts due to not being able to file documents properly (as assistant file clerk) he thinks that those that are biased in his favor can commit any crime and should be praised for it.
A bit nutty but we are talking about Mark M.
“…occupying the space somewhere between defamation and demagoguery is no place for a president.” Same goes for stealing from a charity that he started. The great corruption fighter… Where does one get the slime proof glasses that render Trump’s repulsive character invisible? I should ask Mike Crapo.
Just 2:20 min, I think well worth it! 😉
https://www.memeworld.com/meme/impeachment-anthem/
It looks like Trump is a little salty when FBI agents try to undermined his presidency, and campaign before that. My personal opinion I wish he wouldn’t get down to their level, but instead continue lobbying for their imprisonment and treasonous behavior.
I see the heat from dems has demanded high criticism of the President. My previous praise of you is withdrawn.
Turley wrote: ” occupying the space somewhere between defamation and demagoguery is no place for a president.”
You generously place him several Circles of Hell higher than his final destination. This behavior is yet another abuse of power in its most vulgar form.
Why has AG Barr failed to at least jailed some of these Ph’in TRATIORS like Page, Strozk, McCabe, Commy, Hillary, Obama, Mudd, etc……?????
Houston, Houston, come in Prof Turley, come in!, you have a problem.
This crap has nothing to do with being actionable, occupying the space, defamation, demagoguery.
It’s about the on going Deep State Coup, Anti-American forces inside our Govt , their Seditious Treason & Espionage threatening the physical safety of 330 million US citizens while they’re screwin around on the Taxpayers dime.
Maybe what Pres Trump should be doing is taking bids from the public as to how much they would pay to be on the firing squad after the fair trial for selling out us & our nation.
Perhaps they are building a solid case. Might take time. (Tho I never understand why the local police take a year to gather evidence prior to shutting down a “massage” parlor. Well, beyond the obvious reason.) Complicated by Grand Jury material that is not releasable, possibly to sequence the accused in the best order, perhaps to target who is most likely and most useful to flip. I’m impatient too. Want to see cuffs, perp walks, SWAT raids … and prog heads exploding. Still hoping.
So it’s ok for Lisa and Peter to insult Trump in their texts (probably because they never intended them to be public) but it’s not ok for him to taunt them? Well, let’s impeach him then! Oh, wait…tried that.