Trump Attacks Page and Strozk With Disturbing Reference To Alleged Restraining Order

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.

59 thoughts on “Trump Attacks Page and Strozk With Disturbing Reference To Alleged Restraining Order”

  1. Informative article… The question though is not whether this is defamation – such statements, however prefaced, are obviously defamation – the question is whether it is actionable.

    What we are speaking of here is nuances of language and what needs be explored is WHY such statements, properly prefaced (“I don’t know but I’ve been told”) are not actionable.

    I believe you mentioned ambiguity – let it be stated here that that which is not definitive – “I don’t know” – is non-conclusive, therefore ambiguous.

    The very fact that you would have us argue the indistinct, the imprecise – that such a statement may be actionable – is ambiguous.

    Even your statement itself – “restraining order” as defamatory – is rather presumptuous, therefore ambiguous. As in many social circles today such would be received most honorably as accolade.

    As for Peter and Lisa their behavior is not only subject to censure before the People but also before the law – quite clearly it would appear this relationship, if not an outright violation of policy, is almost certainly a violation of sexual harassment statues – this is a supervisor unquestionably engaged in a relationship with a subordinate. And there is no doubt that remuneration is in that subordinate’s future.

    Trump knows that…

    There is also the question of pillory – this was not our first “issue” with the FBI; the bar had been so lowered under the Obama administration as to be non-existent – there is therefore real need to “pillory” this cast of characters, to restate the public’s position, to reinstate scruples and integrity.

    It’s interesting because the political here grants life to that which we would prefer to view apolitically, to even question the feasibility of “dispassionate” itself.

    1. Some jailhouse lawyer you are. If I say that I’ve heard that you are a pervert. And repeat that “rumor” about you. Then saying, “I don’t really know if it is true,” will not get you off the liability hook.

  2. Here are two things that Trump may be wanting to cover up via the mechanism of bizarre tweets: 1. tomorrow he will cut food stamps for our poorest, most desperate citizens, including nearly 1 million veterans and 5000 active duty troops. Even more people, including more children will now go hungry in one of the richest nations on earth, a nation who has been shown to have falsely kept troops in Afghanistan, killing their people and ours while handing out bags full of money to warlords there. I’d be real ashamed of doing that and maybe I’d want to cover that over in any way I could. 2. Trump is about to sign and EO designating Judaism as a nationality so that the BDS movement can be eliminated more easily. Too bad S. Africa wasn’t a religion. Rather it was a nationality. Free speech remains our birthright no matter how much the president would like to eliminate it.

    1. What Jill fails to see is the abuse of the food stamp program that costs working families lots of money. The policy is not meant to exclude those that actually meet the poverty needs of food stamps rather to stop abuse of the program. Such abuses of welfare type programs make it more difficult to satisfy the needs of those that warrant help. It is annoying for working people to waste money on those who have more income than the normal working person. Not all people granted TANF should qualify for SNAP. Trump is closing loopholes and that benefits the nation including workers and those in serious need. Of course some only want benefits to flow to illegals and those that choose not to work. Are you one of those Jill?

      ” Free speech remains our birthright no matter how much the president would like to eliminate it.”

      It is also annoying when a person casts aspersions on a President that are blatantly untrue evidenced by the fact that the person doesn’t provide proof.

      1. I saw a news article which contended that 700,000 recipients would be cut from the rolls, just north of 2% of the beneficiary population. It’s absolutely amazing the assumptions encoded in the complaint offered by roaches like Jill. They are either operating under the assumption that (1) the previous eligibility standards were absolutely optimal, or (2) that the population of people drawing benefits is ever a subset of those who should be drawing benefits or (3) the census of beneficiaries must never decline the least little bit.

        1. DSS, Jill is the type of person that advocates policy preventing the nation from doing good for working families and the needy. She refuses to restrict funding to those not in need as long as it is other people’s money.

  3. I’m much more concerned with the behavior of Schiff, Nadler, and Pelosi. I couldn’t care less what the President says at a campaign rally.

  4. It will get much worse before it get better. The Left is nuts and started this fight. I do wish our president would take it down a bit.

  5. “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.”

    BOTTOM LINE: Trump has acted disgracefully and no excuse can justify this cruelty caused to Americans that serve our country.

  6. The Prof is attempting to balance his pro-Trump impeachment opinions. I don’t believe that this can rehabilitate JT.

  7. Welcome to Heinlien’s Crazy Years, professor. And hope they aren’t prelude to something very ugly.

  8. First a qualification, I voted for Trump. However, I do not like some of his rhetoric. I listened to his speech last night until this point and politely turned the channel. He destroys a significant amount of his credibility by doing things like this. He may want to fight fire with fire but a bigger person would rise above the gutter tactics of his opponents. Having said that, I will vote for him again because he is the first president in decades who has actually delivered on his campaign promises in a significant way to improve the lives of the middle class.

    1. Pamela, I too sometimes am not so happy with his rhetoric, but Trump has to address himself to many different types of people so they understand what is happening as well. That means that both of us need to be kind when he says things that we may not find approrpiate but need to be said to another segment of the population. After all we are looking at the end product which in his case has been fantastic and lives up to his campaign promises.

  9. Why do I have a feeling there is fire where there is smoke? Truth is usually the defense to libel and if there is a restraining order out there from Lisa Page to Peter, doesn’t make any difference what the President says.

    However, to prove the President a liar again, they will have to track down that RO

  10. Hi Professor Turley. Very often I think President Trump is just fighting fire with fire. Look at what Mr. Schiff recently got away with, i.e., totally distorting the Ukraine call transcript. Our government is in very, very sad shape.

  11. Why “horrific”? Being tortured is horrific. Being wrongly convicted and imprisoned is horrific. Being in battle is horrific. I agree the president should not get down in the gutter like that, but calling it “horrific” only fits for hyper-reputation-sensitive-inside-the-beltway types.

  12. you cant imagine why he would say it? come on! to get them votes buddy! nothing perks up ears like a good salacious detail. and while you think, gosh thats disgusting what that horrible man said, you also think about these two gross pasty fbi agents boning in a white van somewhere. allegedly.

    1. Mar Nelson

      The 1% has always preferred authoritarian rule. In WW2, the 1% thought we should join forces wit Germany and fight against the Soviet Union. The U.S. government shut down a BUSH family-run bank for “trading with the enemy” – namely Nazi Germany.

      1. Bill m.
        Brown Brothers Harriman has been in business for at least 90 years.
        So it was not “shut down”. Also, it was not “a Bush family- run bank”.
        Prescott Bush was on the Board of Directors of BBH for a time, but that hardly makes it a “Bush Bank”.

      2. In WW2, the 1% thought we should join forces wit Germany and fight against the Soviet Union.

        In your imagination only.

    1. Certainly he tries not to burn his bridges to either side! Doing otherwise would be bad for business. I wish I was a student in one of his law classes so I could confront him. I wonder how he handles the feedback from his more liberal students and faculty.

  13. My only deep concern is that anyone involved in the FBI surveillance of American citizens or who was/is engaged in so-called ‘resistance’ behavior, including the press, against the POTUS is seen as patriotic.
    The rest of this is for Miss Manners and Bill Kristol to busy themselves with.

    1. Do you remember who said that Independent Bob?

      Soupy Sales and he was fired for his next statement having to do with cream.

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