Krebs Files Lawsuit Against diGenova, The Trump Campaign, and Newsmax

Christopher Krebs, has filed a lawsuit against Trump attorney Joe diGenova over this controversial joke that Krebs should be “drawn and quartered” and then “shot” for his failures as the former head of U.S. cybersecurity.  The lawsuit strikes me as meritless under governing tort doctrines. While Mark Zaid declared that “no rational person” who heard diGenova calling for a person to be drawn and quartered and then shot “would have taken it as ‘jest,’” many of us took the comment as an obvious use of exaggerated rhetoric. While I immediately condemned the language, I did not view it as a serious call for violence. Torts cases of defamation often turn common understanding of such expression as jokes or opinion. The lawsuit not only contradicts governing case law but threatens constitutional protections for free speech and the free press in seeking such tort relief.

Joe diGenova gave an interview to Newsmax’s The Howie Carr Show and said that Krebs  should be “drawn and quartered” and then “taken out at dawn and shot.” It was a typical over-heated statement of “that guy should be shot” variety. diGenova made it even more absurd by combining it with a medieval method of execution. It was both literally and figuratively an example of overkill.

In an interview with the Washington Examiner, diGenova quickly stated that his comment was a joke and not intended as a threat. He stated “For anyone listening to the Howie Carr Show, it was obvious that my remarks were sarcastic and made in jest. I, of course, wish Mr. Krebs no harm. This was hyperbole during political discourse.”

The lawsuit names diGenova as well as the Trump campaign and Newsmax. The lawsuit is filed by Charles Fax and Liesel Schopler of  Rifkin Weiner Livingston Inc and Jim Walden, Jefferey Udell, Jacob Gardener, Rachel Brook, and Derek Borchardt of Walden Macht & Haran. It is not clear who the opposing defense counsel will be in the case.

The lawsuit reads at points more like a political screed in defending the “patriot” Krebs against the “angry mob” fueled by Trump and diGenova who is described as a conspiracy theorist.

Count I is a straight defamation claim (against all three defendants). Count II is an intentional infliction of emotional distress claim (against diGenova and the campaign).  Count III is an aiding and abetting claim (against Newsmax). Count IV is a civil conspiracy claim.

From the outset, the complaint collides with controlling case law.  Take Count II. The argument of Krebs would gut the first amendment and run counter to the clear precedent laid down in Snyder v. Phelps, 562 U.S. 443 (2011). I previously wrote that such lawsuits are a direct threat to free speech, though I had serious problems with the awarding of costs to the church in a prior column.  I was therefore gladdened by the Supreme Court ruling 8-1 in favor of the free speech in the case, even if it meant a victory for odious Westboro Church.

Roberts held that the distasteful message cannot influence the message:

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.” Roberts further noted that “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

The Court in cases like New York Times v. Sullivan have long limited tort law where it would undermine the first amendment. In this case, the Court continues that line of cases — rejecting the highly subjective approach espoused by Justice Samuel Alito in his dissent:

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).
The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and some- times unpleasan[t]’ ” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.

Ironically, these lawyers are espousing the position of the lone dissenter: Justice Alito. The dissent  gave little credence to concerns over the constitutional rights raised in the case. He insisted that “[i]n order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.”

It is hard to see how any court could accept Count II and not do precisely what the Supreme Court barred in the use of this tort to limit political and religious speech.

Count III and Count IV is equally troubling. It makes sweeping and vague claims of aiding and abetting and conspiracies without support.  The comment was clearly part of over-heated rhetoric now common on both ends of the political spectrum. Such claims, if successful, would gut the first amendment.

That leaves us with Count I on defamation. That claim is equally dubious from both constitutional and tort perspectives.  The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written and he is precisely the type of plaintiff that the opinion was meant to deter. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, West must show either actual knowledge of its falsity or a reckless disregard of the truth. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Again, the Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” by articulating that standard that now applies to both public officials and public figures.

Krebs is a former public official and a current public figure under  Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) and its progeny of cases.  The Supreme Court has held that public figure status applies when  someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” He would have to carry the burden of proving that the defendant knew the statement was false or showed reckless disregard for its truth. The problem is the the statement is clearly opinion given in the heat of a contested election.

The Supreme Court dealt with such an overheated council meeting in Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6 (1970), in which a newspaper was sued for using the word “blackmail” in connection to a real estate developer who was negotiating with the Greenbelt City Council to obtain zoning variances. The Court applied the actual malice standard and noted:

It is simply impossible to believe that a reader who reached the word “blackmail” in either article would not have understood exactly what was meant: It was Bresler’s public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable.

The comment here is clearly “rhetorical hyperbole” that is part of public debate over the 2020 election.

Ironically, I have previously criticized President Trump for his calls (here and here and here and here) to change defamation laws to erode protections for the media and free speech. These lawyers and Krebs are doing precisely what Trump has called for.

Notably, while I consider this lawsuit to be meritless, I do not believe that any of these lawyers should be charged with bar complaints. That has been the call of Democratic members and many liberal lawyers who want to see bar complaints filed against lawyers challenging the election.  I also would not support a campaign like the one at the Lincoln Project (funded by many lawyers) to harass these lawyers or put pressure on their clients.  The lawsuit in my view will fail and the legal system will protect free speech from such ill-considered and unsupportable legal claims.

Here is the complaint: Krebs v. diGenova

165 thoughts on “Krebs Files Lawsuit Against diGenova, The Trump Campaign, and Newsmax”

  1. Krebs is a former public official and a current public figure under Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974)

    He is a CURRENT public official for purposes of the case since his official acts were the basis for Di Genova’s comments.

  2. On the bar complaints – at some point you just have to say Trump and his allies are abusing the court system. They lost more than 50 post-election cases at this point. There were many pre-election cases as well. Whenever they lose they just file essentially the same case again. And then they lose that one and again refile. The claims have been found to be without merit. They are just trying to keep up the impression that there is still something at issue; something the courts have not yet ruled on, because there is always another case. At some point – and I think the point has long passed – these people should be losing their law licenses.

    If you look at Trump as a litigant – he is one of the most prolific litigants in the country. He files lawsuits over everything. Thousands of them. His goals, generally, are to harass, wear out and bankrupt people in court. He refuses to pay contractors for work done then sues them. People like that destroy the functioning of the courts.

    1. How many frivolous statements does this frivolous icon have along with frivolous names though we all know who he is.

      He needs to get out of his mothers basement. Mom is too old to take care of him any more.

  3. I’ve read James Baker’s 10/03 and 10/18/2017 that directly refutes Mr Krebs denial of operation Hammer. Mr Krebs used his position as a public servant to make deceptive propaganda at best this was despicable. Also Mr Krebs should have prefaced his public statements with his relationship with Mr James Clapped amongst others around years 2007 to 2018.

  4. It was hyperbole. Obviously. I also think such high strung rhetoric is not needed at this time. You can express your outrage and indignation better.

    Directing rioters to burn someone’s house down would be a more realistic, actionable threat.

    Tarred and feathered, drawn and quartered, buried in an anthill, run out on a rail, beaten with a stick – these are all rhetorical expressions of outrage, obviously not to be taken seriously. Still, it is time for more focused, effective speech rather than floundering around blowing off steam. Regardless, free speech should be protected.

  5. This is a frivolous suit. Who do you suppose is financing it? Maybe the same set of characters financing Michael Mann?

  6. I have read the complaint filed by Mr. Krebs and agree with Prof. Turley’s analysis of the applicable law. Mr. diGenova is an idiot, but idiocy by itself does not create a cause of action. Had he made a serious claim that Mr. Krebs had committed treason, a defamation per se claim would lie, but he (perhaps carefully) didn’t. The underlying problem, of course, is that reprehensible and outrageous language can provoke reprehensible and outrageous conduct, a phenomenon much repeated over the last several years. I don’t know a solution to that problem, but I do know that eroding First Amendment protections is not one of them. Having said that, it is also true that the filing of this suit exposes an increasingly common, and ethically questionable, habit of lawyers to appear on public media and make stupid and even incoherent comments while hiding behind the false assumption that a law degree confers expertise on any matter. In short, this suit reminds me of Chris Rock’s famous (and hilarious) line, “I’m not saying that it’s right, but I understand it.”

    1. Luckily Chris Rock didn’t have to pay legal fees for a Rule 11 violation. This suit is crazy.

  7. SMH. Trump and the Senate allowed the FEC to remain without a quorum since the summer (and off and on before that during the Trump Admin, and without a full slate of 6 commissioners for pretty much the entirety of his Admin.), and the Senate just approved 3 new commissioners so that there’s finally a full slate. Glad that they can finally do their work, but still frustrated that they sat on this until the transition.

      1. Anonymous and anonymous are consumed with everyone else. Strange because they are consumed with those that have names and neither of them do.

        They act like girly men.

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