Below is my column in The Hill newspaper on the statement of Dr. Anthony Fauci and others that the origin of Covid-19 could well have been the virology lab in Wuhan, China. The increasing recognition of that theory could make a recent lawsuit against former President Donald Trump more of an opportunity than a liability. Indeed, Trump’s counsel may secretly want the flawed complaint by the Chinese American Civil Rights Coalition to survive standing and other threshold challenges in order to secure a ruling on the use of terms like the “China flu.”
Here is the column:
Throughout his career, Donald Trump often has been more fortunate in the political adversaries he makes than in the allies he keeps. This has never been more clear than with recent lawsuits that could not be better timed or crafted to vindicate him.
In the latest case, the Chinese American Civil Rights Coalition has sued the former president for using such terms as the “Chinese virus” and “Wuhan flu.” The lawsuit was filed just before National Institute of Allergy and Infectious Diseases director Anthony Fauci admitted that the COVID-19 virus may well have been released by a virology lab in Wuhan, China. The case is unlikely to result in any liability for Trump — but it could result in a surprising victory for him.
Time and again, Trump’s critics have allowed their rage to overwhelm their reason. In federal court, Democrats have sought to score political points with filings that could undermine their long-standing political narratives. For example, Reps. Eric Swalwell (D-Calif.) and Maxine Waters (D-Calif.) have sued Trump for inciting an insurrection. Their cases could force a court to rule on whether Trump can be held legally responsible for the Jan. 6 Capitol riot and whether his words were protected speech under the First Amendment. If the lawsuits fail, as is likely, Trump could cite the dismissals as evidence that his second impeachment was a political charade detached from any legal foundation.
The Chinese American Civil Rights Coalition seeks $22.9 million, or $1 for every Asian American and Pacific Islander living in the United States. It is far from clear that the coalition can claim all Asian Americans were injured — or claim the right to speak for all of them on the issue. There also are problems with establishing an injury directly related to Trump’s rhetoric, or with seeking damages on the basis of a type of “group libel” — an extremely difficult foundation for any lawsuit.
“Chinese virus” has been widely used by various experts and commentators, including in scientific journals. Indeed, two Chinese experts referred to this as the “Wuhan virus” until they were pressured to retract their column. It was the term used by many scientists in the early stages of the pandemic, and even by some liberals; HBO’s “Real Time” host Bill Maher defended the use of the term as consistent with past scientific practices.
While it is reviled by many as racially insensitive and inflammatory, the term’s use is heavily imbued with political meaning. The Supreme Court has long protected opinion under free speech rulings. In cases like New York Times v. Sullivan, the court sought to create “breathing space” by articulating a standard that now applies to both public officials and public figures.
Moreover, as with the Swalwell lawsuit, the Chinese American coalition makes an argument directly rejected by the Supreme Court in claiming emotional distress from political rhetoric or protests. In Snyder v. Phelps, the court ruled 8-1 in favor of the odious Westboro Baptist Church members who protested at military funerals. Chief Justice John Roberts held that “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.” Thus, even offensive terms like “Kung flu” are, presumptively, protected forms of speech.
In many ways, Democrats will be fortunate if the coalition’s suit is dismissed on standing or injury grounds. Conversely, Trump should want this case to go forward to a full judgment and appeal. The biggest danger is that the lawsuit could force a ruling on underlying origins of the flu. The primary defense to defamation remains truth. Trump can argue that terms like “China virus” and “Wuhan virus” refer to the widely accepted origin of the outbreak. The use of such labels is common in science and politics; people still refer to the “London variant” and “South Africa variant” of COVID-19. Other viruses and diseases also have been associated with where they originated, like Zika or Ebola. While the “Spanish flu” may not have started in Spain, it is still the common label for that epidemic.
This lawsuit shows the impeccable timing of Trump critics in self-defeating litigation. After the filing, Dr. Fauci seemed to flip on the lab-release theory. During the Trump administration, Fauci was lionized by the media for dismissing the lab theory; in a May 2020 interview, he told National Geographic: “If you look at the evolution of the virus in bats and what’s out there now, [the scientific evidence] is very, very strongly leaning toward this could not have been artificially or deliberately manipulated … Everything about the stepwise evolution over time strongly indicates that [this virus] evolved in nature and then jumped species.”
The media and Democratic leaders went into full attack mode. The New York Times denounced figures like Sen. Tom Cotton (R-Ark,) for raising the “Fringe Theory of Coronavirus Origins,” while the Washington Post called it a “conspiracy theory that was already debunked” — or, as stated in The Daily Beast, a wingnut “conspiracy theory.” Post columnist Jennifer Rubin said anyone giving credence to the lab-origin theory was voicing the “GOP’s cultist mentality,” and denounced Cotton as being “an irrational conspiracy monger or he has contempt for voters (i.e. feeds claptrap to the people he considers rubes).”
Now, apparently, Fauci is “feeding claptrap” to “rubes,” too.
Asked if the virus’ origin presumptively was forged in nature, he said: “No, actually. I am not convinced about that. I think we should continue to investigate what went on in China until we continue to find out to the best of our ability what happened.”
Around the time of Fauci’s reversal, news reports surfaced of Chinese scientists at the Wuhan lab suffering COVID-like symptoms months before the outbreak, and even the possibility of hospitalizations of lab staff. Former Centers for Disease Control and Prevention director Robert Redfield has said publicly that he believes the virus escaped from the Chinese lab. Retired New York Times science editor Nicholas Wade has chastised his former colleagues for ignoring the obvious evidence supporting a lab theory as well as Chinese efforts to arrest scientists and destroy evidence that could establish the origin.
With this record, Trump could not ask for a more timely or flawed lawsuit. Indeed, he might call Fauci as his first witness in a trial virtually tailor-made for Trump.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.