• Is truth a defense to libel, a defense to making a false affidavit

    From micky@21:1/5 to All on Thu Oct 20 10:56:42 2022
    A story is being circulated about a congressional candidate that he was
    having an affair and someone knew about it and blackmailed him to get
    his vote on local legislation. The only "evidence" is the word of
    someone who claims to be a blackmailer, and a video which shows from
    behind, in the dark, some unidentifiable person walkilng to a storage
    locker. The alleger "later told The Denver Post that he was comfortable admitting to blackmail because he believed the statute of limitations
    had passed and he could no longer be charged with a crime."

    To say, "Lauren Boebert hired this guy to make this false claim" would
    be slander or libel unless it could be proven and it's very hard to
    prove even if true.

    What about "I THINK Lauren Boebert hired this guy to make a false
    claim". That is a true statement, I do think so, and aiui, truth is
    always a defense to libel.


    For that matter, they keep saying that the attorney who signed an
    incorrect affidavit saying that all of trump's government papers had
    been turned over to the DOJ was in big trouble, but the statement said approximately "according to what I was told". If she's willing to say
    who told her, how can she be in trouble?

    --
    I think you can tell, but just to be sure:
    I am not a lawyer.

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  • From Stuart O. Bronstein@21:1/5 to micky on Thu Oct 20 18:57:05 2022
    micky <misc07@fmguy.com> wrote:

    A story is being circulated about a congressional candidate that
    he was having an affair and someone knew about it and blackmailed
    him to get his vote on local legislation. The only "evidence" is
    the word of someone who claims to be a blackmailer, and a video
    which shows from behind, in the dark, some unidentifiable person
    walkilng to a storage locker. The alleger "later told The Denver
    Post that he was comfortable admitting to blackmail because he
    believed the statute of limitations had passed and he could no
    longer be charged with a crime."

    Your Re line has nothing to do with the body of your post. The above
    story is about a congressional candidate - a voluntary public figure.
    While truth is normally a defense, with a public figure all you need
    is a reasonable basis to believe it's true. In other words a public
    figure can only prevail if he essentially proves that the person
    making the false claim knew he was lying.

    To say, "Lauren Boebert hired this guy to make this false claim"
    would be slander or libel unless it could be proven and it's very
    hard to prove even if true.

    Again, she's a public figure. It would be very hard for her to
    successfully sue someone for that.

    What about "I THINK Lauren Boebert hired this guy to make a false
    claim". That is a true statement, I do think so, and aiui, truth
    is always a defense to libel.

    Claiming something is your opinion when you spout defamation does not
    always remove the legal stench. If it is said in a way that conveys
    the idea that others should also have the same opinion, it may not
    work as a defense.

    For that matter, they keep saying that the attorney who signed an
    incorrect affidavit saying that all of trump's government papers
    had been turned over to the DOJ was in big trouble, but the
    statement said approximately "according to what I was told". If
    she's willing to say who told her, how can she be in trouble?

    This is a completely different matter. Attorneys have legal
    obligations that others don't. Her just saying that this was what
    she was told will not necessarily absolve her, unless she had a
    reasonable reason to believe what she was told, was true.

    --
    Stu
    http://DownToEarthLawyer.com

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  • From Elle N@21:1/5 to micky on Fri Oct 21 10:53:36 2022
    On Thursday, October 20, 2022 at 12:56:45 PM UTC-5, micky wrote:
    For that matter, they keep saying that the attorney who signed an
    incorrect affidavit saying that all of trump's government papers had
    been turned over to the DOJ was in big trouble, but the statement said approximately "according to what I was told". If she's willing to say
    who told her, how can she be in trouble?


    Per the Washington Post on October 13, "[Trump attorney Christina] Bobb signed a sworn statement to the Justice Department saying that a “diligent search was conducted” and that “any and all responsive documents accompany this certification.”
    Bobb’s statement included a caveat that this was “true and correct to the best of my knowledge” — a phrasing that she reportedly insisted upon because she was uncertain and that could insulate her legally. But the Justice Department is surely
    interested in how Bobb arrived at this conclusion. "

    What do the attorneys' Rules of Professional Conduct in Florida say here? Rule 4.3-3 "Candor Toward the Tribunal" seems to be the most relevant rule. The Rules include this comment on Rule 4.3-3:

    Representations by a lawyer
    "An advocate is responsible for pleadings and other documents
    prepared for litigation, but is usually not required to have personal
    knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client’s behalf, and not assertions by the lawyer. Compare rule 4-3.1. However, an assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when
    the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to
    make a disclosure is the equivalent of an affirmative misrepresentation.
    ... "

    See https://www-media.floridabar.org/uploads/2022/08/2022_02-AUG-RRTFB-8-1-2022.pdf

    The rules of professional conduct in any given state have the force of statute.

    Attorney Bobb's problems are, big picture, two-fold. First, was her inquiry "reasonably diligent"? Second, by signing this affidavit without perhaps being "reasonably diligent," did Bobb herself obstruct justice?

    I believe Bobb has said she signed the statement based on the assurance of other attorneys and nothing more. Is this "reasonably diligent"? If I were the judge, I'd have my clerk review the case law, which I expect would say that, no, the assurance of
    others, with nothing more, does not represent 'reasonable diligence.'

    Was this obstruction of justice? If I were on a grand jury considering whether to indict Christina Bobb, I might very well vote to indict for obstruction of justice. As a layperson, what Bobb did both cost taxpayers a lot of money and put national
    security at risk, all due to her IMO resisting/fighting/rejecting/yada and so obstructing the inquiry made by the justice department.

    On the other hand, I see also contentions that Bobb signed the statement as a custodian rather than an attorney. See https://www.theguardian.com/us-news/2022/oct/10/trump-lawyer-christina-bobb-mar-a-lago-certify-documents . In which case when Bobb signed
    the statement, she was not acting as Trump's attorney. Meaning the Rule of Professional Conduct might not apply. On the third hand, nothing supports Bobb having become the custodian of the classified and other records.

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