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Sunday, May 28, 2017

In my opinion, my Electoral College margin was 538 votes

The President on Twitter this morning: "It is my opinion that many of the leaks coming out of the White House are fabricated lies made up by the media." And "it is very possible that those sources don't exist but are made up by fake news writers." A few commentators have suggested that these hedges signal that Trump has "lawyered up" and has someone in the White House counsel vetting his tweets.

But any lawyer knows that slapping "In my opinion" or "I believe" or similar hedges in front of verifiable assertions does not render them something other than statements of fact. It certainly would not get him out from under defamation liability (presidential immunity to one side). And it probably would not work politically to say that it was only his opinion that the leaks were fabricated when it turns out that these leaks were, in fact, coming from the WH. No good lawyer would think or advice otherwise.

If anything, this sounds like what a non-lawyer would think is enough to create a statement of opinion.

Posted by Howard Wasserman on May 28, 2017 at 11:53 AM in Howard Wasserman, Law and Politics | Permalink

Comments

Does "it is very possible" do any work? It seems much harder to prove the falsity of a statement that something is possible than to prove the falsity of a statement that something is the case. Even if you prove that x isn't the case, you haven't necessarily proved that it was not possible that x was the case. Perhaps it is simply impossible that "fake news writers" are making up their sources; of course I do think the probability that writers at the Times, Post, CNN, network news, etc. are making up their sources is less than 1%, though there have been rare cases of knowingly fictitious reporting at some of these places, e.g. Jayson Blair. But even if it could be proven that fabricated sources were not "very possible," and that Trump was reckless as to the truth of whether they were very possible, which seems a little difficult to me, it strikes me that what would preclude defamation liability for these tweets, and what *does* reflect either good lawyering or common sense on Trump's part is their incredible vagueness. Who are the "fake news writers" and the "#FakeNews media"? It's entirely unclear; he doesn't even say what stories he's referring to. And there's such a wide range of anonymously sourced stories at such a wide range of outlets that it would be almost impossible for any individual reporter to prove that she was defamed by these tweets.

Posted by: Asher Steinberg | May 28, 2017 6:06:13 PM

Stephen Glass, Janet Cooke, and let's not forget Sabrina Erdely. Go ahead and throw Jonah Lehrer in there, too.

Trump's probably full of it, but let's not act like writers at national publications making up stories (prize-winning stories at that) is the rarest thing ever.

Posted by: YesterdayIKilledAMammoth | May 28, 2017 7:05:49 PM

From my point of view, the Jedi are evil!

Posted by: Derek Tokaz | May 29, 2017 9:32:52 AM

Your theory is that Trump is hedging his speech in these tweets, because he has some thought process that this is how he will avoid being successfully sued for defamation by unnamed reporters from (perhaps) major newspapers?

Um.

Posted by: Sam | May 29, 2017 11:40:14 AM

Derek, personally, I kind of think that that's where the new movie is going. Maybe not 'evil' per se, but malignant. I think that'd make a really interesting movie.

Posted by: YesterdayIKilledAMammoth | May 29, 2017 11:51:52 AM

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