Probably a Bad Idea for Kavanaugh to Sue

Supreme Court Justice Brett Kavanaugh has strenuously denied allegations of sexual assault. But should he sue, as President Donald Trump suggested? That’s probably a bad idea. Professor Eugene Volokh, a First Amendment expert at UCLA, told Law&Crime that it’s rarely in the interest of office holders to sue for libel because the legal standard to prove defamation is high, and the lawsuit will keep the allegation in the public eye.

A New York Times article published Saturday reported that before Kavanaugh’s confirmation vote, FBI agents apparently didn’t fully investigate an allegation the justice thrust his penis at schoolmate Deborah Ramirez when they were both students at Yale. They discussed another allegation in which then-classmate Max Stier told the FBI that he saw Kavanaugh pants down at another drunken party. He reportedly said he witnessed Kavanaugh’s friends push the future justice’s penis into the hand of a female student.

The report reignited the contentious debate over Kavanaugh’s confirmation to the Supreme Court. Of course the president was going to weigh in.

Brett Kavanaugh should start suing people for libel, or the Justice Department should come to his rescue. The lies being told about him are unbelievable. False Accusations without recrimination. When does it stop? They are trying to influence his opinions. Can’t let that happen! — Donald J. Trump (@realDonaldTrump) September 15, 2019

Volokh said he didn’t know what Trump was referring to. The Department of Justice has no role in libel cases, he said.

The professor had more to say about a hypothetical lawsuit in which Kavanaugh sued for defamation. He argued the case would likely be a “loser.” There’s a high bar meet for libel: that the defendant had knowledge that the statement is false, or likely false.

There’s there’s the optics of the matter. While the Kavanaugh story is once again at the top of the news cycle, this won’t always be the case.

“This too shall pass as all news stories do, ” Volokh said.

He said that a libel lawsuit will continue to attract attention to the allegations against Kavanaugh.

Frigidevil on September 16th, 2019 at 16:02 UTC »

Holy projection batman!

Take a look at trump's tweet in defense of Kavanaugh

Brett Kavanaugh should start suing people for libel, or the Justice Department should come to his rescue. The lies being told about him are unbelievable. False Accusations without recrimination. When does it stop? They are trying to influence his opinions. Can’t let that happen!

Now I'm pretty stupid when it comes to legalese, so I've never heard of recrimination. I looked it up, and surprise surprise, it has absolutely nothing to do with Kavanaugh's cases. It's also one of the shortest wiki pages I've ever seen and boy does it just scream trump.

In law, recrimination is a defense in an action for divorce in which the accused party makes a similar accusation against the plaintiff. To put it simply, it is the defense of "you, too."

Recrimination was generally considered by family law experts to be one of the most dysfunctional and illogical aspects of the old fault-based divorce system in common law countries. For example, in the context of a marriage where the marital relationship has collapsed to the point that both spouses are openly committing adultery, the assertion by either spouse of this defense would prevent a divorce even though the family unit is clearly no longer capable of functioning.

As a result, the defense was formally abolished by statute in many jurisdictions when they converted to a no-fault divorce regime.

New York law is one of very few jurisdictions that retain this defense.

The corollary principle of comparative rectitude ameliorated the effects of the recrimination doctrine by holding that if the offenses were of entirely different orders of seriousness, the spouse guilty of the lesser fault was still entitled to relief.

https://en.wikipedia.org/wiki/Recrimination

The only logical conclusion I can draw from this is trump thinks Kavanaugh should sue, because while he may have sexually assaulted Ford and other accusers, they dragged his name through the mud so they're at fault too!

Also an outdated and widely panned New York specific divorce law is the most trumpian thing I've ever heard. He's trying to flex how smart his is by showing the world how dumb he is and fucked up his marriages are.

dagoon79 on September 16th, 2019 at 14:22 UTC »

Please do it, let's open up that can of worms and see what we get.

zerobass on September 16th, 2019 at 14:08 UTC »

Why do you think Trump never sues those who make allegations against him? Discovery opens the door to investigation, and truth is an absolute defense to any defamation claim.

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EDIT: daaaang, this comment has been up for over 4 hours but then I got 10+ comments 17-22 minutes ago trying to say that, because Volokh said one thing, any other reason can't be true (which is false) and that "since the FBI investigated, no one could possibly ever find any other relevant information in a civil suit" (despite today's top headline basically being "the FBI didn't investigate a fucking thing"). Nice teamwork, assholes, but please fuck right off. Just to tempt those bots, just a reminder:

Kavanaugh's calendar had an entry for July 1 to "Go to Timmy's for 'skis". That matched the weekday pre-party alluded to by Blasey-Ford. The number of people present was roughly similar to Blasey-Ford's recall and the location exactly matched it. InsideEdition went to a house with the same floorplan as the house in question and it exactly matched the interior spaces described by Blasey-Ford.

Second EDIT: This has traction so I'm going to use it to draw attention to a misinformation campaign surrounding Blasey-Ford's lawyer. People were saying that because her lawyer pursued the case for "political reasons," her client has no credibility. That makes zero fucking sense.

To the extent they're saying it was 'politically motivated': people claimed she brought forward her claim to keep Kavanaugh from being a SCOTUS Justice because OF COURSE SHE DID. That isn't political -- that's moral and practical. If the person who tried to rape you has no social power whatsoever, there isn't as much reason to bring it forward. If he's going to be one of nine people on the planet that can interpret the US Constitution in a nationwide, binding manner, and you know hes a lying attempted-rapist, of course you want people to know about that.

Allow me to clarify: It does not matter one iota what her lawyer's motivation was in bringing the claim, it matters how credible the victim's claim is. For example, almost all litigation regarding novel constitutional issues in this country is brought by organizations who are seeking to get a SCOTUS ruling in the manner that helps their mission; that doesn't mean no one is ever really a victim or a victimizer.

Third EDIT: General information about how full of shit Kavanaugh is.