As a matter of law, this will go nowhere. As a matter of politics, it’s Pass the Popcorn material. And as a matter of entertainment, the complaint itself is golden. With access to the next debate stage still within reach, Tulsi Gabbard announced that she has filed a defamation suit against Hillary Clinton in a New York federal court for calling her a “Russian asset” last October. At the time, Gabbard’s attorneys warned that she might sue, and the congresswoman from Hawaii finally delivered on that threat this morning.
Gabbard’s campaign released this statement shortly after filing the lawsuit:
Tulsi Gabbard, a United States Congresswoman, Army National Guard Major, and 2020 presidential candidate, today filed a defamation lawsuit against Hillary Rodham Clinton. Gabbard, a U.S. Representative for Hawaii’s 2nd congressional district, asserts in her complaint that Clinton deliberately and maliciously made false statements in an attempt to derail Rep. Gabbard’s campaign, by alleging that Gabbard is a “Russian asset.” The complaint was filed in the United States District Court for the Southern District of New York by Brian Dunne and Dan Terzian, Rep. Gabbard’s legal counsel and partners at Pierce Bainbridge Beck Price & Hecht LLP.
Clinton was the 2016 Democratic Party nominee for President of the United States, United States Secretary of State from 2009 until 2013, a United States Senator for the State of New York from 2001 to 2009, and the First Lady of the United States from 1993 to 2001. On October 17, 2019, she publicly stated in an interview that “somebody who is currently in the Democratic primary … [is a] favorite of the Russians… Yeah, she’s a Russian asset.” The press extensively republished and disseminated these statements, which were interpreted widely as Clinton asserting that Gabbard is a Russian asset.
The complaint seeks compensatory damages and an injunction prohibiting the further publication of Clinton’s defamatory statements.
That’s an interesting request, since it comes in a statement that itself republishes Hillary’s alleged slander. Regardless of whether a court finds this actionably defaming, the media will still be allowed to report on it, especially as part of their coverage of Gabbard’s lawsuit. The big publicity push for the court action this morning shows that Gabbard is counting on publications to cover this extensively.
We’ll get back to the prospects for victory in court in a moment, but the complaint is perhaps the best payback Gabbard will get — and her attorneys make the most of it. For instance, here is their description of the context for defamation:
Tulsi Gabbard is running for President of the United States, a position Clinton has long coveted, but has not been able to attain.
Fact check: True! Gabbard’s complaint then alleges that Hillary’s motive is payback for endorsing Bernie Sanders in the 2016 primary, and adds a little narrative zinger:
Clinton—a cutthroat politician by any account—has never forgotten this perceived slight. And in October 2019, she sought retribution by lying, publicly and loudly, about Tulsi Gabbard.
Fact check: true, at least as regards the “cutthroat” description. A later description of Clinton doesn’t stand up as well to scrutiny, however:
As the Democratic Party’s presidential nominee in 2016; a former Secretary of State; a former United States Senator; and the former First Lady of the United States, Clinton is widely perceived by the public as someone who would have access to information and intelligence not available to ordinary Americans, and who would therefore know if Tulsi or anyone else were a Russian asset. Not only that, but Clinton has campaigned for stopping false and misleading statements by election campaigns. She portrays herself as a neutral, third-party observer. These were not statements by someone who is well-known to speak in hyperbole.
Ahem. The author of “basket of deplorables” and “vast right-wing conspiracy” is not “someone … well-known to speak in hyperbole”? How about Hillary’s “we came, we saw, he died” description of the Obama administration’s project to turn Libya into a terror-network-dominated failed state?
While the rest of the insults dropped in like Easter eggs in this complaint are obviously for entertainment purposes, this last claim matters in the legal sense. In order to prevail in a defamation case as a public person — it doesn’t get much more public than presidential candidate — Gabbard has to establish that Hillary Clinton acted with actual malice to defame her, according to the New York Times v Sullivan precedent. This does not mean ill will or personal hatred, but instead means that Gabbard will have to prove that Hillary knew for a fact that it was a false accusation, or that she evinced “reckless disregard” for whether it was true or not.
The complaint recognizes these obstacles and attempts to get around them, chief among them “proving” Hillary’s state of mind, but Gabbard will have an uphill battle. For instance, her endorsement of talks with Russian ally Bashar al-Assad in early 2017, after inexplicably meeting with him during his war-crimes attacks on Syrian civilian centers, leaves her wide open to criticism over being at least a useful idiot for Vladimir Putin. Even outside the confines of a presidential election, courts will almost certainly find “Russian asset” a hyperbolic use in context of political criticism, not a defamation in the Sullivan sense. Gabbard is campaigning to run for the office which would control diplomatic policy (at least when a Democrat holds it), which makes Clinton’s comments relevant and specifically critical.
In theory, a court might at some time rule that a national political figure exercised actual malice in intentionally defaming a presidential candidate with hyperbolic political criticism. In practice, courts are not anxious to set themselves up as content referees in elections, and they’re not going to start with Gabbard and Clinton now. This has no chance at all of winning.
That’s not really the point, though. The next debate will take place in New Hampshire on February 7th, and Gabbard needs a lot of help to qualify for it. Launching a splashy lawsuit against Clinton Inc will get Gabbard some much-needed media attention, if only briefly. If that doesn’t put Gabbard on the ABC stage at Saint Anselm College, she’s out of plays and on her way out of the presidential race.