Dershowitz’ Lawsuit Against CNN Is Still Based On A Big Lie
You don’t need to be a lawyer to figure out that Alan Dershowitz’ $300 million lawsuit against CNN is based on a bald faced lie. Knowledge of the English language and a capacity for logical reasoning will suffice. The obvious nature of the lie strongly suggests that Trump-appointed Judge Anuraag Singhal, who ruled that the case can move forward, is either incompetent or corrupt.
Dershowitz’ claim is that some talking heads at CNN mischaracterized his legal argument in defense of Donald Trump at his first impeachment trial. He claims that the network, by leaving viewers with a false impression, damaged his reputation as one of the great legal scholars of the past 50 years.
Ordinarily, a public figure like Dershowitz can’t sue a media outlet for unfair treatment. He can’t be defamed by an opinion; he must show the statement was about a verifiable fact. And he must show CNN’s actual malice, which would be knowledge of a statement’s falsity, or a reckless disregard for its veracity.
To demonstrate malice and the factual nature of the CNN commentators’ statements, Dershowitz pointed to CNN’s omission of a specific sentence, which, he claimed, was a critical modifier of his entire argument. The big lie was that sentence actually explained something, when it’s perfectly clear that sentence was devoid of meaning.
The facts that led to impeachment: To recap what happened, Trump violated the Impoundment Control Act when he withheld funds budgeted for military aid to the Ukraine without first informing Congress. He made an offer to discontinue his illegal withholding of funds if the president of the Ukraine announced an investigation into Hunter Biden. Trump wanted to gin up a media narrative that would enhance his reelection prospects.
Not every illegal act rises to the threshold of high crimes and misdemeanors for purposes of impeachment. But the House inquiry determined from the facts and circumstances that this illegal act was a corrupt abuse of power that warranted impeachment.
Dershowitz’ argument: Dershowitz’ argument was made in response to a question posed by Sen. Ted Cruz, who asked whether a president can be impeached and removed from office if he takes any action that is motivated by a desire to be reelected. Of course, the correct answer is that it depends on whether such action is illegal, and/or whether the motivation led to a corrupt abuse of power.
Trump’s action was expressly illegal under the Impoundment Control Act, which prohibits the president from withholding disbursement of budgeted funds without first notifying Congress and identifying his legal purpose for such withholding. The essence of Trump’s proposed bargain was that it be kept secret. Under the Act the president’s motive is irrelevant. And his secret withholding of funds, used to influence the Ukraine legal system for his political gain, showed that his motivation was a corrupt abuse of power.
Dershowitz gave an answer that was disconnected from the facts before the Senate. He went off on a tangent about how a Democratic president might withhold funds from Israel or Palestine as leverage in pursuit of peace. And then he said a president’s motive in a quid pro quo could not be corrupt if he believed it was in the public interest, and since every politician believes his re-election is in the public interest, the quid pro quo could not be corrupt.
Dershowitz’ premise — that any act that enhances re-election prospects can be justified as being in the public interest — could be used to rationalize myriad abuses of power. Which is why his argument was condemned on CNN and elsewhere. Clearly, Dershowitz was strongly suggesting that Trump’s illegal actions were allowed because of his belief that re-election was in the public interest, because otherwise his answer was irrelevant in that context.
And that’s how the CNN commentators interpreted Dershowitz’ remarks. If they were mistaken, it was easy to see why they made that mistake. It might have been more accurate to say that Dershowitz’ entire answer was BS. Here’s what Paul Begala said:
I did not go to Harvard Law, but I did go to the University of Texas School of Law, where I studied criminal law and constitutional law, but never dreamed a legendary legal mind would set them both ablaze on the Senate floor. The Dershowitz Doctrine would make presidents immune from every criminal act, so long as they could plausibly claim they did it to boost their re-election effort. Campaign finance laws: out the window. Bribery statutes: gone. Extortion: no more. This is Donald Trump’s fondest figurative dream: to be able to shoot someone on Fifth Avenue and get away with it.
Justifying a bogus argument with a meaningless phrase: So how was Dershowitz able to show that the opinions of CNN commentators were false statements of fact, and that such false statements were the result of actual malice? By way of a stupid verbal trick.
Dershowitz’ entire legal case is based on CNN’s choice to ignore a single sentence from his oral argument. News outlets broadcast selective clips of public figures’ speeches every day, and sometimes the editing isn’t fair. But Dershowitz considers this omission an outrage and clear cut evidence of a deliberate intent to deceive its audience.
Here is the sentence that, according to Dershowitz, preempts any suggestion that he was excusing any illegality by Trump:
The only thing that would make a quid pro quo unlawful is that if the quo were in some way illegal.
I can’t believe I have to explain this. The words “unlawful” and “illegal” have the the exact same definition, which is why the sentence is tautological and devoid of meaning. Read it again. You can apply the “it’s-only-unlawful-if-it’s-illegal” description to anything. The only thing that would make shoplifting unlawful is if it were in some way illegal. The only thing that would make sex with a nine-year-old unlawful is if it were in some way illegal. The only thing that would make planting a bomb in Times Square unlawful is if it were in some way illegal. And on and on.
People on CNN did what everyone in media does every day; they edited out superfluous words. You don’t need to be a lawyer to figure out that Dershowitz’ sentence doesn’t frame his analysis because it explains nothing and modifies nothing.
But any lawyer who argues that those words have substantive value is either incompetent or dishonest. And that dishonesty underpins Dershowitz’ entire lawsuit and Judge Singhal’s entire ruling. They both deem the omission of that sentence as the crucial element of an otherwise nonexistent legal claim.
It would be overly kind to describe this craven publicity stunt as a frivolous lawsuit. The filing got Dershowitz a segment on Hannity and other other appearances on NewsMax to feed his malignant narcissism, which is apparent in his court filings. Maybe I’ll get lucky and Dershowitz will sue me for calling him a liar. Or maybe his attorney will sue me for calling him unethical. Truth is an absolute defense.
ADDENDA: Dershowitz’ words and the rabbit hole of his malignant narcissism
Dershowitz’ histrionics: In his complaint Dershowitz repeats the same stupid lie — that the sentence is an edifying and essential piece of his argument — over and over again like a crazy person in his court filings. A few examples:
In fact, no panel guest would have even considered embarrassing himself or herself on national television with their false conclusions had the video clip properly included the part where Professor Dershowitz unequivocally and unambiguously stated that an illegal act would prevent a quid pro quo from being lawful.
CNN’s hosts and panelists knew that the selective editing of the tape and the elimination of Professor Dershowitz’s words declaring that an illegal act would make a quid pro quo unlawful, would allow them to pretend that Professor Dershowitz had said the exact opposite of what he had argued on the Senate floor.
The decision to omit the crucial word “illegal” from Professor Dershowitz’s argument had the functional equivalency of doctoring the recording because it had the practical effect of reversing the meaning. When a network sets in motion a deliberate scheme to defraud its own audience and does so at the expense of another’s reputation.
Without question, CNN understood that allowing its viewers to hear those words spoken immediately before CNN’s selected video portion, would cause its viewers to categorically reject the conclusions of its hosts and panel guests. In fact, no panel guest would have even considered embarrassing himself or herself on national television with their false conclusions had the video clip properly included the part where Professor Dershowitz unequivocally and unambiguously stated that an illegal act would prevent a quid pro quo from being lawful. The phrase that included the word “illegal” was an essential part of his argument, and that is precisely why CNN decided to omit it. It is evident that the decision to omit the portion in question was no accident or simple negligence on the part of CNN. Immediately after Professor Dershowitz presented his argument, CNN employees, Wolf Blitzer and Jake Tapper, played the entire clip properly, so CNN knew for certain that Professor Dershowitz had prefaced his remarks with the qualifier that a quid pro quo could not include an illegal act. That portion then disappeared in subsequent programming.
Text of Dershowitz’ Argument in the Senate
For those who care, here’s the entire relevant text of Dershowitz’ argument during Trump’s impeachment:
What if a Democratic President were to be elected and Congress were to authorize much money to either Israel or the Palestinians and the Democratic President were to say to Israel “No; I am going to withhold this money unless you stop all settlement growth” or to the Palestinians “I will withhold the money Congress authorized to you unless you stop paying terrorists, and the President said “Quid pro quo. If you don’t do it, you don’t get the money. If you do it, you get the money”? There is no one in this Chamber who would regard that as in any way unlawful. The only thing that would make a quid pro quo unlawful is that if the quo were in some way illegal.
Now we talk about motive. There are three possible motives that a political figure could have. One, a motive in the public interest and the Israel argument would be in the public interest. The second is in his own political interest and the third, which hasn’t been mentioned, would be his own financial interest, his own pure financial interest, just putting money in the bank. I want to focus on the second one just for one moment. Every public official that I know believes that his election is in the public interest and, mostly you are right, your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.
By concealing a critical fact that changed everything, Dershowitz projected on to CNN the offense that he himself committed. He concealed the critical fact of Trump’s secrecy, which made the transaction illegal irrespective of his motive. So it does inexorably follow from his words that Dershowitz trying to rationalize Trump’s illegal act by saying in his mind it was for the public good.
Key passages of Judge Singhal’s silly opinion
Dershowitz contends that by omitting the phrase, “the only thing that would make a quid pro quo unlawful is if the quo were somehow illegal,” CNN presented Dershowitz’ comments in a misleading context, which enabled the commentators to (falsely) assert that Dershowitz believed a president could extract a quid pro quo for any reason, including an illegal reason, if he believed it would help his re-election. Dershowitz alleges that if the entire clip had been played, no panel guest would have been able to credibly make that statement. Thus, Dershowitz argues, CNN presented an official proceeding in a misleading manner and the fair report privilege does not apply. The Court agrees.
Statement of fact versus opinion
[Dershowitz] argues that the commentaries also contained untrue, defamatory factual comments — that Dershowitz said a President could do anything without liability (even commit crimes) if he thought it would help his reelection and was in the national public interest — that were contradicted by the full context of Dershowitz’ answer [meaning inclusion of the nonsensical sentence] to Senator Cruz’ question. The Court concludes that the commentators’ statements set forth in the Complaint were not pure opinion but instead were mixed expressions of opinion that could reasonably be construed as defamatory.
[Dershowitz] alleges that CNN intentionally omitted the statement that a quid pro quo would be unlawful if the quo were illegal in order to “fool its viewers” into believing that Dershowitz actually said that a President could commit illegal acts so long as he thought it would help his reelection and that his reelection was in the public interest. This was done, he alleges, “to falsely paint Professor Dershowitz as a constitutional scholar and intellectual who had lost his mind.” He alleges that CNN knew for certain that he had prefaced his remarks with the qualifier that a quid pro quo could not include an illegal act because it aired the entire statement earlier in the day, but that CNN knowingly omitted that portion when it played the truncated clip “time and again.” He alleges that the truncated clip was created “intentionally and deliberately with knowledge and malice to facilitate its ability to falsely claim that plaintiff said the opposite of what he actually said.” And, finally, Dershowitz alleges that commentators made their statements with knowledge or reckless disregard that they were false.
(Notice Judge Singhal’s verbal sleight of hand. He writes that the qualifier was “that a quid pro quo could not include an illegal act,” when in fact the qualifier was different. Dershowitz said the only way the quid pro quo could be unlawful was if it were illegal.)
These allegations, for purposes of surviving the Motion to Dismiss, plausibly plead a factual basis from which “actual malice” can be inferred. The Complaint alleges that CNN knew its reports were false, it explains the reasons CNN and its employees knew the reports were false, it explains the nature of the alleged falsehoods, and it alleges who made the false statements.
Again, CNN’s statements weren’t false because the words they chose to omit were nonsensical.
