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Wednesday, August 11, 2004

Impermeable to the facts: Kenneth Baer's article "Frontal Assault" in The New Republic Online

Sometimes when I'm casting around, looking for a paradigmatic example from the political left, the fates will hand me someone like Kenneth Baer to illustrate in one fell swoop how the Dems so often come up so badly wrong on matters political, legal, and factual.  This is as fine a specimen of impermeability to the facts — with the inevitable political and legal misjudgments that follow — as I could ever dream up.

Mr. Baer says a defamation
case can and should be made

Writing today in The New Republic Online, former Gore speechwriter and Democratic consultant Baer weighs in on the Kerry vs. SwiftVets controversy in a new article today that's aptly entitled "Frontal Assault."  In it, he argues that in response to the SwiftVets' video and the upcoming publication of John O'Neill's book Unfit for Command,

the Kerry campaign should do the political equivalent of steering a swift boat into enemy fire: sue SBVT for libel.

Now, any political consultant worth his retainer would say that for any candidate — much less a presidential candidate with a trial lawyer running-mate — to sue his opponents is political suicide. Doing so would magnify the impact of the charges made in the ads, which as of now are only playing in seven small media markets, and keep them in the news for the duration of the campaign. It would also derail the campaign from its message, underscore the litigious history of his vice presidential pick, and open the candidate up to a possibly invasive subpoena.

All of this might happen, and are serious risks to consider. But the Kerry campaign — and a potential Kerry presidency — may not be able to afford to keep silent and allow the right to practice this kind of character assassination with impunity.

Baer argues that the risks of a defamation lawsuit are justified here because "[i]f Kerry does not pull these right-wing weeds now, they may choke his candidacy — and overrun his presidency."  And with remarkable candor, he concedes the purpose that such a lawsuit might serve (emphasis added):

Discovery procedures could lift the curtain of anonymity on those funding these ads, potentially compelling them to disclose their financial and political interests and connections. In addition, a lawsuit will have an equally chilling effect on the political consultants who make these ads. Even the largest political ad-makers can't afford costly litigation; from a financial perspective, getting involved with groups like SBVT would be too big a risk no matter a consultant's politics.

Even though, Mr. Baer, you have "eyes mercifully saved from law school," you've almost correctly (with some bracketed changes made by me) described the key 1964 US Supreme Court decision, New York Times Co. v. Sullivan, which requires that "to prove [defamation,] a public figure must show that what was written or said about him was false and that those who said it had 'actual malice'; that is, that [the defendant] knew it was false [or] had reckless disregard for [the truth or falsity] of that [factual assertion]."  Modern American defamation law does indeed draw a sharp distinction between statements of opinion and fact — opinion being simply non-actionable — and it creates an especially high bar for public-figure plaintiffs.

So let's start with the supposed "facts" that lead Mr. Baer to conclude that "it appears that Kerry would have a fairly strong case" — in the process of which we must first test Mr. Baer's characterization of them as being matters of fact rather than of opinion, then test the truth or falsity of genuinely factual matters, and only then assess whether any false statements of fact might be able to hurdle the bar of New York Times v. Sullivan.

Mr. Baer misses the distinctions between fact and
opinion, and between opinions on different topics

Immediately after discussing the Sullivan standard, Mr. Baer writes:

At this point, we only can assume that the SBVT knew what it was saying was false: One member of the group has already called his participation in the ad a "terrible mistake;" that same veteran and another one in the ad actually defended Kerry from similar charges in his 1996 Senate race; another gave Kerry exemplary ratings as an officer; and none of them have ever initiated official proceedings to challenge the Navy's decision to award Kerry these medals.

Congratulations, Mr. Baer.  In less than a paragraph, you've demonstrated not only that you have a poor grasp of what's already been reported widely about these matters, but that you utterly fail to understand either the difference between fact and opinion, or the crucial legal and logical concepts of relevance.

Talk about waving a red flag: "[W]e can only assume that the SBVT knew what it was saying was false."  Mr. Baer, when we lawyers ply our profession in court — unlike your own professions as a speechwriter, consultant, or journalist — we're bound by canons of ethics and both procedural and substantive rules of law.  If we file a defamation case in which "we have only assumed" that the defendant "knew what it was saying was false," we've violated the rules that require us to have a reasonable and objective basis from which to believe that the claims we're asserting are well founded.  Stated another way, filing a defamation suit in which I have "only assume[d] that [the defendant] knew what it was saying was false" will very likely get my pleadings stricken and the lawsuit promptly dismissed, and it may also very likely get me fined and sanctioned, with a possible risk of losing my law license.  As much as some of us lawyers enjoy being pretend journalists when we blog, Mr. Baer, most of us prefer to keep open the possibility of continuing to practice law.

I've already written three separate posts about Captain Elliott's "terrible mistake," Mr. Baer, and I commend them to you as a demonstration for why Captain Elliott's phrases, almost certainly wrenched out of context by Boston Globe reporter Mike Kranish to produce a sensational "retraction" story, do not in fact undercut any of the factual claims that Captain Elliott has made as part of the SwiftVets' efforts.  The bottom line, sir, is that the so-called "retraction" — when handled in the way courts and lawyers actually deal with such evidence — is unlikely even to be persuasive impeachment of Captain Elliott's factual claims regarding the state of information that was available to him when he recommended approval of Lt. Kerry's Silver Star nomination.  The notion that his "retraction" could prove in court that his own or any other of the SwiftVets' factual assertions were false — much less that they were made with actual malice — is simply hilarious.

Likewise, the statements made by George Elliott and Adrian Lonsdale in connection with Sen. Kerry's 1996 re-election campaign — when, ironically, they appeared to defend John Kerry against the same sorts of charges that Kerry himself had leveled against his fellow veterans as an antiwar activist — were extremely broad and general assertions of opinions, along the lines of, "The successes we had were due to our officers' bravery, and Kerry was no exception."  Statements as to whether someone is "brave" or "honorable" or "truthful" — just like statements to the contrary — are classic examples of statements of opinion.  Neither these gentlemen's 1996 statements, nor any conflicting ones made by them as part of the SwiftVets' ad, are going to be the basis for anyone's defamation lawsuit — period, end of paragraph, please turn out the lights as you exit the courtroom. 

I will grant that the 1996 statements can be argued — in a political debate — to be inconsistent with the opinions presently expressed by the SwiftVets.  But even in a political debate, one has to ask — opinions on what?  Is it inconsistent to simultaneously hold an opinion that John Kerry wasn't a war criminal, but that he's unfit to be Commander-in-Chief?  In 1996, these men weren't even endorsing Kerry's fitness to be re-elected as a United States Senator; rather, they were extending to him the loyalty that he himself had refused to show to them or his fellow veterans when they were being blasted (including by Kerry) as active conspirators in war crimes and baby-killings. 

Likewise, that some of the SwiftVets may have given Kerry good ratings in official reports was, at best, an expression by them of an opinion regarding his subjective qualities that may arguably be different from the opinions they're expressing today regarding his subjective qualities.  As a matter of law, the opinions today can't qualify as legal defamation, nor can inconsistent opinions from yesterday make them so.  And again, even in the purely political arena, one has to ask other important questions to evaluate the supposed inconsistencies.  Has (as in the case of George Elliott, for example) new factual information become available to the speaker that he lacked when he gave his previous opinion?  If so, the prior statement of opinion is not even good impeachment for the current, very different one.

As for not "initiat[ing] official proceedings to challenge the Navy's decision to award Kerry these medals":  please, this is too silly to waste much of my bandwidth on.  The SwiftVets aren't trying to strip Kerry of his medals now.  They do want to raise arguments in the political arena, however, to dispute Kerry's claims that those medals help establish his fitness to be elected President.  It's hugely funny to watch Kerry's allies try to smear John O'Neill as a "career Kerry hater" for speaking out in opposition to his antiwar spiel in 1972, while simultaneously faulting other SwiftVets for waiting until Kerry is on the cusp of the Presidency for doing so.

Mr. Baer repeats the "Carreon signature" fallacy but
fails to shake Dr. Letson's evidence about treating Kerry

So we come now to what Mr. Baer considers his best evidence:

More critical to going forward with a case, from what we know about the two central factual claims made in the ad, we can say more definitively that they are false.

First, Medical Officer Lewis [sic] Letson states that: "I know John Kerry is lying about his first Purple Heart because I treated him for that injury." Letson offers no proof for his assertion, just details about the dates and places surrounding the injury that are readily available. More damning is that according to official Navy records, Kerry was treated by another medical officer; Letson was not the medical professional who signed Kerry's "sick call sheet."

Again, Mr. Baer makes the nonlawyer's mistake of failing to distinguish between fact and opinion.  "I know John Kerry is lying about his first Purple Heart" is, by definition, a statement of opinion.  It's Dr. Letson's opinion about what was, or is, inside Kerry's head, and such a statement can't be anything other than an opinion.  Maybe it's a well-founded and persuasive opinion, or maybe — depending on matters of objective fact from which one draws such inferences — it isn't.  But it can't be a basis for a defamation claim — ever.  The lawyer who tried to make it such would end up asking Dr. Letson to treat the contusions on his backside from the courthouse door swinging closed behind him.

The next phrase, "I treated him for that injury," by contrast is indeed a statement of fact.  Can it be defamation?  Well, no — by itself, it does nothing to injure Kerry's reputation.  Elsewhere than in the SwiftVets' video, however, Dr. Letson has offered considerable other assertions of objective fact — about the nature of the wound, about the characteristics of the fragment he removed from Kerry's arm, and about what both Kerry and the others who accompanied him said, as part of the taking of Kerry's medical history for this injury, about how it was inflicted.  (The last, though second-hand descriptions and arguably hearsay, have independent legal significance that would make them admissible into evidence for at least some purposes.)  So let's cut Mr. Baer some slack here, and assume for the present that Dr. Letson's statements on factual matters could, arguably, be defamatory — a stretch, but one worth indulging in for the moment so that we can get along to the heart of Dr. Letson's claimed falsehood.

So did Dr. Louis Letson treat Kerry or not?  What's Mr. Baer's "definitive" proof that Dr. Letson didn't?  "Letson offers no proof for his assertion, just details about the dates and places surrounding the injury that are readily available."  Well, here's a news flash, Mr. Baer:  Both in courtrooms and in the political arena, a sworn, first-hand assertion — what both lawyers and lay people call "eye witness" testimony — is indeed considered "proof."  In fact, the conventional wisdom is that it's the best type of proof.  And indeed, in addition to his first-hand recollection, Dr. Letson has offered corroborating details — evidence that is consistent with, and therefore supports the credibility of, his first-hand recollection.

Like any other witness' first-hand recollections, Dr. Letson's could be subject to impeachment by surrounding circumstances.  One of these "damning" details, argues Mr. Baer, is that "according to official Navy records, Kerry was treated by another medical officer; Letson was not the medical professional who signed Kerry's 'sick call sheet.'"  I apologize, for I'm about to lapse into technical legal jargon here.  My considered professional reaction to this argument as a practicing courtroom lawyer for the last 24 years — and I will spare you the Latin version, at least — is this:  Duh!

Mr. Baer, when is the last time you had a medical problem that was only treated by one professional, with no support staff?  Only a moron would suggest that the existence of one person's signature on a medical record negates the possibility that any others were involved — even more directly involved — in the treatment that was given.

How does Dr. Letson respond, when confronted with this "damning" proof that he's lied?  From Jim Geraghty's "The Kerry Spot" on National Review Online, we get this quote from Dr. Letson (some bracketed portions inserted by Geraghty, some by me):

"I am the doctor [who treated Kerry]," he said. "Let me explain that. My critics are pointing to the [signature on the medical record], J.C. Carreon. If they look [at] it carefully [they'll see] a scribble after the words, saying, "HM1." HM1 is a hospital man first class. Jesus C. Carreon was one of my medics at that naval base. He was a top-notch fella. Real prince of a fella."

"Unfortunately, my friend Carreon died about 1992. He’s not around to back this up," he said.

"Kerry might have thought my name was J.C. Carreon. I was the only medical officer at that base. September 68 to Sept. 1969. I can verify that with [my] commanding officer."

Dr. Letson's assertions of fact about his treatment of Kerry aren't new.  They were reported in detail, for example, by that right-wing rag The Los Angeles Times as early as May 5th, and the Kerry partisans were already making the "Carreon signature" argument back then.  It is genuinely pathetic to see someone like Mr. Baer — and countless other Kerry partisans — still repeating that sputtering non-refutation today!  This particular old dog won't hunt, but it just won't seem to die, either.  For pete's sake — in the sacred name of Old Yeller! — won't someone please put it out of its misery?

In a defamation case — as in the political arena — if you want to prove that Dr. Letson's eyewitness testimony is false, it's your obligation to bring forth the contrary evidence.  Have the Kerry Campaign or its allies produced an affidavit from a controverting eye-witness?  Have they produced documents to show that Dr. Letson was not, in fact, the base medical officer at Cam Ranh Bay in December 1968?   Have they produced a prior inconsistent statement by Dr. Letson?

Nuh-uh.  Nope.  Nada.  Squat.  Bupkiss.  (Those are also technical legal terms, but I think their meaning is understandable from the context.)  More than three months after Dr. Letson went public, instead, we still have Kerry flacks saying, "But look at the signature!"  Indeed, yesterday's ballyhooed report by the Annenberg Foundation's supposedly nonpartisan FactCheck.org again repeats the "Carreon signature" fallacy as if it's a big "Gotcha!" — instead of just a big joke.

Mr. Baer can't find a defamatory
factual assertion from Van O'Dell

Back to Mr. Baer and the second "definitively false" factual claim from the SwiftVets ad:

Second, Gunner's Mate Van O'Dell says that: "John Kerry lied to get his Bronze Star. I know, I was there, I saw what happened." O'Dell did not serve on Kerry's boat, but was on another boat in his division. O'Dell claims to have witnessed the entire incident in which Kerry won his Bronze Star. Yet, his account does not show up in any official Naval documents — from the spot reports filed immediately after the incident that detail damage to two boats, including Kerry's, and Kerry's injury report to the eyewitness accounts of Jim Rassman, the man who Kerry pulled out of the river. Either O'Dell is right, and Rassman, Kerry, and the US Navy are wrong — or O'Dell has a big legal problem on his hands.

Again, a statement that someone else "lied" is a statement of opinion as to someone else's state of mind.  Nothing here can possibly be a basis for a defamation claim.  By contrast, Mr. O'Dell's sworn affidavit and other public statements are indeed full of factual assertions.  But which of them are the crucial ones that Mr. Baer believes to be false?

That O'Dell wasn't on Kerry's own boat is absolutely irrelevant.  The issue is whether he had the opportunity to observe the facts he's recounting — and there is no dispute, in fact, that O'Dell was there, on the scene.  Much of what O'Dell has testified to — for example, that he personally was there aboard another boat, and that Swift Boat PCF 3 hit a mine, throwing two of its crewmen into the water, who were rescued by other Swift Boats — isn't disputed by anyone.  No one disputes that Kerry did, in fact, pluck Rassman from the water.

And indeed, although Mr. Baer refers to O'Dell's "account," we simply have no clue what Mr. Baer thinks were the factual assertions, as recounted by O'Dell, that were false.  Again, Mr. Baer, any lawyer who wants to avoid a prompt dismissal with sanctions will tell you that when you file a defamation case, you have to be very specific about the factual assertions that you claim were defamatory.

I could guess what specific factual assertions Mr. Baer had in mind as being "false and defamatory."  There is indeed some conflict among the various witnesses' accounts — Mr. Rassman, for example, can't seem to tell a straight story about whose boat he'd been on before he went into the water, and there's some dispute over whether there was a second mine.  There's certainly a dispute over whether there was or was not enemy fire coming from one or both shores — and to me, this seems to be the most interesting dispute for purposes of making a subjective judgment call as to whether Lt. Kerry's actions in plucking out Mr. Rassman were significantly more heroic than his actions some years later in rescuing Licorice the Unlucky Hamster.

But if there's a defamation case to be made — or even a political argument to be made that O'Dell or any of the other SwiftVets have made false statements of fact — the proponents of that argument have to point to the specific factual assertions, and then produce more credible evidence to show that those factual assertions were false.  And then you have to show malice.  With due respect, Mr. Baer, you not only aren't even to third base yet, you're still struggling to find the entrance to the ball park.

Conclusion:  Mr. Baer, I wish Sen. Kerry would
"bring it on!" in court — but he can't and won't

I've written recently that the prospect of Kerry filing a defamation lawsuit — either against the SwiftVets, individually or collectively, or their publisher, or media outlets who broadcast their video as a paid political advertisement by a 527 organization — might have been much welcomed by the potential defendants as part of a "tar baby" strategy.  I have no doubt that John O'Neill and his fellow SwiftVets would love nothing better than to submit their assertions, both of fact and opinion, to the microscopic scrutiny of public court proceedings — and better still, to submit the Kerry camp's counterspin to that same scrutiny in a place where a judge will enforce the rules of evidence and hatchet jobs like that done to Captain Elliott tend to blow up in the hatchet wielder's face.

"[L]ies are different [than inflammatory opinions]," concludes Mr. Baer, "and those that tell them with the intent to distort our politics should be held accountable."  On this much we can agree, Mr. Baer.  The calling to account here, however, will likely be in a political arena.  Trust me on this, Mr. Baer — your man will be in far better shape even on that spongy ground than he ever would be in a courtroom.

Posted by Beldar at 07:10 PM in Law (2006 & earlier), Politics (2006 & earlier), SwiftVets | Permalink


Other weblog posts, if any, whose authors have linked to Impermeable to the facts: Kenneth Baer's article "Frontal Assault" in The New Republic Online and sent a trackback ping are listed here:

» A Quick "Kerry v. Vets" Comment from A Stitch in Haste

Tracked on Aug 11, 2004 8:14:32 PM

» Sue Swiftvets For Libel? from Ryne McClaren: A Weblog

Tracked on Aug 11, 2004 8:49:07 PM

» Law Speak and Defamation from Chapomatic

Tracked on Aug 11, 2004 8:59:51 PM

» Smackdown! from Right on the Left Beach

Tracked on Aug 11, 2004 9:23:17 PM

» Just the Facts, Ma'am from The Sundries Shack

Tracked on Aug 12, 2004 9:04:31 AM


(1) Patrick R. Sullivan made the following comment | Aug 11, 2004 7:35:12 PM | Permalink

This gets more interesting all the time. From John Kerry on the Senate floor, Jan. 28, 1998:

Mr. KERRY. Mr. President, I ask unanimous consent to have printed in the Record the text of the eulogy I gave for my friend, Thomas M. Belodeau, on November 10, 1997.

There was the time we were carrying Special Forces up a river and a mine exploded under our boat sending it 2 feet into the air. We were receiving incoming rocket and small arms fire and Tommy was returning fire with his M-60 machine gun when it literally broke apart in his hands. He was left holding the pieces unable to fire back while one of the Green Berets walked along the edge of the boat to get Tommy another M-60. As he was doing so, the boat made a high speed turn to starboard and the Green Beret kept going--straight into the river. The entire time while the boat went back to get the Green Beret, Tommy was without a machine gun or a weapon of any kind, but all the time he was hurling the greatest single string of Lowell-Chelmsford curses ever heard at the Viet Cong. He literally had swear words with tracers on them!

(2) Jerseylaw made the following comment | Aug 11, 2004 8:08:16 PM | Permalink

Thanks, Beldar (French, right?). I love when other folks show why "lawyer tricks" are actually -- well, they're actually a rational and highly fair way to deal with disputes of fact. Oyez, oyez!

(3) Anarchus made the following comment | Aug 11, 2004 8:24:27 PM | Permalink

Nice analysis.

There's no way on earth that Kerry could ever sue, because then 100% of his medical records would end up in the public domain - and the medical record of this event would most likely show rice grains being removed from his buttocks, a treatment which could not possibly have resulted from his Swift Boat hitting a mine in the river as he claims.

(4) MeTooThen made the following comment | Aug 11, 2004 9:00:11 PM | Permalink


Last evening on Sean Hannity's radio program, John O'Neill was asked by the host (and I will paraphrase here) if he "feared being sued for libel by John Forbes Kerry."

Mr. O'Neill's response (and again, I will paraphrase) was that he "hoped" or was it "wished" he would be sued by Mr. Kerry. Mr. O'Neill went on to say that he looked forward to being deposed "under oath" (these are not scare quotes, these are quote quotes) and more so looked forward to deposing Mr. Kerry himself.

Strange then, to read Mr. Baer's article and its suggestion that Mr. O'Neill and his fellow SwiftVets better be careful or else.

On the contrary, it appears that the SwiftVets would like nothing more than to be sued, and as you suggest, challenge the veracity of John Forbes Kerry's claim under oath and within the rules of a civil proceeding.

Just don't bet on it ever happening. The Democrats will yield their influence and rely on the support of the MSM to attack the SwiftVets until the Kerry Campaign can figure out how to flip-flop this or spin it into oblivion. No doubt they will be successful.

Pity, this.

(5) JohnM made the following comment | Aug 11, 2004 9:05:56 PM | Permalink

Great read. Of course Kerry won't sue, just for the reasons you state. Fact I think his strategy is to try and ride it out by ignoring it. Neither his campaign or his surrogates have been very vocal in trying to pop the SWITFvets balloon directly.

(6) JustSomeGuy made the following comment | Aug 11, 2004 9:25:21 PM | Permalink

Came here via Instapundit...

Nicely done, but you should tone it down. Too many lawyers think they're the smart ones and everyone else is stupid. You're over the top in that regard.

Your concept of the difference between fact and opinion is especially blinkered. You say, 'Again, Mr. Baer makes the nonlawyer's mistake of failing to distinguish between fact and opinion. "I know John Kerry is lying about his first Purple Heart" is, by definition, a statement of opinion.'

Uh, no. It's a statement of fact, albeit an untestable one. Not an opinion. Did Kerry lie? Psychological/metaphysical arguments aside, the truth is out there, somewhere. He did, or he didn't. This fellow says he "knows" Kerry lied. That begs the question: how does he know? did he hear Kerry say otherwise? did he hear Kerry say he had lied? You say that the very unprovability of such statements demonstrates their status as opinion. Hogwash. A lie is a lie, and a fact-- just not a very testable one. That's why perjury is a crime and libel is actionable.

Your article is great for the most part, and I find Kerry's campaign's actions here reprehensible. And Baer is obviously either an idiot or a grand-stander on this issue, since, as you show, such a case would be laughed out of court.

But you hurt your arguments with your lawyerly extremism. You've exposed Baer; leave it at that and don't try to tell the world of non-lawyers that they're all stupid, too.

(7) Beldar made the following comment | Aug 11, 2004 9:34:01 PM | Permalink

JustSomeGuy — thanks for the comment. I can't help bringing my legal viewpoint into my everyday life, much less what I write here, but if I seemed patronizing to you or any other nonlawyer readers, I apologize for that. I emphatically believe that nonlawyers — voters — can fully understand all of this and, to the extent they deem it relevant, make well-reasoned and well-informed decisions for themselves when it's time to cast their ballots.

(8) Beldar made the following comment | Aug 11, 2004 9:55:39 PM | Permalink

One more comment, JustSome, regarding whether calling someone a "liar" can be defamatory. Here's a quote from the first relevant case I happened upon — as it happens, a Texas state-court case, but one dealing with the Sullivan/public figure principles from federal constitutional law:

This evidence, to which appellants did not object, clearly shows appellants "thrust" themselves into the "vortex" of the public issue involving aeromedical safety and engaged the public's attention in an attempt to influence its outcome.

Under the principles of Waldbaum and Time, Inc., the references to appellants as incompetent, troublemakers, and liars are assertions of pure opinion. These terms of derision, considered in context and in light of the EMS debate are not capable of proof one way or the other. Therefore, as to each of these statements, the absolute constitutional privilege applies. See Waldbaum, 627 F.2d at 1296; Time, Inc., 424 U.S. at 454-55, 96 S.Ct. at 965-66 (1976).

Einhorn v. LaChance, 823 S.W.2d 405, 412 (Tex. App. — Houston [1st Dist.] 1992, writ dism'd w.o.j.) (affirming summary judgment by trial court dismissing such claims). I agree with you that perjury law leads us into altogether different fields, but that's one thing of which Sen. Kerry hasn't yet been accused, and I'd rather not get into all that just now if you don't mind.

(9) J. J. O'Malley made the following comment | Aug 11, 2004 10:35:42 PM | Permalink

Mr. Beldar, the last lawyer I knew of who could handle words like you was named Joseph P. Welch.

And as a complete layman, by the way, I found nothing in either what you said or the way you said it to be denigrating to my intelligence. I appreciated your explanations and clarifications of the various legal points.

(10) J Murphy made the following comment | Aug 11, 2004 10:36:05 PM | Permalink

I don't think your approach was patronizing; what came through to me was passion. Baer was pontificating on a subject on which he knows nothing, in an attempt to further the smearing of the Swift Boat Vets. In my opinion, passion is understandable, if not mandatory.

I very much appreciate the work you have done to document the issues. My biggest frustration on the recent TV coverage (FOX and MSNBC) is that the discussions are essentially fact free. I just had the misfortune of watching Lanny Davis being interviewed on MSNBC. Mr. Davis was very aggressive, nearly yelling that O'Neill is a serial liar. When asked for examples, he claimed to have hundreds of examples, but agreed to give two. His "best examples" were 1)the strawman about you can't believe anyone who was not on Kerry's boat (like other eyewitnesses don't count) and 2)that O'Neill never served with Kerry (of course, O'Neill never made such a claim, but Davis' innuendo was that O'Neill had).

The feebleness of the arguments considered "best" by Kerry's defenders, combined with the volume in which they were delivered, and the fact that their first instinct was to "lawyer up" to gag the vets, makes me believe the Swift Boats Vets even more.

(11) Michael Levy made the following comment | Aug 11, 2004 11:07:53 PM | Permalink

How much information could the Swift Vets get from Kerry through the discovery process if he were to sue them?

(12) J_Crater made the following comment | Aug 11, 2004 11:35:29 PM | Permalink

It's a damn good thing that Kerry's Swift boat doesn't run on sails, as you sucked the wind out of Mr. Baer's case.

(13) JustSomeGuy made the following comment | Aug 11, 2004 11:38:19 PM | Permalink

Beldar, you slay us all with your openness to argument. That's certainly a lawyerly trait that non-lawyers should learn. Thanks for your come-backs and new points.

(14) Beldar made the following comment | Aug 11, 2004 11:45:32 PM | Permalink

Michael Levy asked,

How much information could the Swift Vets get from Kerry through the discovery process if he were to sue them?

It's hard to say (not that that'll stop me from trying). In both the state and federal court systems, trial judges have a huge amount of discretion to enter such orders governing the timing and scope of pretrial discovery as they think are fit, given the unique circumstances of each case. One advantage that Kerry might have in such a lawsuit would be to choose a forum that his lawyers think would result in a sympathetic judge.

But assuming a fair-minded judge, as a practical and tactical matter, it's awfully hard for a plaintiff to file a lawsuit and then to resist responding to even very wide-ranging discovery requests propounded by the defendant. Once you've invoked the law to be your avenging sword, it's considerably harder to use it as your shield too. And the general standard for what's "discoverable" is defined, and generally interpreted, very broadly indeed: parties generally have to respond to discovery requests that are "reasonably calculated to lead to the discovery of admissible evidence."

Ironically, defendants often have a better position from which to argue for restrictions on discovery. "Judge, we shouldn't have to spend thousands of hours and tens of thousands of dollars responding to all this discovery," defendants may and often do argue, "until after you've ruled on our motion to dismiss these claims based on the face of the pleadings." But here, of course, the SwiftVets would be unlikely to argue for a stay of, or limitation on, pretrial discovery. I presume that they'd gladly put up with the expense and inconvenience of responding to any discovery requests the Kerry team could throw their way, so long as they got to respond in kind with discovery requests directed to him — and to nonparties, who can be compelled to produce documents and give sworn testimony via the subpoena process.

(15) Fred Jacobsen (San Fran) made the following comment | Aug 12, 2004 12:13:29 AM | Permalink

I have tried cases for several decades. Reading Mr. Baer's article, I am shocked at how lucky I have been to appear before dozens of incompetent judges who admitted into evidence my proferred eyewitness testimony. Whew. I hope future judges don't catch onto Baer's rules of evidence.

I thought Lanny Davis did the public a real disservice in defending Clinton with his media mantra that the evidence against Clinton was "just" circumstantial. When I was a federal prosecutor, a standard jury instruction was that circumstantial evidence was just as valid as direct evidence. Thus Davis misled prospective jurors watching his rants. Now, apparently, Davis thinks direct eyewitness evidence is untrustworthy. Can't win.

Someone should get Kenneth Baer a copy of Leon Uris' "QB VII" before he sets off on a libel action.

(16) Winston made the following comment | Aug 12, 2004 12:15:04 AM | Permalink

Thanks for reasons and logic. In looking at the issues brought up by the SwiftVets, I appreciate the facts, and not counter-accusations. I agree, in reading this I did not feel patronized or demeaned, but it shed great light on the legal side of the issue, a side that hasn't been looked at in depth yet in my reading.

(17) lyle made the following comment | Aug 12, 2004 12:29:08 AM | Permalink

It seems to me that John O'Neill has strategized this case as if preparing for a courtroom.

He rounded up a majority of Kerry's fellow Swift Boat officers and crewmen, and all of Kerry's superior officers. He organized them into a self-supporting group with a coherent message, a unified front, and a convenient website. He took sworn statements from every man who witnessed Lieutenant Kerry in action. He researched Kerry's public statements over the course of decades, and has mapped out where Kerry was, and with whom, at every key moment in those crucial 4 months in Vietnam.

O'Neill has written his brief against Kerry in book form, and it is already a bestseller. The book tour is just beginning. Before it's done, every interested voter will know the questions that the Swift Vets have for John Kerry. They will expect Kerry to release his military records and take the stand in his own defense.

I was stunned when I read Baer's article. None of this has yet occurred to him. He isn't even well-versed in the facts and arguments as established so far.

Maybe Kerry's legal team can short-circuit O'Neill's strategy, but early indications are that they are still clueless. Trotting out Ann Lewis, Donna Brazile, and Lanny Davis says that they are treating this as a bimbo eruption times ten. They are fighting the last war, and their adversary is fighting the next one.

(18) Beldar made the following comment | Aug 12, 2004 12:54:51 AM | Permalink

Amy Ridenour's National Center Blog was kind enough to link this post, and she makes some perceptive points about the differences between the ways a good courtroom lawyer like John O'Neill and your average political campaign manager prepare and present their cases.

(19) Dan Hamilton made the following comment | Aug 12, 2004 2:55:59 AM | Permalink

I asked the question on my blog and you answered it. I'll defer to your legal experience here and say that you have offered a legitimate legal reason for not going forward with a suit.

But, I think you are parsing the distinction between fact and opinion here. It's not as if the SBVT are on TV saying "I believe Kerry to be a bad guy" they are saying flat out that Kerry is a liar. They accuse him of lying to get his awards and of lying to congress. That is an accusation of a crime. That is not a statement of opinion.

It would be up to SBVT to assert the truth defense or opinion defense. They would have to justify their statements as either truth or opinion. I would assume in an actual case they would go for the opinion defense first since, as you point out, it is an easier case to make. However, I do think there are some problems with it.

Based on their observations of specific incidents that they think Kerry's a bad guy. But the truth of the matter is what occurred. They are offering a version of the facts that differs from Kerry's and his crew mates, along with some of the SBVT past statements and the action reports, fitness reports and award citations. The question, to me at least, would seem to be which version of the facts would the court determine to be more credible.

Given the past assertions by some of the SBVT, a reasonable person could conclude that Kerry's version is the more credible.

Also, SBVT is going to have a little problem overcoming the evidence of the action reports and awards recommendation reports. Now, I was in the military and I know that most of these things do include a fair bit of puffing. But, Elliot would look like quite a fool contradicting his own fitness report on Kerry. Usually, if there's even a hint of a problem with an officer or enlisted, the language is parsed enough so that you can "read between the lines". Not so, from what I have seen of Kerry's fitness report - "In a combat environment often requiring independent, decisive action, LTJG Kerry was unsurpassed." and this gem - " LTJG Kerry emerges as the acknowledged leader in his peer group."

In the end, we are just blowing hot air anyway. There's just no way for Kerry to justify politically a libel suit. Oh, sure he'll threaten and I think rightly so, but to actually file suit would be a major political blunder. So, legal arguments aside, politically a suit is a non-issue.

Although there's no way I'm going to switch over to the dark side, I did enjoy your post.

(20) Bruce Griffin made the following comment | Aug 12, 2004 2:57:04 AM | Permalink

Thanks for a helpful critique of Mr Baer. I have several differences with Mr Baer, but I'd like to try to nail down some points:

What evidence is there to believe that Dr Letson's account is correct? I don't know how exactly medical procedure works in the military, but it is puzzling that the man who claims to have treated JFK did not in fact sign the medical report.

a) Is this customary procedure among military medical personnel for an attending doctor not to initial/sign the report?

b) In the absence of documented medical records, what evidence is there that Letson treated JFK? On what basis can we exclude the possibility either that Letson is lying or that he has confused JFK with another patient or that his recollections at thirty years distance are simply mistaken?

(21) Daniel Hamilton made the following comment | Aug 12, 2004 3:07:56 AM | Permalink

Bruce Griffin,

Since I'm still here, I'll take a shot at your questions based on my experience in the Navy. Although, Kerry's service was when I was basically still in diapers, so things may have been different back then.

(a) the attending generally at least initials medical treatment. Just like in a hospital when a nurse is the one who primarily treats you, the attending still has to come and look at you before you can go and sign the sheet. In my experience, the attending at least initialed, although you may never actually see him in the flesh.

(b) Which was one of the implied points of my post above. There is no documentation that's been released showing Letson actually treated or approved of the treatment of Kerry. There is no evidence to exclude lying or a faulty recollection.

(22) Beldar made the following comment | Aug 12, 2004 3:21:05 AM | Permalink

I have zero knowledge of what typical recordkeeping protocols were at Cam Ranh Bay Naval Base in 1968. It seems to me, however, that in the face of Dr. Letson's eyewitness account, it's incumbent upon Kerry and his allies to show some irregularity.

If they have witnesses who can testify, or regulations which state, that universal practice in that place and at that time required the senior-most medical personnel to sign or initial the paperwork, I'd have expected them to find that between May 5th and now. If, on the other hand (and as I suspect), it was absolutely routine for a hospitalman to do the paperwork, that would explain the silence from the Kerry camp.

In the category of "questions I'd ask at a discovery deposition if I were a Kerry lawyer but would never dare ask at trial without first knowing what the answer would be," I'd ask Dr. Letson why this particular incident stuck out in his memory after so many years. I have a pretty good hunch that the answer would be, "I treated thousands of vastly more serious wounds, the details of which I can't now recall. But I remember this one because it seemed so bogus at the time, because it was an officer, and because his crewmates were joking to me that I was treating 'the next J.F.K.' I didn't have too many PT-109 moments in my practice." But admittedly, that's just a guess.

(23) M. Simon made the following comment | Aug 12, 2004 4:45:48 AM | Permalink

Uh. Guys. There is a lawyer running this campaign. First you impeach the witness. Show him as a liar or a serial liar.

Then you counter the important testimony wth fact and let the fact that the witness lies in major ways to cover the holes in your case.

Seems like SOP but I'm an engineer not a lawyer.


John Kerry is proud of his military service. In 1971 before Congress he claimed he comitted war crimes. But hey, I can understand his pride. Not every one gets the opportunities he had.

What is the War Hero Afraid of?

Form 180. Release the records.

(24) M. Simon made the following comment | Aug 12, 2004 4:57:58 AM | Permalink

Let us take the opposite tack and assume only the Corpsman treated the wound.

Under those conditions in a hospital setting one must then assume the wound was not very serious. Either way we have direct or indirectevidence of a minor wound.


Did you hear the one about John Kerry?

He got his Purple Heart’s the old fashioned way, a bump, a scratch, and rice in the ass .

What is the War Hero Afraid of?

Form 180. Release the records.

(25) M. Simon made the following comment | Aug 12, 2004 5:07:31 AM | Permalink

"In a combat environment often requiring independent, decisive action, LTJG Kerry was unsurpassed."

That is easy to parse.

He was never (that is decisive) where he was supposed to be. Not a team player.


“I say again — go with the guys who were On The Boat”

Three of them say Kerry was never in Cambodia.

Who ya gonna believe the swifties? Or the guys who were On The Boat?

I’m going with the boat guys on this one.

What is the War Hero Afraid of?

Form 180. Release the records.

(26) lyle made the following comment | Aug 12, 2004 5:30:54 AM | Permalink

I was stunned when I read the Baer article, and the Carreon Signature Fallacy was one reason. Baer seems to think that Letson is just some guy off the street who is making a preposterous allegation, easily refuted.

But the Swift Boat Vets include more than 200 crewmen, most of Lieutenant Kerry's fellow officers, and every officer above Kerry in the chain of command. O'Neill himself commanded a swift boat.

Does Baer think that these men don't know who treated their own wounds? Does Baer think that they don't know who Hospitalman Carreon was? Does Baer think that trial attorney O'Neill could possibly be that sloppy?

Apparently so. Which suggests that TNR, Baer, and probably the Kerry campaign are still clueless. They are relying on the mainstream media for information, but the mainstream media is waiting for them to digest and spin the information first.

(27) lyle made the following comment | Aug 12, 2004 5:55:54 AM | Permalink

If Kerry's defenders truly are deaf and blind by virtue of their mainstream media cocoon, look for increasingly disastrous performances in their confrontations with O'Neill and the SwiftVets.

Mainstream media doesn't want to cover the story, and the worse things get for Kerry, the more reluctant they will become. Perhaps they can keep the gate closed. Or perhaps they'll wake up a few weeks from now to plunging poll numbers and their own irrelevancy.

We are witnessing a fascinating moment in the history of politics, law, and the media.

(28) megapotamus made the following comment | Aug 12, 2004 9:49:47 AM | Permalink

lyle, you are onto the Big Picture here. No one who was following this on blogs would have made the "Carreon Fallacy" (I smell a neologism here) as Baer did, or the frank assumption that the Swifties were making up the whole thing. Indeed, he reacts as if HE were there and saw it all as Kerry did. This is a fundamental weakness for the Dems generally but Kerry is especially suseptible, as he seems to have a more winsome grasp on the border between reality and fantasy than Nixon did on the borders of Cambodia and Vietnam. The monopoly media truly is doing no long term favors for their precious Progressives. Effectively, the Dems are blind, for their eyes (MSM) dare not reflect reality to them. Only devestating contact with reality can correct this. Luckily, that seems in train.

(29) Patrick R. Sullivan made the following comment | Aug 12, 2004 10:29:23 AM | Permalink

M Simon is absolutely correct, Carreon was only a medic, Leeson an MD. Either way, it points to a minor wound. And we have the corroboration of Grant Hibbard that it was only a superficial scratch, like something you'd get from a fingernail.

(30) John Rosenberg made the following comment | Aug 12, 2004 11:29:27 AM | Permalink

Beldar - Great post! Now for a query: last night I saw the former Clinton spinmeister Lanny Davis on, I think, MSNBC. He said a number of times that Mr. O'Neill was guilty of knowingly and purposefully saying things about Kerry that he knew were not true. Not that he was mistaken, but that he lied. Can/Should O'Neill sue Davis?

(31) ollie made the following comment | Aug 12, 2004 11:44:27 AM | Permalink

One Word: Bruce Springsteen.

(32) Dan S made the following comment | Aug 12, 2004 11:45:03 AM | Permalink


Fabulous post. While I do admit to loving the minutia of this case, it's the big picture that is really amazing. We may be premature in believing the paradigm has shifted, but I don't think we're wrong in believing there is movement in progress in how we debate these sorts of issues nationally.

And the rest of my comments on that topic I'm working into a short essay for my blog. I started running long for a comment.

Keep up the cogent analysis. And keep the passion high too!

(33) ollie made the following comment | Aug 12, 2004 11:45:38 AM | Permalink

One Man: Bruce Springsteen. Unbeatable.

(34) Beldar made the following comment | Aug 12, 2004 11:53:10 AM | Permalink

John Rosenberg asked, "Can/Should O'Neill sue Davis?" Anyone who can pay the filing fee can sue. But O'Neill has made himself a public figure, and I think there would be no legal merit to such a suit.

(35) James B. Shearer made the following comment | Aug 12, 2004 12:12:14 PM | Permalink

I agree with the person who said you came across as a bit arrogant especially since I think you overstated your case in places.

You claim calling someone a liar is always protected opinion. However Mary McCarthy famously said of Lillian Hellman on national tv something like every word she writes is a lie including "and" and "the". Hellman sued and as I recall the case dragged on for years at considerable expense to McCarthy until it was eventually dropped after Hellman died. One would have expected a quick dismissal if it is really clearcut.

Also you suggest a lawyer needs a completely proven case before filing suit but isn't it common to file a case with a theory which one expects to flesh out during discovery. In particular aren't you allowed to use discovery to find evidence of actual malice.

I agree that Kerry would be unwise to sue and unlikely to win if he did. However I expect a suit could be filed without his lawyers risking their licenses.

(36) Rob made the following comment | Aug 12, 2004 1:13:06 PM | Permalink

I am curious. Does anywone know how many people put in for the particular regulation that allowed Senator Kerry the early trip home? Also, how long was the regulation in force, and is it still so?


(37) bbbeard made the following comment | Aug 12, 2004 1:40:15 PM | Permalink


Fabulous post!

You write about Letson, "I have a pretty good hunch that the answer would be, 'I treated thousands of vastly more serious wounds, the details of which I can't now recall. But I remember this one because it seemed so bogus at the time, because it was an officer, and because his crewmates were joking to me that I was treating 'the next J.F.K.' I didn't have too many PT-109 moments in my practice.' But admittedly, that's just a guess."

I heard Letson on Hannity's radio show yesterday and that's essentially what he said. To me, he sounded calm, rational, educated, and wise to the ways of the world. The hole in what he said is that he is essentially passing on what he heard from Kerry crewmates about the reason for the (minor) injury. He has no firsthand knowledge of the action in question. In other words, although he seems to be authoritative about the extent of the injury, the cause is in dispute -- and if Kerry's crewmates have changed their story, we may never know the truth. But I don't think that affects your advice to Baer at all.


(38) Beldar made the following comment | Aug 12, 2004 2:36:45 PM | Permalink

James B. Shearer asked,

Also you suggest a lawyer needs a completely proven case before filing suit but isn't it common to file a case with a theory which one expects to flesh out during discovery. In particular aren't you allowed to use discovery to find evidence of actual malice.

No, a lawyer need not have a "completely proven case before filing suit," and with due respect, I don't believe I suggested that. The standard I referenced in the original post — that lawyers are required to have "a reasonable and objective basis from which to believe that the claims we're asserting are well founded" — is my paraphrase from memory of the applicable general standard under federal and Texas law, and I believe it's near universal in other states' courts as well.

Traditionally, however, certain types of claims have to meet even higher standards. Claims for fraud and defamation, for example, have to be pleaded "with particularity" to survive a motion to dismiss. The lawyer who cannot identify and specifically plead the facts behind his defamation claim — including the substance of the factual assertion, its maker, its audience, when and where it was made, why it was false, and how it harmed the claimant — will likely see that case dismissed before any discovery takes place.

I'm sorry, but I'm just not familiar one way or the other with the McCarthy/Hellman case you referenced. Your recollection may well be correct. If that case never went to final judgment in the trial court and then through at least one appeal, however, it has no precedential value — in other words, it would be nonbinding and not even persuasive if offered as an example for a later court to follow. Perhaps the trial judge was indecisive and wouldn't rule on a motion to dismiss; perhaps he ruled wrongly but since the case never got to a final judgment, the defendant never had the chance to appeal; perhaps the right motions and arguments were never made; or perhaps there were other issues that delayed resolution of the case. I'm afraid that other than speculating, I can't do much to assess that particular example, James. But I do thank you for commenting, and I'm sorry if I struck you (or strike you now) as being arrogant.

(39) Cornholiness made the following comment | Aug 12, 2004 3:48:17 PM | Permalink

I am all in favor of adding misery to the Kerry campaign, but think you might be a bit (but not wildly) overly optimistic on the law of defamation. It is quite true the statement, "I know John Kerry is lying about his first Purple Heart," is a statement of opinion. However, it is equally true that couching a defamatory remark in "opinion" terms ("I think," "I believe") will not insulate a declarant from liability. Indeed, the United States Supreme Court addressed the actionability of this very statement ("So-and-so is a liar") in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). Rather than jawbone the case, I'll just quote it directly:

"If a speaker says, "In my opinion John Jones is a liar," he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts
upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, "In my opinion Jones is a liar," can cause as much damage to reputation as the statement, "Jones is a liar." As Judge Friendly aptly stated: "[It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words `I think.'" See Cianci, supra, at 64. It is worthy of note that, at common law, even the privilege of fair comment did not extend to "a false statement of fact, whether it was expressly stated or implied from an expression of opinion." Restatement (Second) of Torts, § 566 Comment a (1977)."

Id. at 18-19.

In other words, regardless of whether someone goes on to explain the factual basis for calling someone "a liar," there will be contexts in which a set of subsidiary factual allegations clearly and necessarily flow from the statement. I think there's at least a colorable argument that this principle would apply to at least some of the statements by the swift boat vets. I don't want to appear to be splitting hairs here--I just don't want anyone to get the idea that there is an untrammeled right to go around calling someone a liar.

In all other respects, I think the article is spot on. In particular, a defamation case will never see the light of day (at least not pre-election) for two reasons. First, the non-Fox media is in blackout mode regarding the claims of the swift boat vets, and Kerry plainly would be better off if this story got played out in the blogosphere for a couple of weeks and then politely dropped off the radar screen. A lawsuit would have exactly the opposite effect, because the media would have to cover it, thereby give the swift boat guys a megaphone.

Second, there is the simple matter of burden of proof. At least one poster above is barking up the wrong tree by asking what proof there is supporting Letson's (the treating doctor's) version of events. That's not the way it works. In a lawsuit, the burden of proof would be on Kerry, not Letson. Moreover, while most civil cases are won by a "preponderance of the evidence," that would not be the case with a Kerry defamation claim. Kerry is a public official. As a result, he can recover on a defamation claim only by producing CLEAR AND CONVINCING evidence that the defamatory statement was made with knowledge of its falsity or with reckless disregard for its truth or falsity. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). Any practicing attorney will tell you the clear and convincing evidence standard is next to impossible to meet in defamation claims--that's why people in the public eye always say they're going to sue for defamation, but you rarely see them go through with it, let alone win. Imagine how a claim against Letson would play out. Kerry gets on the stand and says "that Letson never treated me." Letson says, "I sure did, and I distinctly remember Kerry crying like a little girl when a pulled a sliver out of his pasty white *ss." OK, that probably wouldn't be the exact testimony, but you can see how a defamation claim could easily explode in Kerry's face (think Oscar Wilde).

(40) edward made the following comment | Aug 12, 2004 4:58:55 PM | Permalink

I would like to amplify the question asked by Rob:

I am curious. Does anywone know how many people put in for the particular regulation that allowed Senator Kerry the early trip home? Also, how long was the regulation in force, and is it still so?

I have not been able to find much information about this "regulation". There was one comment at Captain's Quarters by a Vietnam Vet (standing salute to all who served with honor) that if there had been such a regulation, then he suggests a number of servicemen might have tried for another Heart to get to go home. Does anyone have information one way or the other about this three strikes "regulatiion" ?????

One other observation. All of the true heros that I have known (think NYFD at the WTC) do not stage re-enactments for home movies.

(41) Beldar made the following comment | Aug 12, 2004 5:32:19 PM | Permalink

Corn, thanks very much for your comment, and especially for your pointer to and discussion of Milkovich v. Lorain Journal Co. This is a bit more hard legal detail than I intended to go into here, but hey, bandwidth (at least for text) is cheap.

I'm not quite yet persuaded that Milkovich is inconsistent with what I originally wrote. One point that jumps out at me right off the bat is that the allegedly defamatory publication in Milkovich was an accusation by the defendants not only to the effect that the plaintiff had lied, but that he had lied under oath in a judicial proceeding and thereby committed perjury. No one is accusing Sen. Kerry of that, at least not yet anyway.

Secondly, while Milkovich clearly refused to extend the dictum from Gertz and recognize a new First-Amendment based privilege "to create a wholesale defamation exemption for anything that might be labeled 'opinion,'" it nonetheless left undisturbed the separate common-law privilege of "fair comment" that protected statements of pure opinion made on matters of public interest. See 497 U.S. at 13-14.

If the law is as you read it, Dubya has mega-claims to make for defamation against everyone who's chanted "Bush Lied!" about the "sixteen words" — and my gut tells me that's just not the law. But I want to re-read Milkovich again, and perhaps some of its progeny.

(And darnit, I wish Prof. Volokh would weigh in on this in response to my email to him last night; it's one of those things he'd know off the top of his head.)

Again, much thanks for the thoughtful post — although between us, you and I have now reached the MEGO moment — "mine eyes glazeth over" — with 90 percent of my blog's audience.

(42) recon made the following comment | Aug 12, 2004 6:01:13 PM | Permalink

I have read everything possible on the subject, inquired extensively, and have found no other incidents where anyone went home on 3 PH's. I know of several who refused PH's and/or refused to leave rather than abandon their comrades in life and death. I have seen several references (which for the moment I have not bookmarked) claiming that Kerry is the sole individual who went home on 3.

O'Neill was not merely another Swifty. O'Neill assumed command of Kerry's own boat shortly after Kerry's departure. It is fair to believe that he inherited a goodly percentage of Kerry's crew and their knowledge/experiences in the process.

(43) MeTooThen made the following comment | Aug 12, 2004 7:21:40 PM | Permalink


The question of defamation or libel here is moot. No matter how loudly Lanny Davis yells or how "off-limits" Kerry's military record is according to the LA Times, there will be no action filed against the SwiftVets. None.

O'Neill et al have all but begged to be brought to court over these allegations.

If O'Neill could act on behalf of John Forbes Kerry and sue himself for libel he would!

There are those who speculate that the SwiftVets are involved in the greatest and most outrageous act of payback, ever.

Could be.

Or, perhaps after all these years they had finally had enough and wanted to set the record straight.

The parallel issues of media bias in their non-coverage of this story, and their overall role in shaping public opinion on behalf of one candidate are perhaps the more compelling.

For the AnyOneButBush voter, none of this matters. Kerry is not Bush and will never be no matter what he says or does. Similarly, for the Bush voter, they already know that Kerry is a fraud, weak, and not worthy or fit to be the Commander in Chief.

My impression is that, paradoxically, the more clear it becomes that Kerry lied about his Vietnam experiences, the less likely the MSM will cover this, and in point of fact, the story will be scrubbed and buried.

Or not.

(44) truthseeker made the following comment | Aug 13, 2004 2:08:06 AM | Permalink

In reference to the contoversy over who treated Ltjg Kerry for his sliver wound, it is noted that J.C. Carreon HM1 signed the form. Kerry's people claim he treated Kerry and not Dr. Letson. Accepting that as true (which I believe is false) then Mr Kerry should not have received a purple heart as treatment by a Medical Officer is required by regulation in order to meet the criteria for a purple heart. The Kerry crowd can't have it both ways.

(45) Patrick R. Sullivan made the following comment | Aug 13, 2004 9:41:32 AM | Permalink

" O'Neill assumed command of Kerry's own boat shortly after Kerry's departure. It is fair to believe that he inherited a goodly percentage of Kerry's crew and their knowledge/experiences in the process."

Supposedly, Kerry arranged for his crew to be transferred to other duty when he heard he was getting to go home. I don't know if that is true or not, but if it is, it might explain their loyalty to him now.

(46) James B. Shearer made the following comment | Aug 13, 2004 12:02:00 PM | Permalink

While accusing someone of lying under oath in a judicial proceeding may arguably be a more serious accusation then accusing them of lying to obtain a combat medal I do not see why this would change the legal analysis of whether the accusations are protected as opinion or fair comment. The accusations in the newspaper article in question in Milkovich v. Lorain seem quite similar in form to the accusations being made against Kerry.

(47) Beldar made the following comment | Aug 13, 2004 6:48:13 PM | Permalink

Mr. Shearer, the distinction is actually quite crucial in defamation law. Accusing someone of commiting a crime, including perjury, is considered "defamation per se" — in other words, the court and jury need not bother to consider whether such an accusation reaches the appropriate threshold of injury to the plaintiff's business or property, because it's conclusively presumed that anyone would be so injured if the audience heard and believed the accusation. We're all liars, to one degree or another; we're not all felony criminals.

If you'll look at the Dems' threat letter, they attempt to avoid the "opinion" problem by trumping up a thin case, unsupported by any facts, to argue that the SwiftVets actually have accused Kerry of perjury. They did that precisely because they know that otherwise, statements that someone's a "liar" aren't actionable. But none of the statements that Kerry has been accused of lying in have been statements under oath in a judicial proceeding on matters of material fact; in other words, he hasn't been accused of perjury, either in form or in substance.

This may seem like a trivial distinction to you. But just as the difference between perjury and mere lying can result in a prison term for the former and an acquittal for the latter, so too can that distinction be outcome determinative for a defamation claim.

(48) James B. Shearer made the following comment | Aug 13, 2004 8:09:37 PM | Permalink

While the question of whether this is defamation per se might be relevant as regards damages, I don't see how it affects the analysis of whether the statements are actionable if damaging. The Supreme Court case seems to clearly say that they are.

Also are you confident that the courts would rule that saying someone had lied in order to obtain a military honor he did not deserve is not defamation per se? In any case it would appear to me that Kerry could easily establish that the statements did in fact damage his professional reputation and career prospects.

(49) Beldar made the following comment | Aug 13, 2004 9:21:15 PM | Permalink

Mr. Shearer, I appreciate your civility and tenaciousness. There is a part of the defamation per se concept that relates to damages — showing that the defendant has committed defamation per se entitled you a a presumption of at least nominal damages. But at its heart it's not an issue of damages, it's an issue of whether a type of allegation is or isn't sufficiently injurious enough, by its nature, to warrant a presumption of defamatory injury. If I call you a perjurer, you don't have to call a witness to say that when he heard me say that, he suddenly thought less of you.

I've again re-read Milkovich, and continue to believe that it stands for the proposition that a defamation defendant can't immunize himself from liability by prefacing an otherwise defamatory assertion with "It's my opinion that ...." What matters is what comes next. If what comes next is "John Kerry molested three 12-year-old schoolgirls as they skipped home from school yesterday," then that's defamation (assuming also that the statement was false and, because he's a public figure, that it was made with knowledge of its falsity or reckless disregard for its truth). If what comes next is "John Kerry [or George W. Bush] is a liar," I don't believe it matters whether you preface it with "It's my opinion" or not — unless you also add "and he told his lies knowingly and with an intention to mislead on a material point while testifying under oath in a judicial proceeding," in which case you haven't accused him of being a mere liar but instead of being a perjurer.

That's just my opinion, sir, as one lawyer. May be right, may be wrong, but there you have it.

(And no, I'm not asserting that John Kerry molested any children. Sheesh, now I'm gonna get Google hits for "Kerry child molester." It was a hypothetical, I made it up for contrast. Down, you moonbats!)

Perhaps we can agree to disagree on this issue, but nevertheless both agree that if Sen. Kerry's lawyers honestly think a presidential candidate can sue for being called a "liar," they certainly know where to find the courthouse clerk's door and can afford to pay the filing fee.

Anyway, with due respect, sir, for any further discussion of this, I'm afraid I'm going to have to refer you to your local law library or findlaw.com for now. Or you could perhaps strike up an email correspondence with Prof. Holzer, who as I've recently posted elsewhere, independently came to precisely the same conclusions as I did on the liar/opinion issue here. (Not being a blogger, he may be less inclined to argue such matters or conduct legal research than I've been.) Having spent this afternoon in a short trial in federal court — where, ironically, one of the claims I was opposing was a defamation claim — I'm insufficiently energetic to do the research necessary to convince you, if that is indeed possible.

(50) James B. Shearer made the following comment | Aug 15, 2004 6:36:30 PM | Permalink

Since Beldar is granting me last word a few final points.

It appears to me that the test is whether a statement can be proven false. So a statement like "Kerry is a liar" would not be actionable but a specific statement like "Kerry lied about X" potentially is.

If I were arguing Beldar's side I would point out that Milkovich (for purposes of Milkovich v. Lorain) was not a public figure.

Defamation law seems rather muddled (as shown for example by the tangled history of Milkovich v. Lorain) so perhaps some caution is in order when stating what the law is.

Some of the reasons that Kerry would be unwise to sue before the election do not apply to a suit filed after the election should Kerry lose.

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