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.