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Saturday, September 17, 2005
Memo to Sen. Kerry
| TO: | Sen. John F. Kerry |
| FROM: | William J. Dyer (a/k/a Beldar) |
| RE: | Limitations |
Spectacular lawyer though you may (or may not) be in your own right, I know your staff includes some agile and diligent legal minds. Nevertheless, in the interests of fairness, I feel obliged to remind you of the fact that Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry by John E. O'Neill and Jerome R. Corsi — which spent several weeks at No. 1 on the NYT Bestsellers List before last year's presidential election — was published on or about August 25, 2004, just over one year ago.
I'm quite sure you'll recall that many of your supporters, defenders, and admirers argued enthusiastically that fall, and even after the election, that you ought to sue Mr. O'Neill, Dr. Corsi, and their publisher, Regnery Publishing, Inc., for defamation — more specifically, for libel based on the book and slander based on their public comments in connection with it.
I'm less sure — but will nevertheless give you the benefit of the doubt — that you'll remember from law school and perhaps from your bar review course that defamation lawsuits are generally are based on state law, and that they are generally subject to state statutes of limitations, regardless of whether they are filed in state or federal court.
My concern, however, is that you may not be aware that most state statutes of limitations for defamation are quite short. In Texas (where Mr. O'Neill resides), New Jersey (where Dr. Corsi resides), and the District of Columbia (where their publisher Regnery Publishing, Inc. has its principal place of business and you have your own regular place of business), those jurisdictions' respective statutes of limitations on defamation claims expire only one year after the alleged defamation is published.
Thus, in most of the logical, permissible, and likely venues in which you might have brought such a defamation lawsuit against Mr. O'Neill, Dr. Corsi, and Regnery Publishing, you've already allowed your potential claims to become time-barred, Sen. Kerry! D'oh! Why'd you let that happen?
There may be still be a few permissible venues — perhaps Massachusetts, which has a shamefully generous three-year statute of limitations for defamation — in which your sloth (or whatever else may explain your inaction to date) has not yet extinguished your potential claims.
Nevertheless, you're also doubtless aware that with each additional day that passes, the evidentiary trail grows colder; potential witnesses' memories fade; and the chances that jurors are likely to take your potential claims seriously continue to evaporate. There is no possible tactical or strategic benefit to your continuing to withhold your claims, and there are overwhelming downsides to doing so. Your delay is inexplicable if you believe your claims are meritorious.
On the other hand, regardless of limitations, truth is a defense to a defamation claim — whether that claim has been brought in days, weeks, months, years, or even decades after the alleged libel or slander is published. A defendant might even voluntarily choose to waive his or its limitations defenses. And even a defendant who has asserted an applicable statute of limitations as an affirmative defense may nevertheless choose, as a tactical preference, not to bring an early summary judgment motion. Indeed, some defendants may quite relish the opportunity to begin discovery on the merits, being delighted to finally have an opportunity to have subpoena power, oaths, and penalties of perjury to help them finally dig out the truth.
In fact, just based on my own personal experience with him, Senator, I'd sorta bet that John O'Neill would not only waive limitations, but even pay your filing fees for you!
Seriously, though, Senator, some folks might draw the inference that rather than your having just forgotten the one-year anniversary of the publication of Unfit for Command — oopsies! — you're instead desperately afraid to ever face cross-examination under oath, or document subpoenas of yourself and your hagiographer Doug Brinkley, or the rest of the brilliant spotlight that accompanies a public lawsuit. Folks might become more and more convinced that you've very deliberately let most state statutes of limitations expire already, and that you'll continue to allow the clock to run on any that haven't yet.
The 2008 campaign season is right around the corner, Senator, and nobody is likely to forget the SwiftVets' allegations before then. If you believe that you have a legitimate defamation lawsuit, sir, you must use it or lose it. Put up or shut up. You snooze, you lose.
Tick-tock, Senator. Tick-tock!
Posted by Beldar at 10:02 PM in Law (2006 & earlier), Politics (2006 & earlier), SwiftVets | Permalink
TrackBacks
Other weblog posts, if any, whose authors have linked to Memo to Sen. Kerry and sent a trackback ping are listed here:
» Note to Kerry: Statutes of Limitations are Expiring from Les Jones
Tracked on Sep 20, 2005 8:01:32 PM
» Time to crap or get off the pot, Senator Kerry from Wizbang
Tracked on Sep 21, 2005 10:00:52 AM
» Yesterdays brouhaha from Cadillac Tight
Tracked on Sep 23, 2005 10:53:54 AM
Comments
(1) Bingo made the following comment | Sep 18, 2005 1:49:25 AM | Permalink
Good to see you re-visiting "He Who Made You" (well, at least in THIS household ;-)
I expect His Fraudulency will be seeing you in his wake for the forseeable future, capably manning the .50 cal keyboard for a band of sexagenarian heroes.
(3) punslinger made the following comment | Sep 18, 2005 10:33:11 AM | Permalink
As to the charges of Bush being a draft dodger. Yeah, Bush dodged the draft, Kerry dodged the draft, and I dodged the draft. I enlisted in the Navy for four years in 1969. I extended for 3 more, got out and joined the USNR for 2 1/2 more years. Bush joined the Texan Air National Guard, and Kerry joined the US Naval Reserve.
A roommate of mine was a two year reservist, just like Kerry. You see, Kerry was in the USNR, not the USN. The requirements at that time for the two year program, was 4 years additional Active Reserve. That meant drill time plus two weeks training each year. The same requirements that Bush had.
The funny thing is that what with joining the anti-war movement, attending and leading anti-war demonstrations, hanging with Hanoi Jane, lying about the military to Congress, meeting with the enemy twice in Paris, representing the the North Vietnamese peace plan to Congress, being present at the meeting of Winter Soldiers where serious discussion was made of a proposed assasination of six pro-war Senators, and throwing his medals over the fence, or someone elses medals, this must have kept him busy.
I don't recall any mention of Kerry doing his drills. Did he do any of his two-week ACDUTRA's?
Kerry would have recieved his honorable discharge eight years after his entering into the USNR. Lets see, he got out in summer of 1968, that's two years. Add six more and that would bring you to 1974.
But Kerry did not get his honorable discharge until Carter was sworn in and there was an immediate amnesty given for draft evaders. In fact, it is in Kerry's own released files that show his honorable discharge was granted by a special military review board after Carter was sworn in.
I never needed a military review board to give me an honorable discharge. It just arrived in the mail after my eight years were up. I don't even know anyone who needed a military review board to give them an honorable discharge.
I suspect that the reason Kerry has not released all of his records, as he has many times promised and failed, is that he failed to complete his obligated drills and recieved a less than honorable discharge. Maybe some disciplinary action was taken for his aiding and abetting the enemy.
President Bush did however, exceed his drilling requirements and recieved an honorable discharge in the usual manner.
(4) Ed made the following comment | Sep 19, 2005 9:23:53 AM | Permalink
Wow. You are such a cheap hack.
(5) Dennis made the following comment | Sep 19, 2005 11:35:08 PM | Permalink
Thanks for the time piece!
(6) George made the following comment | Sep 21, 2005 3:10:59 PM | Permalink
Hey Kerry,
Let us see your military records
while you're at it. You promised
you would.
(7) Joshua made the following comment | Sep 22, 2005 1:37:03 AM | Permalink
In fairness to Kerry, I don't think he ever said he was going to sue the Swift Boat Veterans, and even if he did, I don't see any reason for him to sue anywhere else but Massachusetts, where he lives.
(8) Beldar made the following comment | Sep 22, 2005 11:44:22 AM | Permalink
Joshua, those are indeed fair points, and I thank you for making them, as they contribute to the discussion.
Sen. Kerry's campaign did make fairly heavy-handed threats of litigation against the TV stations that first accepted paid advertising from the SwiftVets, and that is indeed fairly attributable to him. One can't rule out the possibility that he never privately encouraged his entourage to make noises about the possibility of him suing the authors and Regnery for defamation, but he certainly must have been aware of those noises, and there's no indication that he ever made any public attempts to squelch them either.
Most courts would probably hold that Regnery, Mr. O'Neill, and Dr. Corsi are subject to personal jurisdiction in Massachusetts, having written about one of its residents and having distributed and sold some of their books there as part of a national and international sales program; and Sen. Kerry can plausibly claim that most of his damages accrued in Massachusetts, where his reputation reasonably translates into his reelection prospects. That's precisely why I included a reference and link to the Massachusetts statute of limitations (which really is shamefully long, a complete deviation from almost all other states) in my original post. It's also quite possible that irrespective of limitations, Sen. Kerry would have other tactical but valid reasons for preferring a Massachusetts forum; I can't say that I would blame him for being wary of, for example, Houston, where Mr. O'Neill lives, and where Sen. Kerry has found many campaign dollars but comparatively few voters.
But even if he reasonably felt that Massachusetts' long limitations period meant he could ignore the shorter ones almost everywhere else, there's still no legitimate strategic or tactical reason that occurs to me to explain why he'd deliberately wait more than a year. To the contrary, if he wants to ensure that the litigation has been completed and appeals exhausted before the 2008 campaign season, he's already running out of time. His delay in attempting to redeem his reputation through litigation may indeed subject him to equitable affirmative defenses laches, perhaps, and certainly failure to mitigate his damages.
No, I think the absolute best spin that Kerry supporters can put on this is that he could have sued, but chose not to because he (choose one or more:) wanted to put it behind him, was too busy being a senator, didn't want to re-open the nation's wounds from Vietnam, etc.
But the fact remains that the SwiftVets have always insisted that they'd like nothing better than the chance to use subpoena power to compel production of documents and testimony under oath, yet they've lacked any reasonable litigation vehicle to get that. While Sen. Kerry's supporters insist that he'd be vindicated, and he does have an obvious litigation vehicle to pursue that vindication, he's chosen so far not to make use of it. The contrast between those two positions especially when combined with the continuing stonewall over, for example, the "massive" archives that have been made available only to Kerry's hagiographer Doug Brinkley certainly can give rise to a reasonable inference that Sen. Kerry has something to hide. And the inference continues to grow stronger with each passing day.
(9) Beldar made the following comment | Sep 22, 2005 11:48:30 AM | Permalink
Ed, you might want to be a little more specific with your ad hominems if you wish for them to be persuasive. Dissenting views expressed in a civil fashion are welcome here. But do check the blog's comment policies (under which I've deleted a few less civil and entirely anonymous comments to this post); those policies are linked from the sidebar and again here.
(10) abelard made the following comment | Sep 23, 2005 6:23:17 PM | Permalink
I like the facetious rhetoric. Of course, Kerry is not going to sue the SBVT. They have him dead to rights. He's a scumbag ratsocrat who wore medals to which he was not entitled, who lied in his official reports, and who intentionally and fraudulently schemed to obtain purple hearts with the intention of getting out of Vietnam as quickly as possible, and a public trial would only make that fact abundantly clear in thousand of pages of trial transcripts and docs.
Good on you, Beldar, for calling him on it. Will we see an esteemed member of the fourth estate ask him in a press conference whether he is going to press legal claims before the deadlines? O, hear that vacuous baritone echo!
(11) Rusty made the following comment | Sep 24, 2005 9:31:30 AM | Permalink
A decorated war hero becomes a "scumbag" and a guy who used his connections to avoid the war is a hero.
Only in America.
(12) abelard made the following comment | Sep 24, 2005 8:29:57 PM | Permalink
Nothing about Bush's military service was heroic. Kerry is a scumbag because he claimed purple hearts he did not deserve, and claimed a bronze star he did not deserve. He is a lying scumbag for these actions, no matter what he did before or after.
(13) itsme made the following comment | Oct 3, 2005 5:02:19 PM | Permalink
To: George Bush
Spectacular intellect though you may (or may not) be in your own right, I know your staff includes some agile and diligent legal minds. Nevertheless, in the interests of fairness, I feel obliged to remind you of the fact that Kitty Kelley's book "The Family" was published just over one year ago.
I'm quite sure you'll recall that many of your supporters, defenders, and admirers argued enthusiastically that fall, and even after the election, that you ought to sue Ms. Kelley, for defamation — more specifically, for libel based on the book and slander based on her public comments in connection with it.
I'm less sure — but will nevertheless give you the benefit of the doubt — that your expensive legal counsel has told you that defamation lawsuits are generally are based on state law, and that they are generally subject to state statutes of limitations, regardless of whether they are filed in state or federal court.
Thus, in most of the logical, permissible, and likely venues in which you might have brought such a defamation lawsuit against Ms. Kelley and her publisher, you've already allowed your potential claims to become time-barred, Mr. Bush! D'oh! Why'd you let that happen?
There may be still be a few permissible venues in which your sloth (or whatever else may explain your inaction to date) has not yet extinguished your potential claims.
Nevertheless, you're also doubtless aware that with each additional day that passes, the evidentiary trail grows colder; potential witnesses' memories fade; and the chances that jurors are likely to take your potential claims seriously continue to evaporate. There is no possible tactical or strategic benefit to your continuing to withhold your claims, and there are overwhelming downsides to doing so. Your delay is inexplicable if you believe your claims are meritorious.
On the other hand, regardless of limitations, truth is a defense to a defamation claim — whether that claim has been brought in days, weeks, months, years, or even decades after the alleged libel or slander is published. A defendant might even voluntarily choose to waive his or its limitations defenses. And even a defendant who has asserted an applicable statute of limitations as an affirmative defense may nevertheless choose, as a tactical preference, not to bring an early summary judgment motion. Indeed, some defendants may quite relish the opportunity to begin discovery on the merits, being delighted to finally have an opportunity to have subpoena power, oaths, and penalties of perjury to help them finally dig out the truth.
In fact, just based on Beldar's personal admiration of sleazy hacks, I'd sorta bet that Kitty Kelley's lawyers would not only waive limitations, but even pay your filing fees for you!
Seriously, though,George, some folks might draw the inference that rather than your having just forgotten the one-year anniversary of the publication of "The Family" — you're instead desperately afraid to ever face cross-examination under oath, or document subpoenas of yourself and your various lackeys, or the rest of the brilliant spotlight that accompanies a public lawsuit. Folks might become more and more convinced that you've very deliberately let most state statutes of limitations expire already, and that you'll continue to allow the clock to run on any that haven't yet.
After all, if you really DIDN'T snort cocaine at Camp David, why WOULDN'T you want to defend your good name, hmmmm?
If you believe that you have a legitimate defamation lawsuit, sir, you must use it or lose it. Put up or shut up. You snooze, you lose.
Tick-tock, George. Tick-tock!
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