WASHINGTON (CN) — An attorney for the Washington Post pushed a federal judge Thursday to toss a libel suit in which President Donald Trump’s campaign says two of the outlet’s opinion articles falsely imply Trump solicited foreign election interference.
Opinion writers are allowed to make “rhetorical flourishes” under the First Amendment, said attorney Kevin Baine of the firm Williams & Connolly at a virtual hearing before the D.C. federal court, noting that both articles were also clearly labeled as “opinion” pieces.
The Trump campaign’s eight-page libel lawsuit was filed in March, and the Post’s corresponding motion to dismiss in July. The case centers around two 2019 Washington Post opinion articles that Trump campaign attorney Charles Harder maintained both contain defamatory statements.
Written by Post political blogger Greg Sargent and opinion writer Paul Waldman, both of whom are considered left-leaning, the pieces mischaracterized Trump as a solicitor of foreign election interference, Harder said.
The campaign blasted Sargent’s article for saying that Special Counsel Robert Mueller had concluded in his report that the campaign had “tried to conspire with” Russia to coordinate a “sweeping and systematic” attack of the 2016 United States presidential election.
“That is a statement that is not supported by the Mueller report,” Harder said Thursday.
The Mueller report stated verbatim it “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”
Baine noted that Sargent hyperlinked to his source, providing a 21st-century footnote.
“Anybody who’s wondering about that statement can click on the link and see exactly what it was for the basis of this conclusion,” he said.
The attorney held that the writer’s opinion was legally protected free speech.
“Interpreting another report is protected as long as you disclose the underlying facts,” Baine continued. He said that the blogger was interpreting the report, as one would expect a political writer to do.
Harder said the provision did not apply here.
“Fair report privilege has to be a fair and accurate description of the report,” said Harder of the blogger’s writings. He further maintained that the statement was not an opinion statement but “a statement of fact because the writer is saying that it was Mueller’s conclusion.”
Judge Ketanji Brown Jackson, a Barack Obama appointee, paused to question why this statement was harmful to the plaintiff.
“If the Mueller report said ‘the sky is blue’ and Mr. Sargent, reading that report, said ‘the sky is red’ — isn’t Mueller the one that has been harmed in this sense? His statements are the ones being mischaracterized,” she said to Harder, who maintained that Trump’s campaign had been harmed.
The judge further asked to what extent the article was “actually harmful when the statement at issue is a characterization of a widely-publicized, well-established report.”
Harder responded Thursday that Sargent’s words would be taken as fact by readers, who would be unlikely to read the 448-page report for themselves.
The second piece, Waldman’s article, the campaign said, defamed it with a statement referencing an interview with ABC News’ George Stephanopoulos, in which the president said he would accept information about his 2020 rivals from foreign governments or hand it to the FBI.
In the interview, Trump said: "I think you might want to listen, there isn't anything wrong with listening. If somebody called from a country, Norway, [and said] ‘we have information on your opponent' — oh, I think I'd want to hear it."
“Who knows what sort of aid Russia and North Korea will give to the Trump campaign, now that [the President] has invited them to offer their assistance?” Waldman wrote on the topic.
Harder said Waldman’s sentence was defamatory because “it’s essentially saying Russia and North Korea will give the Trump campaign aid, who knows what kind of aid it will be.”
“The president did not invite Russia or North Korea to give evidence to his campaign, there’s no evidence whatsoever that this occurred,” Harder said, maintaining that the Trump campaign ultimately never received aid from either of them, which prompted a response from Jackson.
“Correct, but the statement is not referencing the past,” she said, explaining the verbiage of the sentence.
Baine made the same point in his arguments.
“The main point is that it is not provably true or false. It is speculative about the future,” he said. The Post attorney maintained that a political commentator does not have to punctuate his sentences with phrases like “in my opinion,” “as I see it,” or “it is my judgment that.”
“It would be a severe restriction on public debate if a columnist, a commentator on television, anybody in conversation, who was trying to say what they think… had to preface it by saying, ‘Now bear in mind, this is my interpretation, this is my opinion,’” Baine said.
Judge Jackson did not note when she intended to rule.
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