by Michael C. Dorf
Dr. Martin Luther King, Jr., was born on January 15, 1929. Today is the official annual day of recognition of his birth. In past years, I have sometimes posted MLK Day essays on a theme related to Dr. King's life and work. I considered doing so today. Following a year that saw both massive protests for racial justice and political violence that included expressly racist symbols and language, there would certainly be no shortage of material. But I find myself too unsettled in my thoughts about such matters to do so today (although what I say will touch upon race and racism in one particular). I am confident that interested readers will find no shortage of such reflections elsewhere.
Accordingly, and with apologies for the fact that doing so does not quite match the occasion, I offer some commentary on the latest nonsense to ooze forth from the brain of the man who was once "America's Mayor."
Yesterday the NY Times reported that Rudy Giuliani was trying to peddle presidential pardons for $2 million a piece. According to the Times story, Giuliani denied this "characterization," which could simply mean that the invoices his office prepared say "for legal services" rather than "bribe for pardon." Whatever the truth about this alleged Giuliani/Trump corruption, there can be little doubt about the latest piece of evidence that Giuliani is well beyond his sell-by date. Over the weekend, Giuliani said the following about how he plans to defend Donald Trump in his second Senate impeachment trial:
They basically claimed that anytime [Trump] says voter fraud, voter fraud -- or I do, or anybody else -- we're inciting to violence; that those words are fighting words because it's totally untrue. Well, if you can prove that it's true, or at least true enough so it's a legitimate viewpoint, then they are no longer fighting words.
Let's address the many errors in that statement one at a time.
(1) "They"--presumably meaning the majority of members of the House of Representatives who voted for the latest article of impeachment--did not claim that the mere allegation of voter fraud amounted to incitement. After all, the House didn't impeach Trump this second time for each of the prior occasions on which he baselessly alleged voter fraud. Trump was impeached based on his lighting the match on January 6. It's true that the article of impeachment describes Trump's false claims, but, as I explain more fully below in (3)(b), Trump's having committed the impeachable offense of incitement of insurrection does not depend on his claims of voter fraud being false.
(2) As a matter of fact, however, the claims of voter fraud are false, as numerous judges and other government officials--many of them Republicans and even Trump appointees--have found.
(3) Nor are the claims of voter fraud "true enough." Now you might think that the very concept of "true enough" is bizarre--that it depends on something like Giuliani's famously postmodernist proclamation that "truth isn't truth." That's not necessarily right, however. By "true enough," I suspect Giuliani means that the evidence of voter fraud, while not necessarily compelling, is sufficiently suggestive that a reasonable person could believe it. If that were so, Giuliani is saying, then Trump's claims of voter fraud were made in good faith.
Nonetheless, there are two very serious difficulties with the "true enough" defense:
(a) The voter fraud claims are not merely false; they're very clearly false, thus falling well below any lower bar of "true enough."
Despite Trump's public allegations of fraud, in case after case, lawyers arguing for Trump in court told the judges that they were not alleging fraud, instead making technical challenges to the procedures by which rules governing voting were adopted or modified, or to such things as who could observe ballot processing under what conditions. The reason the Trump lawyers refused to allege fraud is that they knew that they could not do so in good faith--that is, they knew they faced the possibility of professional penalties if they alleged fraud. Lawyers do not face sanctions for making allegations that were reasonable when made but turn out to be false once all the evidence is gathered and weighed. They do, however, face sanctions for making allegations that are not supported by enough evidence that one could reasonably believe them.
For example, Federal Rule of Civil Procedure 11 provides that for lawyers to avoid sanctions, they must present only those claims for which "the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." "Evidentiary support" does not mean definitive proof. It means essentially what Giuliani meant by "true enough." The fact that Trump's lawyers did not allege fraud (much less offer any evidence of fraud) in the dozens of court challenges they brought to the election shows that they themselves knew that Trump's claims of fraud were not only not true, but not even "true enough."
And to be clear, those lawyers who declined to allege fraud in court include Giuliani, who, despite his public allegations of fraud, said this when questioned by a federal judge in Pennsylvania: "This is not a fraud case." So no, Trump's claims of voter fraud are not "true enough."
(b) But suppose they were. Suppose that Trump's claims of voter fraud were true enough. Or even suppose that they were true. So what? That would not be relevant to the charge of incitement.
Suppose that there is smoking-gun evidence that Jones, an African American man, shot and killed Smith, a white man. Jones is arrested and admits that he shot Smith, but pleads not guilty on the ground that he did so in self-defense. He is held in the county jail. Unsatisfied with the pace of the judicial system, a local KKK leader addresses a racist mob that has assembled in the public square. He speaks for an hour, during which time he repeatedly says, truthfully, "Jones killed Smith," peppering his remarks with racial epithets and expressions of white supremacy. He urges his followers to be "tough" and "fight" or they "won't have a county." Building to a crescendo, he tells his followers to march on the jail and "take back our county." They do so and lynch Jones.
In that example, the Klan leader has committed incitement, which the First Amendment does not protect. It doesn't matter that some of what he said to rile up the mob was true. Truth isn't a defense to a charge of incitement.
To be sure, truth is a defense to a civil action for defamation. Where the plaintiff is a public official or a public figure, "true enough" is also a defense to defamation, as that is roughly what is meant when the Supreme Court in NY Times v. Sullivan and subsequent cases held that for such plaintiffs to prevail they must show that the defendant knew that the reputation-damaging statement at issue was false or acted with reckless disregard for the truth. If a writer or publisher working on a story in good faith has reason to believe a statement about a public official or public figure is true even though it turns out to be false, the plaintiff public official or figure cannot recover. We could say that in such a defamation case, true enough is good enough.
To state the obvious, however, incitement isn't defamation.