So, via ABC news we get this:
NEW: Hunter Biden's attorney sends cease-and-desist letter to former Pres. Trump's legal team, claiming Trump's rhetoric on social media and elsewhere "could lead to [Hunter Biden's] or his family’s injury." https://t.co/FB0nxNd0NL
— ABC News (@ABC) July 13, 2023
Now, our best Google-fu couldn’t find a mainstream news source that had a copy of the letter, but strangely, Ed Krassenstein claims to have a copy of much of it:
Breaking: Hunter Biden's attorneys have just sent Donald Trump a cease-and-desist letter.
— Ed Krassenstein (@EdKrassen) July 14, 2023
It partially reads as follows:
“As you know, Winston & Strawn represents, and I am writing on behalf of our client, Hunter Biden. I am sending this letter to make a demand that your… pic.twitter.com/4g05sq1nOr
Now, we are always reluctant to trust one dude on the Internet unless we know this person has a record of credibility. In other words, we don’t trust anyone out of the gate until we personally know that this person has a history of getting things right and with no insult to Krassenstein, we haven’t studied him enough to know if he can be trusted. But … to be very blunt, we would have a hard time believing that Krassenstein would be able to whip up such a credible fake so quickly. So, while we are not 100% sure it is genuine, we feel comfortable writing this post on the assumption that it is.
Naturally, if it turns out to be a hoax, that changes the analysis.
Assuming that this is genuine, here are enlarged versions of the pages:
Feel free to enlarge the screenshots further.
First, as for the defamation claims, because Hunter Biden is a public figure, he would have to prove that Trump not only met the usual requirements of defamation, but that Trump made those statements knowing that they were false, or with reckless disregard for the truth or falsity of them. But if Hunter sues in a sufficiently friendly district, we think a jury would have little difficulty finding Trump is at least speaking recklessly. To those who don’t like him, Trump is the embodiment of recklessness.
We don’t think Trump could ever be successfully sued civilly for incitement because the legal standard for incitement is purposefully set very high. One might recall that a district court found that it was plausible that Trump incited violence on January 6, 2021, but Trump has actually beaten claims like this before. That would be in Nwanguma v. Trump, 903 F. 3d 604 (6th Cir., 2018), where like in the Jan. 6 suit, Trump lost in the lower court. In Nwanguma, the circuit court stepped in and dismissed the case. We suspect something similar might happen in the Jan. 6 litigation because we actually listened to Trump’s speech on Jan. 6, 2021 and you have to live in an alternate reality to pretend Trump was riling up the crowd. It was honestly a pretty boring speech.
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Nwanguma correctly applied the Supreme Court precedent in Brandenburg v. Ohio, 395 U.S. 444 (1969). The key passage in Brandenburg states that
the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
So, it is a three-part test, and the most basic requirement is advocacy of violence or other illegal conduct. And, returning to the Hunter Biden letter, there isn’t a single instance of advocacy of violence cited in the parts we have seen.
And, no, simply saying Hunter did bad things is not incitement. Advocacy is required. People say other people did bad things all the time. A major purpose of the First Amendment is to allow people to say bad things about each other, especially when they are public officials—or in this case, the son of a public official who is arguably being treated much more gently than a similarly situated criminal.
And it’s not because we don’t understand that accusations of bad conduct can lead to violence. We will quote another Supreme Court decision on that point, Near v. Minnesota, 283 U.S. 697 (1931):
There is nothing new in the fact that charges of reprehensible conduct may create resentment and the disposition to resort to violent means of redress, but this well-understood tendency did not alter the determination to protect the press against censorship and restraint upon publication.
In other words, the Supreme Court is saying, ‘yes, we understand that if you accuse a person of doing a bad thing that it can lead to violence, but that isn’t a reason to censor people.’ There can be no true journalism otherwise. For instance, how many times has someone accused Trump of doing bad things? And when Trump is accused of doing bad things, would it surprise anyone that he got an increase in death threats because of it? And yet we don’t know any liberal who would argue that you can’t say anything bad about Trump, whether he is president or not.
And as far as the claim of harassment is concerned, we would simply say that any law that purports to punish his entirely peaceful speech—outside of potentially a defamation context—would have to be unconstitutional. We have felt for a while that numerous harassment statutes pretty blatantly violate the First Amendment and we would think it is more than a little funny if Trump brings one of those statutes down while defending himself in court.
The other interesting thing to ask is who leaked it to Krassenstein and/or ABC News (remembering that we are still assuming for the sake of argument that Krassenstein’s pictures are genuine). If someone from the Hunter Biden legal team leaked it, they might expose themselves to defamation claims.
How? Typically, defamation claims require what is called ‘publication’ which is just fancy legal talk for sharing the allegations with third parties. In the law, the lawyers are not typically seen as third parties, so if all team Hunter did was send Trump a cease-and-desist letter, then the law typically bars any defamation suits based on it, even if it is filled with ridiculous lies.
But suppose—speaking entirely hypothetically—one of the lawyers for team Hunter also gave a copy to ABC News and Krassenstein. Well, now they have publicized it, including the false allegation that Trump incited violence. So, one might see a counter-suit. That is one reason why Hunter might not have the chutzpah to sue (although Team Hunter is already showing a galling amount of chutzpah even sending the letter). Another reason is that any lawsuit would open Hunter Biden up to discovery.
Krassenstein asks the reasonable question: Should Trump back off?
We will say this. Trump should certainly be careful about making accusations that aren’t provably true.
For instance, just because cocaine was found at the White House doesn’t mean it was Hunter Biden’s. Seriously, while any rational investigator would put Hunter on the list of suspects until and unless the investigation could eliminate him as a suspect, we would be honestly shocked if Hunter Biden is the only current or recovering cocaine addict to visit the White House recently.
On the other hand, take this famous hypothetical:
A writes to B about his neighbor C: `He moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand. I think he must be an alcoholic.'
The claim that C is an alcoholic is not defamatory if every other statement in that paragraph is true. That is because in that context the claim that the person is an alcoholic is a conclusion based on disclosed facts. Such a conclusion is considered a form of opinion (it is A’s opinion that seeing a guy drinking twice means he is probably an alcoholic), and a mere opinion cannot be defamatory as a matter of law. Now, with all that in mind, we think we found the post on TruthSocial that they are complaining about that said the cocaine found in the White House is Hunter’s:
Well, Trump might arguably be drawing a conclusion based on disclosed facts. He is saying that that there are cameras all over the White House, and, therefore, if the ‘tapes’ (more likely, digital files) are not released then it was basically Hunter’s cocaine. Now, we have told you a minute ago that we don’t agree with that logic, but a court might find that Trump has disclosed the basis of his conclusion and therefore expressed a protected opinion.
Naturally, there were reactions:
Legally 45 has to stop , that much I know.
— Alida#Prosecute45🇺🇸🇺🇦 (@palomacreative) July 14, 2023
It’s always great to see the left constantly arguing why people have to shut up.
Lol he’s just gonna ramp it up
— The iPad Kid (@therealzoomers) July 14, 2023
We doubt Trump will shut up about it.
Hunter is a public figure and defamation laws are far more lax for this type of person. I cant recall everything Trump has been called or the times he has been threatened and no recourse. Seems like deflection and projection to me. BTW, tell Bro to retract his jobs tweet
— E-Mo Drags The Interstate (@EMo_Drags_The_l) July 14, 2023
This C&D is written like a political op-ed, and legally isn’t worth the paper it’s printed on.
— Brandon Herrera (@TheAKGuy) July 14, 2023
Let’s see how “stop being mean” goes over in court 😂
Lololol this is rich.
— Mike Sperrazza (@MikeASperrazza) July 14, 2023
Known hooker addled drug addict is sending a cease and desist letter about being defamed to the person that the media has defamed most in history.
For us, this raises another potential problem for Hunter. There is a little-known doctrine known as defamation proofing. Defamation is ultimately about reputation—someone said something false about you that harmed your reputation. But there are some people whose reputation is so terrible that it is impossible to harm their reputation any further.
For instance, in Jackson v. Longcope, 476 N.E. 2d 617 (Mass. 1985) and we cannot emphasize this enough, a convicted serial killer claimed that he was defamed in the coverage of his crimes. A description of just part of his complaint should be sufficient to show you how ridiculous his case was:
On May 24, 1977, Jackson wrote a letter to the defendant Longcope demanding a correction of the statement that the shootout with the Cambridge police occurred during a stolen car chase and the statement that all the victims of ‘the hitch-hike murders’ were raped and strangled. He asserted that the car was not stolen, that not all the hitch-hike murder victims were raped, and that not all were strangled.
(Sets sarcasm to 11.) Sure, according to him, he didn’t rape all of the women he killed and while he did have a police chase and shoot-out, he didn’t steal that car. Now, don’t you feel better about this guy? All things considered he sounds like the kind of guy to babysit your teenage daughter, right?
Sarcasm aside, the court determined, when looking at the things he unquestionably did do, that his reputation was so poor that it was impossible to harm it further in any way that the law should vindicate. Therefore, he was found to be defamation proof and summary judgment was granted. We have researched this doctrine in the past, and it is not invoked very often. We saw one case involving essentially a mafioso who wrote a whole book talking about his evil deeds being found defamation proof, as was James Earl Ray, the murderer of Martin Luther King, Jr. One suspects Trump’s lawyer would strongly consider whether Hunter belongs in that kind of company—should any suit be filed.
How do we feel about letters that demand people stop defaming someone without stating precisely what factual claim is false? https://t.co/r7FwNzLBxa
— David "JoelKatz" Schwartz (@JoelKatz) July 14, 2023
This demand letter is exactly why democrats shouldn’t be allowed to be in any position of power. Democrats truly believe that you bear responsibility for other peoples actions. Remember this only is applied to you it is never applied to them because their the morally virtuous… https://t.co/t8ICeXBbBU
— Distressed Pickle🎈 (@DistressedPickL) July 14, 2023
We need targets of his stochastic terrorism to jointly follow a class action and BANKRUPT him. https://t.co/FVICQpC70K
— Tummler (means... Connector & Troublemaker) (@tummler10) July 14, 2023
That’s not an actual legal cause of action. Brandenburg forecloses any legal claim that someone is committing stochastic terrorism. And any journalist who bandies about that term should hang his or her head in shame.
Trump will derisively talk about the letter as loudly and abusively as he can. And this what people want for their president. I shake my head...
— Linda Maxwell (@lindasuejoy) July 14, 2023
Trump absolutely should not be cowed into silence, although he should always strive to be as accurate as possible.
Hunter Biden is irrelevant. 😂
— 𝓣 𝓞 𝓟 𝓓 𝓞 𝓖 𝓔 🪬 (@TOPDOGE007) July 14, 2023
If Hunter’s behavior didn’t implicate his father in any way, or any other issue of public importance, we would tend to agree. We believe that the families of politicians should be generally off limits. However, there are credible allegations that Hunter was a conduit of bribes to his father, and there are serious questions of whether Hunter is being treated like other person suspected of criminal conduct. Indeed, the recent Missouri v. Biden litigation in Louisiana (which we discussed here) focused several paragraphs on how the FBI suppressed the story of Hunter Biden’s laptop just before the last election, raising the serious constitutional question of whether Joe Biden would be president today if the FBI hadn’t interfered. That makes his conduct highly relevant.
Indeed, even this attempt to silence a presidential candidate makes Hunter relevant, whether one agrees with the substance of this letter or not.
ED: pic.twitter.com/FJxD1AVsBY
— JoanOfArc (@JoanOfArc287) July 14, 2023
🤣🤣🤣🤣🤣. Let them sue.
— camsterdam (@camsterdam) July 14, 2023
The discovery will be worth it (and shock libs).
You would think Hunter wouldn’t be that dumb but….. What a gift to TRUMP🇺🇸🇺🇸🇺🇸!! Truth is still allowed to shared on some platforms. What could Hunter possibly be upset by? https://t.co/rkgfwaWK7s
— Chris Faye (@chrisfaye622) July 14, 2023
Sorta sounds like a threat that the justice system will continue to be wielded to hinder a viable political candidate. https://t.co/wZqxaly1c5
— Austin Bury (@aburyFL) July 14, 2023
This does raise the question of whether this is just a campaign tactic by the Joe Biden reelection campaign. We would be very curious to learn how the lawyers representing Hunter are being paid.
Hat tip to @just_mindy.
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