vision 2020

Tulsi Gabbard Unlikely to Win Her Defamation Lawsuit Against Hillary Clinton

Defendant and plaintiff in a defamation suit. Photo: Chip Somodevilla/Slaven Vlasic/Getty Images

There’s absolutely no doubt that 2016 Democratic presidential nominee Hillary Clinton and 2020 Democratic presidential candidate (and lame-duck member of Congress) Tulsi Gabbard really, really don’t like each other. But Gabbard, at least, is not satisfied to deal with Clinton’s insults aimed at her by offering her own; she’s now filed a defamation lawsuit in a Manhattan federal court demanding a minimum of $50 million in damages (presumably in lost campaign contributions and other resources of valuable to a presidential candidate) attributable to remarks HRC made about her on an October 2019 episode of the podcast Campaign HQ With David Plouffe.

There’s clearly some confusion about what Clinton actually said and meant. The lawsuit tracks initial reporting (in the New York Times among other outlets) suggesting that Clinton squarely labeled Gabbard as a “Russian asset” being “groomed” by the Kremlin to run as a third-party candidate splitting the anti-Trump vote in 2020. But those initial reports were corrected, as MarketWatch observed:

Last week, a number of media organizations, including the New York Times, CNN and Politico, ran reports saying Clinton told the podcast “Campaign HQ with David Plouffe” that Russians were “grooming” a female Democratic candidate — widely assumed to be Gabbard — for a third-party run to play a potential spoiler in the 2020 election.

But apparently Clinton meant Republicans — not Russians — were doing the grooming.

The New York Times ran this correction Wednesday night: “An earlier version of this article described incorrectly an element of Hillary Clinton’s recent comments about Representative Tulsi Gabbard. While Mrs. Clinton said that a Democratic presidential candidate was ‘the favorite of the Russians,’ and an aide later confirmed the reference was to Ms. Gabbard, Mrs. Clinton’s remark about the ‘grooming’ of a third-party candidate in the 2020 race was in response to a question about the Republicans’ strategy, not about Russian intervention.”

Gabbard’s lawsuit suggests Clinton left, and intended to leave, a different impression:

The ordinary and average person who heard and read the Defamatory Statements understood them to be making serious charges against Tulsi: that Tulsi is a tool of, and perhaps an agent of, the United States’s geopolitical rival Russia.

For what it’s worth, Gabbard’s own initial response to reports about the podcast were more aggressive than wounded:

However you adjudge Gabbard’s complaint from a factual or ethical perspective, under a well-established Supreme Court precedent, set in New York Times Co. v. Sullivan in 1964, the First Amendment puts some severe limitations on defamation suits brought by public officials. Here’s how CNN puts it:

“Under settled Supreme Court precedent, a defamation claim by a public figure like Tulsi Gabbard requires proof on her part that the speaker not only said something that was false, but did so ‘with knowledge that it was false or with reckless disregard of whether it was false or not,’” said Steve Vladeck, a CNN contributor and Professor of Law at the University of Texas School of Law. “That’s an incredibly high standard to meet, and rightly so.”

Given the ambiguities about what Clinton said or was insinuating, establishing in court that she was deliberately lying while smearing Gabbard would be even more difficult. But the odds are high that the suit is intended to score Gabbard points in the court of public opinion rather than the Southern District of New York. Let’s just say that HRC is not the most popular figure in Democratic politics at this particular moment, especially after her most recent reported comments on Bernie Sanders in a soon-to-be-released documentary (“He was in Congress for years. He had one senator support him. Nobody likes him, nobody wants to work with him, he got nothing done. He was a career politician. It’s all just baloney and I feel so bad that people got sucked into it.”) And indeed, Gabbard’s lawsuit contends Clinton’s attacks on her are part of a vendetta aimed at those who endorsed Sanders in 2016:

“Clinton — a cutthroat politician by any account — has never forgotten this perceived slight,” says Gabbard’s suit, which also names the congresswoman’s presidential campaign committee as a plaintiff.

Gabbard’s limited constituency in the 2020 contest is likely composed overwhelmingly of people who share her violently negative opinion of HRC, and if she has any growth potential (this side of the third-party general election contest that Clinton and others suspect she’s cooking up), it’s probably among others who share it as well. As the president of the United States established in his business career, sometimes litigation, even if it’s unsuccessful, can be a valuable attention grabber. And at this point, Gabbard can use all the attention she can get.

Gabbard Unlikely to Win Defamation Suit Against Hillary