Perhaps you haven’t heard about the letter that Sarah Palin’s lawyer sent Random House, so let me begin by filling you in on the background:
Joe McGinniss last year made headlines by renting the house next door to the Palin family in Wasilla. McGinniss recently published an anti-Palin book that was almost universally panned by critics as an ill-sourced smear job and it appears to be a commercial flop. Some of the more sensationalized sex-and-drugs-and-crime stuff in the book made headlines for a few days, but once other journalists saw what sloppy work McGinniss had published, his book was dismissed as an overhyped hatchet-job. Even such notorious Palin-haters as Keith Olbermann and Rachel Maddow have snubbed McGinniss. And then …
Andrew Breitbart published an e-mail that McGinniss sent in January to Jesse Griffin, a name that should ring a bell with American Spectator readers. It was Griffin who peddled a bogus Palin divorce rumor in August 2009, which was almost instantly exposed as a lie. Griffin then lost his job as a kindergarten teaching assistant when it was revealed that Griffin had been writing obscene things about pornography and masturbation on his pseudonymous anti-Palin blog. Two months after he was exposed as a lying pervert, however, Griffin boasted on his blog that he’d met McGinniss in Alaska and that McGinniss had proclaimed himself a “huge fan” of Griffin’s blog.
So in January of this year, McGinniss wrote a nearly 900-word e-mail to Griffin, explaining that lawyers for Random House had pointed out that several of the anecdotes in McGinniss’s manuscript were completely unsubstantiated and nothing more than “tawdry gossip.” Yet as Breitbart demonstrated, several of these anti-Palin smears were included in the published edition of McGinniss’s book, without any apparent additional reporting by McGinniss. Palin’s brother, Chuck Heath Jr., issued a statement calling McGinniss’s book “one lie after another.” Heath’s statement described how McGinniss “included in his book comments falsely attributed to me by one of his unnamed sources” and didn’t even contact Heath to verify whether he had said what these “sources” said he had said. As I wrote Saturday, that’s “journalistic malpractice of the worse sort.”
Perhaps not realizing that he was making a bad situation worse, McGinniss responded to the publication of his e-mail to Griffin by telling Jon Bershad of Mediaite that he “published only those allegations which I found to be credible.” With this statement, McGinniss professed himself an authority on the credibility of allegations against Sarah Palin — and this is the same McGinniss who is a “huge fan” of Jesse Griffin’s discredited blog!
As a judge of what is “credible,” then, McGinniss is a dubious authority, and his e-mail to Griffin looks very much like Exhibit A in the prospective defamation case described yesterday in the letter Palin attorney John Tiemessen sent to Random House:
“[S]ince both your company, and the author, clearly knew the statements were false, admitted they had no basis in fact or reality, but decided to publish in order to harm Governor Palin’s family, you and Mr. McGinniss have defamed the Palins. This letter shall serve as written notice … that a claim may be brought against you, your company and Mr. McGinniss for knowingly publishing false statements.”
Tiemessen’s letter warned Random House not to destroy any communications which might be relevant to such a lawsuit and is therefore (lawyerly types tell me) what is known as a “litigation hold” notice. Tiemessen’s letter is not, however, a “threat” of a lawsuit, no matter how many times headline writers have used that word to describe it. What he sent Random House was the first step toward “a claim that may be brought,” a legal communication necessary to preserve evidence and prevent Random House from covering up evidence that that their editors, executives and lawyers knew of concerns about the factuality of McGinniss’s book. The letter strikes me as tantamount to “see you in court.”
However, the seriousness of Tiemessen’s letter and the potential legal vulnerability of Random House have been mocked and derided by those suffering from Palin Derangement Syndrome. For more than three years, Palin’s enemies have become accustomed to seeing bloggers and tabloids spread libelous assertions and obscene speculation about the former Alaska governor with no apparent repercussions. Having convinced themselves that Palin is evil incarnate, the PDS sufferers are apparently willing to believe any heinous smear that McGinniss published. And so their reactions have included such nonsense as David Magee’s column today:
But here’s the problem with suing McGinnis and the publisher: Palin would have to prove that the allegations in the book are all lies if she proceeded with a lawsuit.
She’s a public figure — considerably so — and it’s hard to prove libel when you are in the public eye in the first place… .
She would have to clear her name completely.
This is absurd. If the Palins do sue, their suit will specify defamatory statements in McGinniss’s book that they believe they can prove false. They do not have to prove every allegation false, nor would Sarah “have to clear her name completely.” Only evidence and testimony relevant to those disputed allegations will be admissible, and so there is no basis for Magee’s assertion that Palin would have to address every lurid claim in the McGinniss book.
Thanks to McGinniss’s e-mail to Griffin, the Palins have Random House in a bad situation, and the only question is whether the Palins will stop short of a court trial against the publisher. It is worth noting, however, that Tiemessen cited an Alaska law in his letter to Random House. So the expense of flying McGinniss, Random House editors, executives and lawyers to Alaska would be added to the costs for Random House to defend such a case. And these witnesses would almost certainly be subpoenaed to testify, because of a comment at a left-wing blog Sunday — before the letter from Tiemessen was sent — in which McGinniss stated:
Bottom line: not only my editor, but Random House attorneys verified every source, in some cases speaking directly to the sources themselves. I have dozens of hours of recorded conversations. Random House attorneys listened to them all, then made an independent judgment about the trustworthiness of the sources. No material from an unverified source is included in the book.
Air travel to Alaska isn’t cheap. And exactly how Random House’s attorneys “made an independent judgment about the trustworthiness” of sources they had never even met would certainly make for lively court proceedings, if such a case ever went to trial.
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