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.
