Is truth a defense to libel, a defense to making a false affidavit

[micky]

A story is being circulated about a congressional candidate that he was
having an affair and someone knew about it and blackmailed him to get
his vote on local legislation. The only "evidence" is the word of
someone who claims to be a blackmailer, and a video which shows from
behind, in the dark, some unidentifiable person walkilng to a storage
locker. The alleger "later told The Denver Post that he was comfortable
admitting to blackmail because he believed the statute of limitations
had passed and he could no longer be charged with a crime."

To say, "Lauren Boebert hired this guy to make this false claim" would
be slander or libel unless it could be proven and it's very hard to
prove even if true.

What about "I THINK Lauren Boebert hired this guy to make a false
claim". That is a true statement, I do think so, and aiui, truth is
always a defense to libel.


For that matter, they keep saying that the attorney who signed an
incorrect affidavit saying that all of trump's government papers had
been turned over to the DOJ was in big trouble, but the statement said
approximately "according to what I was told". If she's willing to say
who told her, how can she be in trouble?

--
I think you can tell, but just to be sure:
I am not a lawyer.

[Stuart O. Bronstein]

micky <mis...@fmguy.com> wrote:

> A story is being circulated about a congressional candidate that
> he was having an affair and someone knew about it and blackmailed
> him to get his vote on local legislation. The only "evidence" is
> the word of someone who claims to be a blackmailer, and a video
> which shows from behind, in the dark, some unidentifiable person
> walkilng to a storage locker. The alleger "later told The Denver
> Post that he was comfortable admitting to blackmail because he
> believed the statute of limitations had passed and he could no
> longer be charged with a crime."

Your Re line has nothing to do with the body of your post. The above
story is about a congressional candidate - a voluntary public figure.
While truth is normally a defense, with a public figure all you need
is a reasonable basis to believe it's true. In other words a public
figure can only prevail if he essentially proves that the person
making the false claim knew he was lying.

> To say, "Lauren Boebert hired this guy to make this false claim"
> would be slander or libel unless it could be proven and it's very
> hard to prove even if true.

Again, she's a public figure. It would be very hard for her to
successfully sue someone for that.

> What about "I THINK Lauren Boebert hired this guy to make a false
> claim". That is a true statement, I do think so, and aiui, truth
> is always a defense to libel.

Claiming something is your opinion when you spout defamation does not
always remove the legal stench. If it is said in a way that conveys
the idea that others should also have the same opinion, it may not
work as a defense.

> For that matter, they keep saying that the attorney who signed an
> incorrect affidavit saying that all of trump's government papers
> had been turned over to the DOJ was in big trouble, but the
> statement said approximately "according to what I was told". If
> she's willing to say who told her, how can she be in trouble?

This is a completely different matter. Attorneys have legal
obligations that others don't. Her just saying that this was what
she was told will not necessarily absolve her, unless she had a
reasonable reason to believe what she was told, was true.

--
Stu
http://DownToEarthLawyer.com

[Elle N]

On Thursday, October 20, 2022 at 12:56:45 PM UTC-5, micky wrote:
> For that matter, they keep saying that the attorney who signed an
> incorrect affidavit saying that all of trump's government papers had
> been turned over to the DOJ was in big trouble, but the statement said
> approximately "according to what I was told". If she's willing to say
> who told her, how can she be in trouble?

Per the Washington Post on October 13, "[Trump attorney Christina] Bobb signed a sworn statement to the Justice Department saying that a “diligent search was conducted” and that “any and all responsive documents accompany this certification.” Bobb’s statement included a caveat that this was “true and correct to the best of my knowledge” — a phrasing that she reportedly insisted upon because she was uncertain and that could insulate her legally. But the Justice Department is surely interested in how Bobb arrived at this conclusion. "

What do the attorneys' Rules of Professional Conduct in Florida say here? Rule 4.3-3 "Candor Toward the Tribunal" seems to be the most relevant rule. The Rules include this comment on Rule 4.3-3:

Representations by a lawyer
"An advocate is responsible for pleadings and other documents
prepared for litigation, but is usually not required to have personal
knowledge of matters asserted therein, for litigation documents ordinarily
present assertions by the client, or by someone on the client’s behalf, and
not assertions by the lawyer. Compare rule 4-3.1. However, an assertion
purporting to be on the lawyer’s own knowledge, as in an affidavit by the
lawyer or in a statement in open court, may properly be made only when
the lawyer knows the assertion is true or believes it to be true on the basis
of a reasonably diligent inquiry. There are circumstances where failure to
make a disclosure is the equivalent of an affirmative misrepresentation.
... "

See https://www-media.floridabar.org/uploads/2022/08/2022_02-AUG-RRTFB-8-1-2022.pdf

The rules of professional conduct in any given state have the force of statute.

Attorney Bobb's problems are, big picture, two-fold. First, was her inquiry "reasonably diligent"? Second, by signing this affidavit without perhaps being "reasonably diligent," did Bobb herself obstruct justice?

I believe Bobb has said she signed the statement based on the assurance of other attorneys and nothing more. Is this "reasonably diligent"? If I were the judge, I'd have my clerk review the case law, which I expect would say that, no, the assurance of others, with nothing more, does not represent 'reasonable diligence.'

Was this obstruction of justice? If I were on a grand jury considering whether to indict Christina Bobb, I might very well vote to indict for obstruction of justice. As a layperson, what Bobb did both cost taxpayers a lot of money and put national security at risk, all due to her IMO resisting/fighting/rejecting/yada and so obstructing the inquiry made by the justice department.

On the other hand, I see also contentions that Bobb signed the statement as a custodian rather than an attorney. See https://www.theguardian.com/us-news/2022/oct/10/trump-lawyer-christina-bobb-mar-a-lago-certify-documents . In which case when Bobb signed the statement, she was not acting as Trump's attorney. Meaning the Rule of Professional Conduct might not apply. On the third hand, nothing supports Bobb having become the custodian of the classified and other records.