By Mike Masnick
We’ve seen all sorts of crazy defamation claims over the past few years, but this may be the dumbest. You may have heard that our thin-skinned President is very unhappy about various polls showing that the American public isn’t much interested in buying what he’s selling. He even hired a pollster, McLaughlin & Associates, with a notoriously terrible record to come up with new polls after seeing more polls that don’t reflect the reality he’d like. Which, of course, is his prerogative. It’s easier to hide from the truth if you can make up lies to surround yourself with.
The only problem: the other stuff is still out there. And so the Trump Campaign took things up a notch, sending CNN a letter demanding it retract the poll and apologize. CNN reported on this, but didn’t share the full letter. In what can only be described as a self-own, a legal adviser to the Trump Campaign, Jenna Ellis, decided to publish the letter she had sent to CNN. She claimed she was posting the full thing on Twitter because CNN’s reporting was an “attempt to skew the narrative.”
Except… the letter itself makes the story look even worse. The CNN article did only quote parts of the letter, the silly claims “it’s a stunt and a phony poll to cause voter suppression, stifle momentum and enthusiasm for the President” but left out the insane legal threat that the poll was defamatory. Yes, the poll. Defamatory. A poll? Defamatory. That is not how any of this works. But, from the letter:
The poll is intentionally false, defamatory and misleading, and designed to harm the Donald J. Trump for President, Inc. campaign.
You are officially on notice of this dispute and therefore are required to undertake steps to affirmatively preserve, and not delete, any and all physical and electronic documents, materials, information, and data that pertain in any way to the June 8, 2020 poll, including without limitation all emails, text messages, instant messages (IMs/DMs), letters and memoranda, articles, and social media postings (including all drafts as well as final version of all written communications), as well as other types of written, physical and digital materials, including handwritten notes, typerwritten notes, summaries, charts, receipts, audio recordings, video recordings, photographs, telephone call logs, calendar entries of al [sic] types, financial data and information, etc. that pertain in any way or might otherwise be relevant or related to the foregoing matters. All sources of documents, materials, information, and data should be preserved, including without limitation, physical files, electronic files, computer servers, email servers, backup tapes, cloud storage, personal computers, hard drives, smart phones, tablets, and other types of storage devices including external drives, thumb drives, zip drives, disks and DVDs. Failure to affirmatively preserve such documents and materials could result in severe sanctions imposted [sic] by a court which could include, among other remedies, monetary sanctions, evidentiary sanctions, issue sanctions and/or the striking of answer and entry of default judgment.
Yup, CNN. Make sure you retain those zip drives. What is this, 1996?
Anyway, a poll is not defamatory. By definition. And, of course, sending such a bogus defamation threat letter, full of that lawyerly garbage, all it’s really done is call that much more attention to just how badly Trump appears to doing right now, according to public perception.
Meanwhile, once the campaign published its letter, CNN decided to publish its response, written by the amazingly named General Counsel of CNN, David Vigilante:
To my knowledge, this is the first time in its 40 year history that CNN has been threatened with legal action because an American politician or campaign did not like CNN’s polling results.
To the extent we have received legal threats from political leaders in the past, they have typically come from countries like Venezuela or other regimes where there is little or no respect for a free and independent media.
CNN is well aware of the reputation of John McLaughlin and McLaughlin & Associates. In 2014 his firm famously reports that Eric Cantor was leading his primary challenger Dave Brat by 34 points only to lose by 11 points – a 45 point swing. The firm currently has a C/D rating from FiveThirtyEight.
In any event, McLaughlin was able to evaluate and criticize CNN’s most recent poll because CNN is transparent and publishes its methodology along with its polling results. Because of this, McLaughlin was free to publish his own critique of CNN’s analysis and share his criticisms across the U.S. media landscape. That’s how free speech works. It’s the American way.
Your letter is factually and legally baseless. It is yet another bad faith attempt by the campaign to threaten litigation to muzzle speech it does not want voters to read or hear. Your allegations and demands are rejected in their entirety.
Yes, but how do you really feel?
Somehow, I get the feeling that a federal anti-SLAPP law is unlikely under the current President.