It was a telling moment in the GOP’s continual descent into a post-truth party in the Donald Trump era. Even though multiple fact-checkers debunked a claim that the Taliban hanged a man from a U.S. helicopter left behind in Afghanistan, many Republicans who promoted the claim refused to back off it. And Donald Trump Jr. ultimately went so far as to replace the banner on his Twitter page with a mock Biden campaign logo featuring an illustration of the supposed helicopter hanging.
The same day, though, this same strategy landed Trump Jr. some legal problems — and earned him a rebuke from a judge.
For the past two years, a GOP Senate candidate in West Virginia has been suing Trump Jr. for defamation. At issue is Trump Jr. claiming during the 2018 campaign that Don Blankenship, whom Trump and his allies opposed in the primary, was a “felon.” Blankenship was charged with felonies related to an explosion at a mine he ran, but he was convicted only on a misdemeanor count.
Trump Jr.’s lawyers sought to have the case dismissed, but U.S. District Judge John Copenhaver Jr. rejected that Wednesday and said the case could move forward.
The reason? It’s because he believed there was substantial evidence that Trump Jr. might have known the claim to be false and said it anyway.
Eugene Volokh has a rundown on the judge’s ruling. Here are some crucial parts:
To plead actual malice, therefore, [a plaintiff] must plausibly allege that [the defendant] [published] the [material] with a ‘high degree of awareness’” that it was “likely” false. Recklessness may be found where there are obvious reasons to doubt the veracity or accuracy of information.[P]laintiff alleges facts in support of the inference that Trump, Jr. issued the tweet with knowledge of its falsity: (1) Trump, Jr. was involved in high-level discussions about the primary campaign in West Virginia, (2) he made the statements shortly after one such meeting, (3) the comments were made as part of a string of false comments by sophisticated party operatives, (4) the true facts were widely available on the internet and had been widely reported, and (5) he never retracted or corrected the false tweets, despite being informed of their falsity.
“He never retracted or corrected the false tweets, despite being informed of their falsity.” That sounds familiar.
On May 3, 2018, Trump Jr. responded to a Twitter user tweeting about the race by saying that Sen. Joe Manchin III (D-W.Va.), the incumbent, had “probably never run against a felon.” Blankenship responded to a tweet from Trump Jr. the next day, informing him that “I have never been convicted of a felony.” News reports detailed the back-and-forth.
Trump Jr.’s tweet, though, remained live until at least late June 2018, according to the Wayback Machine — long after Blankenship lost the primary on May 8 of that year.
The judge went on to say he agreed that the Blankenship legal team’s arguments were “sufficient at this stage to create a ‘plausible inference’ that Trump, Jr. published his tweet with knowledge of its falsity.”
The judge noted that Trump Jr. had even promoted a CNN story that said Blankenship had been convicted only of a misdemeanor, saying this supported the idea that Trump Jr. might have or should have known the truth:
In his quote tweet [which forms the basis of this claim], Trump, Jr. concedes knowledge of the plaintiff’s criminal history and association with the mine explosion. The CNN news article linked in the quote tweet reports that the plaintiff “had just recently finished serving a yearlong sentence following a misdemeanor conviction for his involvement in the deadliest US mine explosion in four decades.” Based on this article that Trump, Jr. himself cites within his own quote tweet, there is a plausible inference that he had knowledge of the plaintiff’s conviction history in association with the mine explosion, and in particular that the conviction was a misdemeanor, not a felony.
None of this means the lawsuit is bound to or even likely to succeed. As Trump Jr.’s legal team notes, many have incorrectly called Blankenship a felon. One reason for the confusion appears to be that Blankenship did receive a lengthy prison sentence — one year — which is the maximum allowed for a misdemeanor. Blankenship has also sued a multitude of media outlets, including The Washington Post, and others, over the same thing.
A key difference, though, as with much of the whataboutism over media fact-checking of the Trumps and their allies, is that many of the media outlets corrected the information. Trump Jr.’s M.O., by contrast, is to press forward even after his many false claims are debunked. The judge also goes further in this case in stating there is evidence Trump Jr. would have known the truth.