December 4, 2011

A Very Public Caining

Hatched by Dafydd

Right. So Herman Cain is O-U-T out, and we still don't know whether all the charges lodged against him, from sexual harassment to sexual battery, with a stop-over on the cheatin' side of town, are true; or whether some or perhaps the entirety are a fusillade of fabrications, phantasms, confabulations, and falsehoods.

But we will know -- and very soon, too. I have in mind an infallible test, one that the Godfather might not even realize he's taking.

There is little that a candidate for public office can do to punish a political operation that is savaging the principal. There just aren't enough hours in the day to (a) push a positive public-policy agenda for the voters, (b) respond to political attacks by competitors and launch his own counterattacks, and (c) chastise third-party liars and libelers clandestinely dispatched by ideological enemies.

He just has to shrug off (c) and hope that nobody believes the slanders anyway; he simply doesn't have the option of nuking the craven dastards properly -- that is, while he's still in the game scrambling for nomination or election.

But it's all topsy-turvey once a candidate drops out of the running. At that point, he has given up all hope of election this cycle... so he has nothing left to lose by crushing his tawdry traducers. In fact, if he is to run again in the future with any hope of success, he is obliged to clear his good name; else his next opponent will cheerfully resurrect the old and unanswered charges, jump-starting the scandal serenade once again. The once and never again candidate would be forever barred from running for president, governor, congressman, or Chairman of the Elves, Leprechauns, Gnomes, and Little Men's Chowder & Marching Society.

Thus we come to Mr. Cain, who abruptly announced yesterday that he is no longer in play to be President of the United States... who thus is also finally free to fully answer his accusers -- most specifically Miss Ginger White, a longtime "friend" who now claims to have engaged in a 13-year sex romp with the erstwhile CEO of Godfather Pizza.

And so at last we come to the test: Now that Cain has dropped out of the race, if he is an innocent victim of calumny, he must go after Miss White in court.

If Cain sues White for libel and slander, her only defense would be truth. She certainly cannot claim never to have said that they had a long-term affair; she said it on national TV. Nor can she claim that she caused him no damages; arguably, it cost him his shot at the presidency! Neither can she rely upon his status as a public figure (which of course he is), because she certainly knows for a fact whether they had an affair; therefore, if they did not, yet she said they did, then that would certainly satisfy the requirement of "actual malice."

No, no, and no; her only defense is to claim truth. But in such a case, my non-lawyer understanding is that truth is an "affirmative defense"... meaning the burden of proof shifts to the defendant, Miss White, to prove that they did indeed have an affair. Cain would not have to prove they didn't; White would have to prove that they did. If she could not, she would lose her case; White would be slapped with potentially ruinous damages, and more to the point, Herman Cain would be utterly vindicated.

In fact, although there is no logical connection, if a court were to find Miss White liable for libel, or if she 'fessed up and apologized, that verdict would cast grave doubt in most people's minds about all the other accusations against Cain as well; that's just how people think. If the worst charge against him is demolished as a mean-spirited, vicious falsehood, who's going to believe the lesser charges? Only those who never would have voted for him anyway.

Contrariwise, if the dame really can produce the complete cell-phone records she claims to have -- including the content of text messages and e-mails that show it really was an affair, not merely friendship -- then Cain himself would surely know it. In that case, he might make loud noises and wave his hands in the air, but he would never run the risk of actually filing a lawsuit he was destined to lose. Fighting such a high-profile case and losing it would crush his reputation far flatter than raging to the skies but avoiding a court of law like an atheist shies away from a cross.

So that is the acid test of Herman Cain's veracity and fidelity: Simpy put, if he files a charge of libel and slander in court and dares White to claim "truth" as a defense, then he is very likely innocent of the charges.

But if he fumfahs around, rattling the bars of his cage but never actually making a federal case out of it, then I will fairly conclude that he's guilty on all counts.

As I said, I reckon we'll know pretty soon; Cain's lawyer, Lin Wood, has already demanded those records from White; but he hasn't pulled the trigger yet. Now that Cain is a civilian once more, he's going to have to either fish or get off the pot.

And then we'll all know whether he was a man with a mission -- or a man with a secret.

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, December 4, 2011, at the time of 4:48 AM

Comments

The following hissed in response by: eliXelx

Daffydd. The real villain in all this is POLITICO, who undoubtedly geed-up these women.
Herman should not claim damages from the "lady" in question; she has nothing to give. No, he must get from her and all the others the true instigators behind the information; and from there must get damages out of them.
I am no lawyer, so I don't know if this is possible; but one has to wonder if there may not be a way to expose the black heart behind the dirty trick....

The above hissed in response by: eliXelx [TypeKey Profile Page] at December 4, 2011 5:30 AM

The following hissed in response by: Dick E

Yeahbutt…

First, Mr. Cain merely “suspended” his campaign, he didn’t terminate it. According to the coverage I saw, this bit of legal hairsplitting means that he can resume his campaign and, for one thing, start getting matching funds after the first of the year. Truly ending the campaign would have precluded this.

Second, if Mr. Cain decides to pick up the green, scaly gauntlet, Miss White could get Gloria Allred and her ilk to represent her pro bono in order to (a) cost him a bundle in legal fees, (b) dig up every potentially embarrassing tidbit going back to Mr. Cain’s high school days (that means anything that might remotely bear on his character -- not just dalliances) or, more likely, (c) some combination of the two.

(My legal credentials are equally as strong as yours, Dafydd, so ymmv.)

And remember (as will surely the electorate) that Miss White is just one of five allegators (or are they crocaccusers?) Even if he wins, the suit keeps this issue in the public eye.

I’m afraid Herman Cain’s days of running for public office are at an end.

The above hissed in response by: Dick E [TypeKey Profile Page] at December 5, 2011 1:10 AM

The following hissed in response by: Jay Tea

I have a theory that is, admittedly, way out there, but fairly consistent with what we know about Cain and White. Cain is also a minister; what if his relationship with White was pastoral? He'd be bound by confidentiality, so he can't respond fully. And it would explain why he hasn't told his wife much about it.

Likely? I dunno. But I still think it possible.

J.

The above hissed in response by: Jay Tea [TypeKey Profile Page] at December 8, 2011 8:08 AM

The following hissed in response by: wtanksleyjr

Jay, ministers do have an obligation of confidentiality -- but they also have an obligation of propriety, which means they should be able to point to an enforced policy that they were never out of possible eyesight alone with a woman they were counseling (i.e. they had a glass window in the door and a secretary who was required to check every few minutes).

As for the main topic... His campaign is dead, and he has killed it. Do we smell nothing as yet of the political decomposition? He killed it by having his lawyer respond to the latest accusation by saying "that is not an appropriate question to ask a politician" rather than saying "no".

-Wm

The above hissed in response by: wtanksleyjr [TypeKey Profile Page] at December 10, 2011 9:09 PM

The following hissed in response by: Jay Tea

Wm, you hit upon my second point -- Cain's fault wasn't any original offense, It was because he didn't handle it with the aplomb and skill of, say, Bill Clinton and his "bimbo eruptions." Which I find especially distasteful, because Clinton was actually guilty of the charges.

Cain didn't react like a polished politician. I see that as a positive.

J.

The above hissed in response by: Jay Tea [TypeKey Profile Page] at December 11, 2011 3:20 AM

The following hissed in response by: Beldar

State law typically makes truth an affirmative defense — one that the defendant must plead and prove by a preponderance of the evidence — at least when the plaintiff is a private figure and the defendant is not a "media defendant." But since Herman Cain is unquestionably a "public figure," the First Amendment, as interpreted by the SCOTUS in New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964), overrides any contrary state law, and requires the public-figure defamation plaintiff to prove the falsity of the allegedly defamatory statement as part of his case in chief, on which he has the burden of proof. Indeed, to recover, a public-figure defamation plaintiff must also prove "actual malice" — defined in this context as "with knowledge that it was false or with reckless disregard of whether it was false or not." The falsity of the statement is a necessary predicate for an actual malice finding, and the Sullivan Court expressly rejected the notion that the First Amendment's concerns could be adequately vindicated by permitting the use of "truth" as an affirmative defense on which the defendant has the burden of proof.

Thus, if at the close of the evidence the factfinder concludes that the probative evidence of truth and falsity exactly balanced, the public-figure plaintiff loses. He must prove, by a preponderance of the evidence (typically defined as "the greater weight and degree of the credible evidence"), the falsity of the allegedly defamatory statement, and a tie goes to the defendant.

Even if, however, a public-figure plaintiff is confident he can prove actual malice (including falsity) as part of his case, there are many, many, many other excellent reasons not to sue for defamation. At the top of that list is that a defamation plaintiff very nearly forfeits all remaining expectations of personal or professional privacy: Because the entirety of the plaintiff's reputation is at issue, everything the plaintiff has ever said or done (or perhaps even failed to do!) is fair game for exploration during pretrial discovery. You may think political candidates have already forfeited their privacy and that court-ordered responses to far-flung discovery would hold no real threat. But that's only true if the press and opposing candidates have in fact found all the skeletons in the closet.

Many (including me) speculated that the reason John Kerry studiously ignored all suggestions that he sue John O'Neill and the SwiftVets for defamation is because Kerry very much wanted to avoid ever having to produce (or being ordered to authorize government production of) documentary evidence that might cast doubt on the legend he had carefully crafted for himself. Even if Cain doesn't have any comparable skeletons to those rumored about Kerry, no one in his right mind would want to submit to this kind of examination under a microscope hooked up to the internet.

The next several reasons on the list are financial. These cases are incredibly expensive for any individual to finance. Unless the defendant is a fat, judgment-worthy target with huge and identifiable assets that could be seized and auctioned to pay a money judgment -- and Mr. Cain's accusers are emphatically not that -- no lawyer will take such a case on a contingent fee (unless he's doing it as a loss-leader for publicity, in which case he's guaranteed to do a half-assed job as soon as the press stops looking). Oddly enough, however, most homeowners' policies include coverage for defamation, so if Cain sued, his defendants might well be defended by lawyers hired and paid by their homeowners' insurers -- putting Cain at an effective financial disadvantage.

Accordingly, I respectfully disagree with the idea that Mr. Cain must sue, or even ought to sue, if his accusers' statements about him are false. I don't think any confident inferences can be drawn from his failure to sue, because that failure can be explained by many other reasons other than that he expects to lose over whether the defamatory statements were true or false.

The above hissed in response by: Beldar [TypeKey Profile Page] at December 11, 2011 11:52 AM

The following hissed in response by: wtanksleyjr

Jay Tea, maybe my memory is just totally wrong, but I blurrily recall Clinton and his defenders bringing up exactly that defense: that the accusations against him were improper and shouldn't have been brought, that nothing wrong was being alleged, and that whether he'd done anything was therefore irrelevant.

Am I wrong here? I may be, since Clinton DID actually say "no"... I think, though, that he only did that after a while of refusing to respond. I do agree that Clinton managed the spin adroitly (and that he was granted a lot more slack by people in his party and by the press), but I don't think that this excuses Cain's nonresponse.

Oh and frankly, Cain's spin wasn't all that bad! He couldn't execute on it because there were too many good alternatives to him. But make no mistake, it was SPIN. And nobody could mistake the meaning of the spin -- it was "YES, I DID IT". One problem with admitting that would be that admitting to the one thing he WAS guilty of would be politically similar to admitting to ALL of the charges, and he didn't want to get drawn into that.

-Wm

The above hissed in response by: wtanksleyjr [TypeKey Profile Page] at December 11, 2011 4:21 PM

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