Ken White is Back! On This Week's Very Serious Podcast

In a reunion of All the Presidents' Lawyers, Ken and Josh discuss Donald Trump and defamation.

Dear readers,

First, some programming notes. The next two issues of the newsletter will be for paid subscribers only. On Friday, I’ll be writing about the failure of Sarah Bloom Raskin’s nomination to be the Federal Reserve’s top bank regulator and the challenges the central bank faces in this period of persistently high inflation. And this weekend, I’ll be responding to reader comments and emails on topics that recently drew a lot of comments: how I’ve improved my at-home coffee brewing, daylight saving time, and Los Angeles.

Free subscribers will next hear from me on Tuesday.

This past Tuesday morning, Sara Fay and I taped this week’s episode of the Very Serious podcast at Ken White’s office in downtown Los Angeles. For those of you who weren’t listeners, Ken and I co-hosted a KCRW podcast called All the Presidents’ Lawyers that focused on the legal problems of Donald Trump and his associates for three years ending in November.

Ken White (l.) and Josh Barro tape the Very Serious podcast at White’s office in downtown Los Angeles on March 15, 2022. (Photo: Sara Fay)

It was really great to catch up with him and cover some of the news events of the last few months that we hadn’t gotten to talk about. That episode is out today for your listening enjoyment.

One thing Ken and I discussed was the largely unavailing nature of recent defamation litigation, including Sarah Palin’s failed lawsuit against The New York Times. We haven’t seen judgments; we have only seen a handful of settlements (and don’t know if they’re large); and in a few cases we’ve even seen plaintiffs come to regret filing their claims. Stormy Daniels ended up owing Donald Trump hundreds of thousands of dollars due to the ill-advised defamation claim she pursued under the advice of Michael Avenatti (who is not a good lawyer).

Later on Tuesday, I went to have coffee on the roof of my hotel in Hollywood, and Alex Jones was carrying on two tables over from me, at what appeared to be a work lunch.

Weird, there’s Alex Jones, was my first thought. Oops, we forgot to talk about Alex Jones, was my second.

Like so many people these days, Jones is a defamation litigant, having been sued by Sandy Hook Elementary families for promoting the conspiracy theory that they faked Adam Lanza’s mass-shooting attack on their children in order to create a political impetus for gun control. Unlike so many people, Jones has been found liable. He faces default judgments in multiple courts — essentially, he failed to participate in the litigation as required, and lost without trial. Juries have yet to determine the damages Jones will owe, and Jones will appeal the decisions; these cases are far from over. But this is a key example of defamation litigation that is availing, however slowly.

Still, the extreme nature of the defamation cases actually likely to produce judgments or large settlements — the Jones cases, and the ongoing litigation by voting companies Smartmatic and Dominion Voting Systems against the promoters of 2020 election theft conspiracy theories — emphasizes the narrowness of the slice of outrageous claims where participants in public debates have meaningful recourse to the tort system. And as Ken argues, it’s that way for a reason — a robust and freewheeling culture of speech has to allow a lot of room for people to say things they really shouldn’t.

But even though it’s rare that someone can win a defamation suit, we’ve been seeing that it is possible to use a weak defamation case as a nuisance weapon, especially in this era of third-party litigation finance. It doesn’t really feel like a healthy system overall.

Ken and I talked about that, and about the possibility that the Supreme Court could revisit decades-old standards about defamation and public figures in a way that would encourage more litigation. We also talked about the unraveling of the Manhattan DA’s investigation into whether Trump made false claims on his financial statements — an investigation that was probably never on very solid ground to begin with.

It was great to talk with Ken after a months-long hiatus, and if you’re not subscribed to the podcast, I encourage you to do so on your player of choice. And I expect to be talking with Ken more frequently in the near future — subscribe to this newsletter for some news on that.

Very seriously,

Josh

P.S. I have two corrections to this week’s newsletters. On Tuesday, I referred to a COVID lockdown in China’s “Shenzhen Province,” which is not an actually existing place. The lockdown is in the city of Shenzhen, not the entire surrounding province of Guangdong. And on Wednesday, I initially said Russia had returned to seasonal daylight saving time when it ended its policy of permanent daylight saving in 2014. In fact, Russia switched to permanent standard time. I regret the errors, which are corrected in the web versions of the newsletter.