‘Non-Defamable Darrell’ Issa Announces Massive Contribution to Doug Applegate’s 2018 CA-49 Campaign!

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There was a crooked man and he had a crooked smile....

We’re not saying that Darrell Issa is crooked, but … behold the smile!

Retired Marine Colonel Doug Applegate has surely done many incredible things over the course of his life — not the least of which is coming within about 2,000 votes (out of more than 308,000 cast) of defeating the umpty-billionaire 16-year incumbent for California’s 49th Congressional District seat — but now Issa has accused Applegate of doing what would seem to be utterly impossible: defaming Issa’s reputation.

Legal scholars may be up late trying to figure out whether Issa’s sordid reputation is even capable of being defamed — even if he weren’t a public figure.  As a public figure, Issa has the burden of proving that those he alleges defamed him either knew that their assertions were false before publishing them or had reckless disregard for the truth of those allegations.  (Readers wondering what “reckless disregard” looks like might start their exploration with a study at the lifetime works of of Dishonest Dave Gilliard, which OJB has long chronicled.  This standard has been summarized as “we don’t know that it’s false, but we don’t care whether it’s false, so long as it does the job.”)

The San Diego Union-Tribune has reported that, the day before last month’s election, Issa filed suit against Applegate for airing two allegedly defamatory television and cable ads against him.

The first ad criticized Issa based on an August 2011 New York Times article headlined “A Businessman in Congress Helps his District and Himself,” which says that Issa “has secured millions of dollars in Congressional earmarks for road work and public works projects that promise improved traffic and other benefits to the many commercial properties he owns here north of San Diego.”

Issa has attacked the Times story vigorously since it first appeared — including in published exchanges with a Times editor that undercut the idea that this issue was not already publicly known — initially alleging that he found 13 errors within it.  The Union-Tribune reports that, of these, “three were corrected — one was caused by inaccurate information in Issa’s family’s foundation’s IRS reports, and another came from bad information from the San Diego County assessor.”

The Union-Tribune adds: “Issa sold one of the properties on West Vista Way near the planned road improvements in January 2012 at a $1.6 million loss. The earmarked funds, which were sought both before and after Issa purchased the building, ultimately were not spent on the road project.”  In other words, what appears may have been Issa’s scheme failed — perhaps because the Times discovered and disclosed what Issa was doing — and therefore Issa implicitly argues that he did nothing wrong.  (If this seems to you like a man arguing that it’s wrong to accuse him of having trued to rape a woman because he was not able to sustain the erection needed to do so and therefore did nothing wrong — then yes, you probably do understand Issa’s defense.)

At issue is the ad’s claim that “Rep. Issa gamed the system to line his own pockets” — that is, it describes an attempted action, not a completed one, as noted in the example just above — a summary sentence that does not appear in the Times article.  Issa claims that the sight and sound of what it calls this “fake, doctored headline” suggests to viewers that it did appear in the Times story.  (Legal humor break: the idea that one can’t post a summary of a story and its implications in an ad would suggest that Applegate might win a “summary judgment” — [wait until laughter and applause dies down] — but this suit seems unlikely to get that far.)

Issa’s lawyers demanded that Applegate pull this ad when it first came out.  Applegate’s campaign replied — and I’m summarizing here, but don’t sue me! — that Issa’s action was a fair target for criticism and that Issa could go game himself.

Issa’s lawsuit also says a second Applegate ad used “misleading statements about Congressman Issa’s voting record, and a doctored quote to wage the dishonest charge that Congressman Issa has opposed supporting the victims, first responders, and heroes of September 11th.”  It raises three grounds:

(1) Its narration says that “tea party Republicans actually voted to deny healthcare to 9/11 first responders.”  Issa says that the bill was defeated not merely by Issa and “tea party Republicans,” but by Democrats as well.  Well, that doesn’t make the statement false — and without that there’s no defamation.

(2) Applegate’s ad used a doctored quote that said Issa dismissed the attack as “simply a plane crash.” The Union-Tribune states that the New York Daily News, from which the quote was taken, actually said that:

“The California congressman who called the Sept. 11 attacks ‘simply’ a plane crash ran for cover Wednesday under a barrage of ridicule from fellow Republicans, first responders and victims’ families.”

I don’t see a material difference between the two “simply” phrases based on where the ending quotation mark is placed.  The U-T does continue by saying that “Congressional transcripts show that Issa said the attack was ‘simply’ a crash in the sense that it did not include a dirty bomb or an aircraft packed with explosive ammunition.  OK, but it did involve terrorists attacking passengers and flying a plane into a building, so it’s not quite as “simple” as Issa contends.  What isn’t mentioned is why Issa said this at all.   He voted no, so it was presumably to justify not paying special compensation to the passengers — because, I don’t know, maybe having your plane flown into an iconic building is not as bad as having the plan explode?  Calling this claim foolish — even based only on what appears in the Daily News quote that was used — is being too kind.

(3) Issa claims that Applegate’s ad failed to note that Issa has (allegedly) championed issues related to victims of the 9/11 terrorist attacks on other occasions.  This would seem to seek to introduce a requirement that any given ad should include exculpatory information that the opponent thinks belongs there.  I might go along with this if it were first applied to Dishonest Dave Gilliard — and some of the others around the county for whom unfairly excluding context and exculpatory information (which, by the way, what Issa complains about ISN’T), is their stock-in-trade.  But that won’t happen, because this argument doesn’t show the statement to be false.

The damage Issa claims is that the ads subjected him to “hatred, contempt, ridicule and obloquy because they inaccurately portray the Congressman as deceitful, uncaring person and corrupt in his role as a member of the U.S. House of Representatives.”  The Union-Tribune archly ads that the “lawsuit did not say if any of Issa’s business dealings, political assignments, or other potential benefits were harmed by the commercials. It also did not explain how it determined that Issa suffered $10 million worth of damages.”  Yeah, I’ll bet it didn’t!

This lawsuit would seem to belong in a category called Strategic Lawsuit Against Public Participation, or “SLAPP suit.”   That’s good news for Doug Applegate, because California’s Anti-SLAPP provision — a motion to strike the case because it involves speech on a matter of public concern — is extremely strong: it can both stop the lawsuit before it gets into expensive discovery and allow the winning party to collect costs and attorney fees from the loser.  Issa would then have to go beyond merely making allegations and show that he already has evidence that could result in a verdict in his favor (which is normally the standard for a summary judgment.)  So Applegate has an opportunity here to make Issa spend a whole lot on reimbursing his legal fees.  And, after he wins, if he someday approaches his lawyers for contributions to his 2018 campaign, my guess is that they’d happily donate some of Issa’s money to such a good client.

One last point: one reason that we might expect that Issa knows that his case is not meritorious is that when he said that while he’d be suing for $10MM — though one might suspect that his “good reputation” is worth a lot less than that, such as maybe a buck-seventy-five — he’d be donating the proceeds to charity.  This makes for a nice story — and also tags this as a political stunt.  That’s not something that a jury would get to hear because it would prejudice them (presuming that they like charities); but his mentioning it might spoil a jury pool in the area — giving Applegate good reason to have the venue of any trial moved to another location, such as maybe a large metropolis like the City of San Diego.  Or, better yet, how about Santa Ana?  We have some great judges!

Personally, I hope that Applegate submits a counterclaim against Issa before Issa can withdraw the suit, because this could be a great boon to Applegate over the next 23 months.  It’s not hard to make Issa look like a fool — but it’s always nice when they make it a little bit easier!

(Note: I have no connection to the Applegate campaign.  Nor to Issa’s, if that needs saying!)


About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)