The Other McCain

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Not a ‘Threat’: Palin Lawyer Gives McGinniss, Random House Legal Notice

Posted on | September 26, 2011 | 149 Comments

This headline at ABC News is misleading:

Sarah Palin Threatens to
Sue ‘Rogue’ Book Publisher

It is misleading, because there is no “threat” in the letter. Rather, as Governor Palin’s lawyer John Tiemessen clearly states, the legal prerequisite for a defamation suit under Alaska law:

“[S]ince both your company, and the author, clearly knew the statements were false, admitted they had no basis in fact or reality, but decided to publish in order to harm Governor Palin’s family, you and Mr. McGinniss have defamed the Palins. This letter shall serve as written notice . . . that a claim may be brought against you, your company and Mr. McGinniss for knowingly publishing false statements.”

While I am not specifically familiar with Alaska’s libel law, I am familiar with libel law in general — as every journalist should be — and what Tiemessen has sent Random House is what’s known as a “demand letter.”

A publisher is put on notice by such a letter that the lawyer’s client considers himself the victim of libel. Notice of intent is required for several reasons. In the newspaper business, if somebody calls your office and bitches about a story, OK. But the minute they say “lawsuit” or “lawyer,” you end the conversation and refer them to the newspaper’s attorney.  If the complainer is actually serious about a libel suit, their lawyer sends a demand letter, and the newspaper’s attorney then considers whether the complainer has a case. If the lawyer says retract, you retract.

Printing a retraction is a humiliating thing for a newspaper to do, but it’s cheaper than taking a libel suit to court. Retracting a book is not so easy, which is why book publishers have lawyers on retainer whose job is to vet manuscripts like McGinniss’s.

For many years, it has been part of my business to know the difference between the mere threat of a libel suit — threats are a dime a dozen — and such letters as Tiemessen has sent Random House. This is not a “threat,” and the executives at Random House damn well know it. They clearly failed to perform “due diligence” in fact-checking, and no cleverness in attributing lies to anonymous sources can protect them.

What the hell were they thinking, hiring a writer of such notoriously bad judgment that he would hang out with Jesse Griffin?

UPDATE: Thanks to the fine legal minds in the comments, one of whom informs me that Tiemessen’s letter is actually a “litigation hold,” a notice to a prospective defendant that he should preserve documents relevant to “anticipated litigation.”

Which is very close to “See you in court, buddy” — as I say, it’s not a mere threat. In the comments below, I explain that my knowledge of libel law is strictly operational: As a journalist, how do I avoid a libel suit? And, if I find myself threatened with such a suit, how do I deal with it?

Most of the time, I laugh off any mere threat of a libel suit. American libel law generally favors the defendant. A journalist has to screw up pretty bad to lose a libel case, particularly one where the plaintiff is a public figure per the Sullivan precedent. But (a) McGinniss has screwed up royally with his e-mail to Griffin, and (b) Sarah’s brother Chuck Heath Jr. is clearly not a public figure, nor are several other members of Palin’s family who might claim defamation in this case. So even if Sarah can’t win a trial case, Random House’s exposure doesn’t end there.

Linked by Don Surber, Bob Belvedere at The Camp of the Saints, the Neosexist, the Lonely Conservative and Ed Driscoll — thanks!

Question: Does this anticipated legal action indicate that Palin is planning to run for president, or does it indicate the opposite?

UPDATE II:  Allahpundit has a rather dismissive attitude toward Palin’s prospects of winning a defamation suit, but he seems to be thinking like a lawyer rather than seeing this from the standpoint of the defendant (Random House), faced with clear proof from the Griffin e-mail that McGinniss’s book included what he knew to be unsubstantiated “tawdry gossip.”

McGinniss’s association with Griffin is very damaging to Random House. Griffin claims McGinniss said he was a “huge fan” of his Immoral Minority blog two months after Griffin was proven a liar with the bogus “divorce” rumor story. Why would McGinniss be cordially corresponding with a disgraced rumor-monger? Couldn’t the statement that McGinniss was a “huge fan” of such a person as Griffin be construed as evidence of malice toward Palin?

The two rules of thumb I was taught were, “When in doubt, leave it out” — that is to say, don’t publish something if you aren’t sure of its accuracy — and “If your mother says she loves you, check it out” — Don’t assume the truth of what people tell you.

Allahpundit’s comparison of Palin v. McGinniss, et al., to a Hollywood celebrity suing a tabloid is a poor analogy, given who Palin is and what McGinniss offers as the rationale for his book. McGinniss claims to have exposed Sarah Palin as a dangerous person unfit for public office, and the “tawdry gossip” in his book is part of his case against her.

That’s a helluva lot different, in terms of journalistic purpose, than what the Star or US Weekly might publish about a movie star’s divorce or a singer’s drug habits. Random House has promoted the McGinniss book as a work of serious investigative journalism about an important politician, and it is that alleged seriousness that would justify a Palin lawsuit.

UPDATE III: Both informative and funny:

Over the weekend McGinniss was reportedly complaining that even outlets like Olbermann, Maddow and NPR are canceling his scheduled appearances or refusing to have him on at all. The above might offer a clue as to why. Not many media suits right now are going to want to take part in helping push a bombing book that could end up as an expensive and/or embarrassing legal headache.

When even Rachel Maddow won’t help you promote your anti-Palin book, you’re clearly scraping a new low. At some point, I suspect, the Random House lawyers will tell McGinniss to shut up, lest he provide further evidence of malice for Palin’s lawsuit.

UPDATE IV: We have apparently attracted attention of some Palin Derangement Syndrome sufferers, including the vile Phil Munger, whose comments were deleted. You hideous monsters have plenty of bandwidth at Mudflats, etc., where you can spread your insane filth without being permitted to hijack my bandwidth. Wombat will be advised to wield the troll-hammer at his discretion.

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Category: Books, Sarah Palin

Comments

149 Responses to “Not a ‘Threat’: Palin Lawyer Gives McGinniss, Random House Legal Notice”

  1. My OP
    September 27th, 2011 @ 2:04 am

    You’re assuming the stories are true. I doubt they are, but even if they are so what?

  2. Michael Wiley
    September 27th, 2011 @ 2:10 am

    Sarah is kicking them in the Crown (Jewels) Publishing.

    Game on!

  3. Palin Lawyer to McGinniss, Random House: Put up or shut up. - The NeoSexist
    September 26th, 2011 @ 10:11 pm

    […] http://theothermccain.com/2011/09/26/not-a-threat-palin-lawyer-gives-mcginniss-random-house-legal-no… Win the Future! Share this!ShareTweet […]

  4. JeffS
    September 27th, 2011 @ 2:14 am

    Hey, maybe Creepy Joe’s son will call again, Stacy!  You might get some really great quotes if that happens.

  5. Michael Wiley
    September 27th, 2011 @ 2:14 am

    Prediction: Sarah’s lawyer goes into discovery phase. Determines the extent of their claim. Then Random House settles out of court with a determined percentage of total book sales, plus removes all existing and future publishing of this book. Additionally, damages will be determined separately and will be significant given the stature of Sarah Palin and the First Family to be.

  6. McGehee
    September 27th, 2011 @ 2:26 am

    McGinniss won’t be making the decision. Random House will.

  7. Anonymous
    September 27th, 2011 @ 2:30 am

    There are no criminal libel laws (anymore) in this country.  But it is interesting that insurance companies which cover defamation are insuring against a tort which can be done intentionally, and which additionally must be approved by the principals the company – which is an anomaly for insurance.  It would be interesting to see how the language these insurance contracts are crafted, what kind of exclusions exist, and what kinds of demands/supervision carriers make as a condition coverage.  I’m sure Stacy knows something about all this.

  8. ThePaganTemple
    September 27th, 2011 @ 2:33 am

    Next she should go after Jesse Griffen, and Andrew Sullivan, make them cry like the little bitches they are.

  9. serfer62
    September 27th, 2011 @ 2:37 am

    The Palins don’t have to sue. Her brother can do that leaving the Gov free campaign.

    I like this approach as it screws the kommiecrats real gopod without afficking the Plains…

  10. serfer62
    September 27th, 2011 @ 2:45 am

    No way for ’16…its this year or ’20.

  11. Randy Arthur
    September 27th, 2011 @ 2:46 am

    The costs of complying with a discovery request are non-trivial. Average cost is approximately $1.5 million per action.  Whatever profit Random House sought to make from the drivel in this book just went up in smoke. What will be more interesting is to see through the discovery process who else in the Democrat/Media complex sought to influence Random House or who in Random House management bypassed their due diligence process and exposed the company to this defamation lawsuit. The board and shareholders should seek the dismissal of all those in the management chain that signed off on the publishing of this book in the full knowledge (in their own words) that there was no substantiating evidence at all.

  12. Smokem987
    September 27th, 2011 @ 2:54 am

    “I am familiar with libel law in general — as every journalist should be — and what Tiemessen has sent Random House is what’s known as a ‘demand letter.’ ”
    You don’t know what you’re talking about, Stacy. That was not a demand letter…it was a “litigation hold” notice. A demand letter demands that the other party perform some specific act or payment to avoid a lawsuit. A litigation hold notice puts the recipient under obligation to preserve records that relate to the anticipated litigation. Tiemessen’s letter is quite plainly the latter, and not the former.

  13. Anonymous
    September 27th, 2011 @ 2:54 am

    I wonder if they should include the bloggers and many of those who made comments who admitted they contributed to McGinniss concerning the false claims in the book.   Big bully gryphen/griffen is using Sarah’s phrase of “Game On”–does he think he is important at this point.  Add him so we can see him squirm since he has boasted about being a major playing in joey’s book.

  14. Palin says she’ll sue Joe McGinniss « Don Surber
    September 26th, 2011 @ 10:59 pm

    […] Robert Stacy McCain: The letter is “Not a ‘Threat’: Palin Lawyer Gives McGinniss, Random House Legal […]

  15. Anonymous
    September 27th, 2011 @ 3:07 am

    An article by an individual in Alaska gave insight to the way mcginniss operates—–and it ain’t the most ethical.  Said McG would ask a question, if you didn’t answer the way he wanted, then he would skew the subject matterand approach again, then stating one’s silence to him was as good as an affirmative answer if one did not respond.   Therefore, maybe Glen Rice did not give McGinniss the answer he wanted.  Why does one always assume the most negative statements against Gov. Palin to be factual

  16. Smokem987
    September 27th, 2011 @ 3:14 am

    The libel complaint against McGinnis was a civil case, not a criminal one, so even if the state where MacDonald sued had such a law, it wouldn’t apply. Libel isn’t a crime–it’s a tort. 

    You also overlooked that fact that McGinnis didn’t even lose that case, as far as the courts are concerned. The jury couldn’t reach a decision, and the parties settled out of court. 

    You and Stacy are in over your heads when it comes to legal issues.

  17. That Creepy Joe McGuiness Deserves to Get Sued | The Lonely Conservative
    September 26th, 2011 @ 11:16 pm

    […] last week, you can click hereand here and enjoy my definitive meisterwerk.Now comes word from Stacy McCain that the lawyers for The Palin Family have sent a demand letter to the Creepy Cheap WhoreJoe […]

  18. Anonymous
    September 27th, 2011 @ 3:18 am

    Thanks for the information, Smokey. As I told someone tonight in discussing this situation, my knowledge of libel law is strictly operational in nature: How to avoid a libel suit, and what to do when someone threatens a suit.

    So, yes, I see what you’re saying, but the point is the same: This letter is more than a mere “threat” of a lawsuit. Your phrase  “anticipated litigation” captures it quite well. The mention of the Alaska state law, evidently requiring “written notice,” is the key element.

    What I was thinking about — and remember, I see this from the standpoint of a longtime newspaper journalist — was what this means to Random House. If they wish to avoid a lawsuit now, gien the smoking-gun nature of the McGinniss-Griffin e-mail, Random House will have to pull the book off the shelves. The longer they delay doing that, the greater the (potential) damages.

  19. Smokem987
    September 27th, 2011 @ 3:18 am

    That civil case ended without a judgment more than a quarter-century ago. In other words, not “in this economy.” Nobody can “confiscate” McGinnis’ Fatal Vision royalties.

  20. Anonymous
    September 27th, 2011 @ 3:19 am

    Not to even mention the 15 mil. to billy jeff clinton for his ‘my life’.

  21. Joe
    September 27th, 2011 @ 3:32 am

    Maybe.  But usually the insurer will defend.  RH will claim they relied on McGinniss, blah, blah, blah.  Negligence.  Thought they did a good job.  Blah, blah blah.  And I bet they have lots and awesome amounts of coverage.   And if the insurer is wrong, it means a lawsuit that way. 

    But paying on it (if RH loses)?  Your right, that is different. 

  22. Joe
    September 27th, 2011 @ 3:33 am

    Now that would be interesting.  That would be a stealth attack. 

  23. Thomas Knapp
    September 27th, 2011 @ 3:36 am

    “They know very well that they’d look bad if they sent a letter like this and didn’t bring suit.”

    They’ve done it before. What’s different this time?

  24. Joe
    September 27th, 2011 @ 3:36 am

    That is the goal, I think.  If the Palins want litigation, I also think it means Sarah does not run. 

    But who knows, the Palins surprise the heck out of me all the time. 

  25. Joe
    September 27th, 2011 @ 3:38 am

    Wombat.  A lawsuit is a civil action.  Not a criminal one.  And usually in a lawsuit the jury decides the damages (even if you “win,” sometimes you only get a $1). 

  26. Joe
    September 27th, 2011 @ 3:40 am

    Smoke beat me to it, but he is right on this. 

  27. Joe
    September 27th, 2011 @ 3:41 am

    Wombat, Sarah wants you and 11 more Wombats on that jury! 

  28. Smokem987
    September 27th, 2011 @ 3:44 am

    I’m not at all as certain as you and many others here are that Random will fold, or that if it doesn’t, that Palin will sue. It doesn’t make sense to think that Random’s lawyers went over the book with the fine-toothed comb referred to in the email, and then just said, “Aw, who cares? Go ahead and publish a libel.” They thought it over, and in the end they thought they were good. One thing I’m sure they’ll weigh now is the immense damage that pulling the book  would do to the company. And if they call Palin’s bet, there are no good choices for her. Suing means McGinnis becomes her life for the foreseeable future. That price isn’t worth eventually grinding him into dust, in my book. But then, the truest knock McGinnis has put on Palin is that she lacks perspective. The woman who gets into public pissing matches with a nobody like Levi Johnston may be unable to objectively weigh the costs of discovery and cross-examination. Although it just occurred to me that she did that very calculation when she resigned the governorship. So, I think it’s a toss-up which way this goes.

  29. Anonymous
    September 27th, 2011 @ 3:54 am

    1. Jesse Griffin doesn’t have enough net worth to make a lawsuit against him worth the trouble.
    2. Sully has never claimed to have done any independent reporting vis-a-vis Palin. Sully merely “reports” a bunch of lurid speculation.

    It’s kinda weird that Sully’s awful stuff is not “actionable,” as they say, but it’s not. Whereas McGinniss’s work is very much actionable, if the Palins can disprove any of his defamatory material, which he has “reported” despite his own admission that it was nothing but “lurid gossip,” but which he has foolishly doubled down on, saying that he found these accusations “credible.”

  30. Adjoran
    September 27th, 2011 @ 3:57 am

    First of all, she’s not running, so no problem.

    Libel insurance generally will pay the cost of the defense, that’s all.  It doesn’t pay any judgment if you lose or settlement if you’re going to lose.  And most bigger publishers don’t even bother with it since they have lawyers on salary anyway. 

    Random House is a subsidiary of Bertelsmann, maybe the biggest.  Libel suits beyond the usual nuisance noise aren’t good for an executive’s career in a mega-biz like that.  With the smoking gun the idiots already left out, Palin has a great chance, much better than most public figures.  She’s got close to actual malice and definitively a reckless disregard for the truth – and there hasn’t even been any discovery yet. 

  31. Adjoran
    September 27th, 2011 @ 4:00 am

    Probably completely.  The money isn’t so much the problem as the negative publicity and damage to their reputation, and to a lesser extent it invites more litigation if successful.

    Still, put it in front of the right jury, the numbers can rack up pretty quickly . . .

  32. Adjoran
    September 27th, 2011 @ 4:03 am

    Discovery is a wonderful thing.  You just know some of these things were questioned by Legal at some point.  The responses would be like gold to lay before a jury.

  33. Alcibiades_d4
    September 27th, 2011 @ 4:09 am

    She’s rarely commented on Levi and only then graciously.

  34. Adjoran
    September 27th, 2011 @ 4:15 am

    I doubt Random House’s legal department had the McGinniss – Griffin email or other evidence the old fool has probably left around.  And it is entirely possible they assumed Palin’s “public figure” status gave them enough cover.  That standard is high, but what we’ve already seen is darned close to actual malice and willful disregard for the truth, IMHO. 

  35. Adjoran
    September 27th, 2011 @ 4:18 am

    Sully is smart enough to always be “just asking questions” about how space aliens impregnated Bristol twice in a few months, or whatever his ulcerated brain thinks it has heard.  McGinniss isn’t that smart.

  36. JeffS
    September 27th, 2011 @ 4:28 am

    Yeah, but Sully will sully his shorts in a most unpleasant fashion when Sarah Palin comes out ahead on this.  Think of all the schadenfreude!   mmmm mmmm mmmm!

    But Creepy Joe The Whore shouldn’t be too upset…..I’m sure that Sully will comfort him in the dark of night.

  37. JeffS
    September 27th, 2011 @ 4:36 am

    You’re assuming that the RH staff was objective about this book.  Which, in times past (even as recently as 5 years ago), was a good assumption.

    Now, I’m not so sure.  There’s a lot of pressure on the Democrats to win the 2012 elections, and they seldom leave a stone unturned.  Someone may have considered it an acceptable risk, not knowing that McGinniss would shove his foot into his mouth.

    So it’s possible that the review was not objective, and may have been cursory.  Especially given the history of Joe McGinniss. 

    I emphasize: possible.  You make good points here, but I question this particular assumption of yours.

    Just remember that a few years ago, people were laughing at the possibility that the main stream media was coordinating their stories to favor liberal politicians.  And then along came Journolist…..

  38. ABC News Report: Sarah Palin Threatens To Sue Rogue Author Joe McGinniss | DAILY NEWS
    September 27th, 2011 @ 1:46 am

    […] http://theothermccain.com/2011/09/26/not-a-threat-palin-lawyer-gives-mcginniss-random-house-legal-no… […]

  39. Anonymous
    September 27th, 2011 @ 5:59 am

    Sarah Palin Will RUN For USA President ans She Will SUE BIG LIAR and BASTARD, Joe McGinniss….

  40. Count de Money
    September 27th, 2011 @ 6:23 am

    True, it’s not worth suing Griffin since he probably doesn’t have any assets worth going after. However, he could be called as a witness and be deposed. If it goes to trial, he’d have to take the stand and testify. That would be fun to watch.

  41. Anonymous
    September 27th, 2011 @ 6:36 am

    Is the publisher that into hatin Palin, are their lawyers incompetent, if their lawyers are competent why didn’t they listen to them?

  42. ABC News: Governor Palin Threatens to Sue Creepy Joe McGinniss and His Publisher | Congress Arizona
    September 27th, 2011 @ 2:36 am

    […] by Nicole: Stacy McCain gives his extended take on the letter: Tiemessen’s letter is actually a “litigation hold,” a notice to a prospective […]

  43. Robert Simmons
    September 27th, 2011 @ 7:05 am

    The key fact is the email. This is evidence that Random House’s lawyers as well as McGuiness himself knew that the book was false and that they published it with malice. The fact is that it will only come down to damages here as RH is totally screwed to start with. Without the email, this would have been a tough case but with it, the case is a slam dunk. Furthermore, if they try to destroy evidence then follow on suits and potential obstruction of justice charges can be brought.

    My guess is RH settles, pays damages, apologizes, retracts the book and cuts their, already significant, losses. In the process the discovery will turn up enough emails to completely sing McGuiness and the other attackers of little Trig for good.

    As for running for pres at the same time? No problem. That is what lawyers are for.

  44. Philip Munger
    September 27th, 2011 @ 7:08 am

    Here is what McGinniss wrote at a book salon I hosted at firedoglake on Sunday, when asked about The Rogue’s vetting:

    Bottom line: not only my editor, but Random House attorneys verified every source, in some cases speaking directly to the sources themselves. I have dozens of hours of recorded conversations. Random House attorneys listened to them all, then made an independent judgment about the trustworthiness of the sources. No material from an unverified source is included in the book. Many details were omitted for that reason. Obviously, any writer would like to be able to name every source. In this case, the climate of fear the Palins created in and around Wasilla made that impossible. After seeing how Sarah reacted to my moving next door, many people became afraid for their own safety and said they’d talk to me only if I guaranteed confidentiality. When I felt I had to, I did. Anonymous sources have a long and honorable tradition in U.S. journalism. Look at Woodward and Bernstein and “Deep Throat.” Just last week, the NY Times had a story about the Mets third baseman and quoted an anonymous source. In twelve books written over 42 years, I’ve never been through a legal vetting like this one. It lasted for months.

  45. Robert Simmons
    September 27th, 2011 @ 7:15 am

    Yet they have the email admitting that they knew the book was nothing more than gossip. hey also have the email proving malice. What McGuiness said to a news outlet after the email’s publication can easily be torpedoed in court and with discovery, the chance of turning up much more interesting things is high. The real question is whether or not RH was being influenced by another party and just what the terms of the settlement will be. In short, Palin has the smoking gun handed to her by Breitbart. Without that, the suit is impossible. With it, its a slam dunk.

  46. Anonymous
    September 27th, 2011 @ 10:36 am

    The other thing is that they probably overestimated how far that “public figure” aura would extend in this case. After all, it’s Sarah Palin; it’s not like they haven’t tried to make as many of the family as notorious as possible.

  47. Tuesday Round Up | Students4Palin
    September 27th, 2011 @ 7:05 am

    […] Governor Palin’s attorney has sent Random House and Joe McGinniss a demand letter, threatening to sue them for the unsubstantiated trash they published about her. Our friend, Stacy […]

  48. Smokem987
    September 27th, 2011 @ 11:35 am

    She called him a “mean-spirited” and “malicious” liar who sold his body for money and would “say and do anything” to satisfy his “desperate need for attention.”  She pegged him accurately, but to paraphrase Inigo Montoya, I don’t think the word “gracious” means what you think it does. Palin should have heeded the old warning about arguments with idiots: they drag you down to their level and then beat you with experience. She should have, but apparently it’s not in her make-up to be able to. Which favors the odds for suing McGinnis, as bad as that decision would be.

  49. MathMom
    September 27th, 2011 @ 11:52 am

    That was what I was thinking.  They have defamed the whole family.  Sarah herself doesn’t need to be the plaintiff.

  50. McGehee
    September 27th, 2011 @ 11:54 am

    And if McGinniss had a history of telling the truth that statement from him would be worthwhile.