2020 Presidential Election Takes an Interesting Turn as One Candidate (Gabbard) Sues Another Former (and Possibly Current) Candidate (Clinton) for Defamation

(Updated January 31, 2020)

Gabbard vs. Clinton 2020

On January 22, 2020, Tulsi Gabbard and Tulsi Now, Inc. filed a federal lawsuit in the United States District Court in the Southern District of New York. The opening paragraph of the complaint sets the tone of the dispute:

Plaintiffs Tulsi Gabbard and Tulsi Now, Inc. (collectively, “Tulsi”) bring this lawsuit against Defendant Hillary Rodham Clinton (“Clinton”) for defamation. Tulsi Gabbard is running for President of the United States, a position Clinton has long coveted, but has not been able to attain. In October 2019—whether out of personal animus, political enmity, or fear of real change within a political party Clinton and her allies have long dominated—Clinton lied about her perceived rival Tulsi Gabbard. She did so publicly, unambiguously, and with obvious malicious intent. Tulsi has been harmed by Clinton’s lies—and American democracy has suffered as well. With this action, Tulsi seeks to hold Clinton, and the political elites who enable her, accountable for distorting the truth in the middle of a critical Presidential election.

Gabbard seeks an award of compensatory, special, and punitive damages as well as injunctive relief prohibiting the publication and republication of certain alleged defamatory statements and an award of Gabbard’s costs associated with the lawsuit.

The official Press Release from Rep. Gabbard’s website states:

Washington, DC – Tulsi Gabbard, a United States Congresswoman, Army National Guard Major, and 2020 presidential candidate, today filed a defamation lawsuit against Hillary Rodham Clinton. Gabbard, a U.S. Representative for Hawaii’s 2nd congressional district, asserts in her complaint that Clinton deliberately and maliciously made false statements in an attempt to derail Rep. Gabbard’s campaign, by alleging that Gabbard is a “Russian asset.” The complaint was filed in the United States District Court for the Southern District of New York by Brian Dunne and Dan Terzian, Rep. Gabbard’s legal counsel and partners at Pierce Bainbridge Beck Price & Hecht LLP. 

Clinton was the 2016 Democratic Party nominee for President of the United States, United States Secretary of State from 2009 until 2013, a United States Senator for the State of New York from 2001 to 2009, and the First Lady of the United States from 1993 to 2001. On October 17, 2019, she publicly stated in an interview that “somebody who is currently in the Democratic primary … [is a] favorite of the Russians… Yeah, she’s a Russian asset.” The press extensively republished and disseminated these statements, which were interpreted widely as Clinton asserting that Gabbard is a Russian asset.

The complaint seeks compensatory damages and an injunction prohibiting the further publication of Clinton’s defamatory statements.

Access the complaint here.

Is a Statement That Another Politician is a “Russian Agent” Defamatory? Gabbard’s Lawsuit Against Clinton Makes a Strong Argument.

The dispute appears to center on an October 17, 2019 appearance Clinton made on the podcast Campaign HQ With David Plouffe during which Clinton is alleged to have been referring to Gabbard when Clinton stated that she was following “somebody who is currently in the Democratic primary” who “[they] are grooming . . . to be the third-party candidate”:

She’s the favorite of the Russians. They have a bunch of sites and bots and other ways of supporting her so far. And, that’s assuming Jill Stein will give it up, which she might not because she’s also a Russian asset. Yeah, she’s a Russian asset.

In the lawsuit, Gabbard argues that:

• Clinton’s statements were defamatory;

• Clinton refused to retract the statements;

• The statements are false and defamatory per se;

• Clinton made the statements with actual malice;

• The statements were republished and disseminated widely by media outlets; and

• The statements injured Gabbard’s reputation.

The actual malice element may prove to be the most difficult as this dispute is between well-known public figures. Also, since the statements alleged by Gabbard to be defamatory do not specifically mention Gabbard by name, she has another hurdle to prove the statements were directed to her and so understood by the public.

In the Complaint, Gabbard’s lawyers argue forcefully that these statements injured her:

50. Millions of Americans heard (or read about) Clinton’s Defamatory Statements. Scientifically conducted opinion surveys have shown that Clinton’s false, malicious statements about Tulsi, including that Tulsi is a “Russian asset” and “the favorite of the Russians,” were accepted as true by millions of Americans, including large numbers of voters in battleground Presidential primary states.

51. The Defamatory Statements have caused Tulsi to lose potential donors and potential voters who heard the Defamatory Statements. Tulsi has suffered significant actual damages, personally and professionally, that are estimated to exceed $50 million—and continue to this day.

Reference to “scientifically conducted opinion surveys” is interesting support for the claim for damage.

What’s the Standard for Defamation Claims by Public Figures?

In the famous case New York Times v. Sullivan, the U.S. Supreme Court set the standard for defamation claims involving public figures and adopted the term “actual malice” giving it constitutional significance to balance the interests of the First Amendment and the law of defamation. The Court held that a public official suing for defamation must prove that the statement in question was made with actual malice.

Black’s law dictionary defines “actual malice” as:

The deliberate intent to commit an injury, as evidenced by external circumstances. Also termed express malice; malice in fact. Cf. implied malice. 2. Defamation. Knowledge (by the person who utters or published a defamatory statement) that a statement is false, or reckless disregard about whether the statement is true. To recover for defamation, a plaintiff who is a public official or public figure must overcome the defendant’s qualified privilege by providing the defendant’s actual malice. And for certain other types of claims, a plaintiff must prove actual malice to recover presumed or punitive damages.

In Sullivan, Justice Brennan acknowledged that the actual malice standard may protect inaccurate speech, but that the “erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive.” Justice Black explained, “‘Malice,’ even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment.”

Under this standard, Gabbard will need to prove that Clinton’s statements were more than careless mistakes or puffery. That’s likely why the lawsuit goes to great lengths to explain Gabbard’s position that Clinton claiming Gabbard to be a “Russian asset” and other statements were made purposefully and with no basis. This is likely going to be one of the biggest challenges in the lawsuit. As with other business litigation claims like fraud the intent of the defendant may be inferred from their actions as well as circumstantial evidence.

Final Thoughts on Gabbard vs. Clinton

When I heard the bizarre claim that Gabbard was somehow a secret “Russian asset” put in place to disrupt the 2020 election — or at least the Democratic primary — my initial reaction was this was an outlandish claim that unfortunately has become common place in American politics. But after reading Gabbard’s complaint and the recent announcement by CNN that it had settled the $275M lawsuit involving Covington Catholic student Nick Sandmann, I believe her claims have a greater chance of success.

However the case is resolved, the eventual deposition questioning of Ms. Clinton regarding the substance of her statements and proof that Gabbard is an alleged “Russian asset” would be very interesting.

Update — Clinton Purportedly Refuses Service of Gabbard Lawsuit

According to a Washington Times article and other media outlets, Clinton has refused to accept service on two occasions by purportedly blocking the process server through a Secret Service agent:

Mrs. Gabbard’s lawyer, Brian Dunne, told the New York Post that his process server was turned away by Secret Service agents at Mrs. Clinton’s Chappaqua, New York, home on Tuesday and was later turned away by Mrs. Clinton’s lawyer at his D.C.-based firm on Wednesday after agents specifically instructed the server to go there.

“I find it rather unbelievable that Hillary Clinton is so intimidated by Tulsi Gabbard that she won’t accept service of process,” Mr. Dunne said. “But I guess here we are.”

Can the Secret Service Block the Gabbard vs. Clinton Lawsuit?

This is yet another strange twist to an already strange situation. While I am unaware of any law that allows a defendant to avoid service by creating a barrier to a process server through the Secret Service or other government agents, Clinton likely can stretch out the period for Gabbard’s lawyer to achieve service. Under Federal Rule of Civil Procedure 4(m), Gabbard has 90 days from filing suit to serve Clinton:

(m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A)

As set forth in the rule, if Gabbard’s lawyers can show good cause for not meeting the 90-day service deadline, the Court can extend the time period. This is typically accomplished through filing a motion to extend and/or possibly a motion for substituted service.

In Gabbard vs. Clinton, the Clinton camp is clearly aware of the lawsuit since it has had such widespread discussion in the press. It would be very strange indeed if Clinton prevented Gabbard’s service of the lawsuit by using Secret Service agents as a barrier to preclude in-person service by a process server. The court may likely deem Clinton served via the immense amount of press coverage or allow Gabbard to achieve service through serving Clinton’s lawyers.

You may also be interested in:

Sign up for and explore our content and thought leadership here.

About the Firm:

Klemchuk LLP is a litigation, intellectual property, transactional, and international business law firm dedicated to protecting innovation. The firm provides tailored legal solutions to industries including software, technology, retail, real estate, consumer goods, ecommerce, telecommunications, restaurant, energy, media, and professional services. The firm focuses on serving mid-market companies seeking long-term, value-added relationships with a law firm. Learn more about experiencing law practiced differently and our local counsel practice.

The firm publishes Intellectual Property Trends (latest developments in IP law), Conversations with Innovators (interviews with thought leaders), Leaders in Law (insights from law leaders), Culture Counts (thoughts on law firm culture and business), and Legal Insights (in-depth analysis of IP, litigation, and transactional law).