Andrew McCabe reportedly is planning to sue for wrongful termination and defamation. The defendant in his wrongful termination suit would have to be the government, I think. The defendant is his defamation suit apparently would be President Trump. McCabe’s lawyer says Trump has engaged in “continuing slander” against the former FBI man.
I don’t know what specific “slanders” McCabe’s lawyer is referring to, but a defamation suit against Trump would likely be frivolous. Because McCabe is a public figure, he would have to prove “actual malice” by the president. This means he would have to show that Trump knew his statements are false or acted with reckless disregard for whether his statements are true or false.
Trump sometimes appears not to care much about whether what he says is true, but that doesn’t seem to be the case with McCabe. I haven’t reviewed everything Trump has tweeted or said about McCabe, but the statements I have seen — e.g., that McCabe lied and leaked — are supported by the findings of the Justice Department’s Inspector General and were prompted by the IG’s report or word of it. Even if the IG’s findings turn out to be erroneous, Trump’s reliance on them would negate any suggestion of actual malice.
Depending on the statements by Trump that form the basis of a future lawsuit, Trump might also be able to invoke the “opinion” defense. It applies to statements that are not provable as false by objective evidence and to statements that cannot reasonably interpreted as stating actual facts — e.g., statements using loose, figurative, or hyperbolic language.
Much of what Trump says seems loose, figurative, or hyperbolic. That’s why we’re supposed to take him seriously but not literally.
There’s also the question of whether the president can be sued at all. Paula Jones’ case establishes that a president can be sued for actions undertaken before he was president. However, McCabe’s case would be based on statements Trump made while in office.
As president, Trump has, at a minimum, immunity for all acts within the “outer perimeter” of his official responsibility. Commenting about government officials strikes me as falling within that perimeter. I suppose the counter argument is that defaming people does not.
In arguing that a defamation case by McCabe against Trump would very likely be frivolous, I don’t mean to say McCabe couldn’t find a federal judge who would entertain it. We’ve seen that the federal bench contains more than a few members of “the resistance” — judges who are quite willing to bend the law in the interest of the anti-Trump cause. Entertaining a defamation suit against Trump likely would require considerable bending, but there are probably some judges up to the task.
McCabe may have his hands full on the legal action front just defending himself against criminal charges. As we have noted, the IG has referred McCabe’s case to a U.S. Attorney for possible prosecution. It’s possible, of course, to be a criminal defendant and a civil plaintiff at the same time in matters involving similar fact. Possible, but expensive.
McCabe, though, was able to raise half a million dollars almost overnight via the internet for his legal defense. If leftists were willing to fund his criminal defense, imagine how eager they will be to fund a suit against their arch-enemy himself.