NY Times reports on notes that Richard P. Donaghue, a DOJ deputy to Acting AG Jeffrey A. Rosen, took of a conversation with then-president Trump. DOJ has turned these notes over to the House Oversight and Reform Committee. According to the Times, the notes include Donaghue telling Trump: “Much of the info you’re getting is false.” Also: “We look at allegations but they don’t pan out,” Trump was told according to the notes.
These notes further support the point that anytime Trump has claimed that the election was stolen from him since learning from the Justice Department, including Bill Barr and his successor, that these claims were baseless, Trump is making statements in reckless disregard of the truth and thus acting outside the protection of the First Amendment. This point may be relevant for civil litigation against Trump, as well as others (like Mike Lindell), but it’s also potentially relevant to possible criminal exposure from repeated reckless falsehoods. Garrison v. Lousiana, 379 U.S. 64 (1964), applied the same “reckless disregard” standard to criminal prosecutions that New York Times v. Sullivan developed for civil litigation. Although the “stolen valor” case (Alvarez) holds that Congress or a state legislature must have a reason to criminalize speech in order for the “reckless disregard” standard to apply, Alvarez recognized both defamation and fraud as longstanding appropriate bases for holding speech to the “reckless disregard” standard. To the extent that Trump, Lindell, and others think that their reckless repetition of disinformation about the 2020 election is protected by the First Amendment, they may be much more vulnerable to liability (both civil and criminal) than they realize.