IRS whistleblowers sue Hunter Biden attorney Abbe Lowell for defamation

Written by Jonathan Turley,

Last January I received a letter threatening me with a defamation lawsuit if I continued to criticize Hunter Biden, including allegations of criminal behavior. It all seemed part of a “Legion of Doom” defense that Biden supporters had reportedly concocted to target critics and even potential witnesses. I wrote three more columns repeating the claims, but heard nothing from the Biden team afterward.

Now it is Biden’s defense that is the target of defamation lawsuits. IRS investigators Gary Shapley and Joe Ziegler are suing attorney Abbe Lowell over public allegations of criminal conduct on their part.

Lowell was sued for $20 million in defamation, alleging “clear malice” in the public allegations of criminal leaking of grand jury material and other wrongdoing.

Because of their extensive public interviews, Shapley and Ziegler would be considered “public figures” for libel purposes. That will make the case challenging, especially since Lowell will argue that he zealously defended his client.

The case will also spark huge debates about the right to refuse to testify and other defenses. However, if significant information is released, the case could shed light on media reports of a “scorched earth” strategy by the Biden team that targeted critics and witnesses.

However, the whistleblowers allege that Lowell “falsely and maliciously” accused them of “the illegal disclosure of grand jury materials and tax return information — despite the fact that they never publicly discussed any return information that was not already public.” Those constitute categories of common law defamation, which include allegations of criminal conduct. The alleged misconduct would constitute federal offenses.

One of the allegations is that Lowell or the team accuses them of leaking information to the press that an investigation was underway, in apparent violation of federal law. Months earlier, Hunter himself reportedly announced that he was under criminal investigation for tax fraud.

Lowell will likely argue that he sought congressional action on allegations to determine whether his client was the subject of unlawful government conduct. He will argue that such defamation suits complicate government communications.

There is clearly irony in that defense, given the Biden team’s tactics in targeting those of us who have written about the corruption of the First Family.

The Lowell lawsuit may offer another opportunity to reconsider the standards for public figures that I have previously called into question.

In New York Times vs. SullivanWriting for a unanimous court, Justice William Brennan said the First Amendment requires a higher standard of proof for defamation than simple negligence on the part of government officials.

News organizations were being attacked by anti-segregationists at the time to prevent them from covering the civil rights marches. By setting a high standard for proof of libel, Brennan was attempting to give the free press “breathing room” to perform its most important function in our system.

The court held that government officials have ample means to refute false statements, but that it is essential to democracy that voters and reporters be able to challenge government officials. To create that breathing room, the court required that government officials prove “actual malice,” where the defendant had actual knowledge of the falsity of a statement or showed reckless disregard for whether it was true or false.

This standard was later extended to public figures. The Court noted that in our celebrity-driven culture, celebrities are powerful, have ample resources to protect themselves, and have chosen their life of fame.

Two judges have indicated they may be open to the idea of ​​revisiting the case. New York Times vs. Sullivan: Clarence Thomas and Neil Gorsuch. Gorsuch specifically objected to the denial of certiorari in Berisha vs Lawsonin which author Guy Lawson published a book detailing the “true story” of three Miami youths who allegedly became international arms dealers.

A central figure in the story was Shkelzen Berisha, the son of Albania’s former prime minister. He sued Lawson for libel, claiming that he was not, as he was portrayed, an associate of the Albanian mafia and that Lawson used unreliable sources for his account.

Berisha is a public figure and not a civil servant.

The problem is that one element is missing to put a heavier burden on public figures like Berisha or the two whistleblowers: promoting the democratic process. In teaching libel, the real standard of malice rests convincingly on a democratic reasoning that a free people and a free press must have breathing room to criticize government and its leaders. It helps protect and perfect democracy.

As I discussed earlier, I’ve struggled in class to offer the same compelling rationale for applying the standard to anyone who qualifies as a public figure. It takes very little to qualify as a public figure, or a “limited purpose public figure.” But why should private success expose only someone like IRS whistleblowers or athletes to a higher burden of proof for defamation? Writing about hot dog-eating champion Michelle Lesco doesn’t protect core principles of democracy or even support core principles of journalism. To succeed, a Kardashian would still have to prove that a statement was false and unreasonable to publish. Moreover, in most states, publications are protected by retraction statutes that limit or block damages for corrected stories. Finally, speech is already protected from defamation actions.

It is clear that the public figure standard is a clear advantage for the media. However, without a compelling argument for a constitutional standard for public figures, it seems more like a court-enforced subsidy or shield.

It is notable that media outlets, including the New York Times and CNN, have lost major lawsuits in defamation cases. These cases could also prompt a new revision of the public figure standard.

Here is the complaint: Shapley v. Lowell