Looked at one way, it was a standard exercise in Trumpian rallying—not quite up to the president’s own level of rhetorical excess, but right there in the same league as broadsides against Crooked Hillary or exhortations to Lock Her Up.
“How do you think [Joe Biden’s] son is feeling right now?,” Eric Trump told the crowd at a Minneapolis gathering last week. “Right after embezzling a lot of money, taking a lot of money, the crookedness. He’s not looking too good. Maybe lock her up goes to lock him up.”
Looked at another way, though, the statement was something else: In front of a capacity audience, and with TV cameras rolling, a private citizen named Eric Trump had accused a private citizen named Hunter Biden of embezzlement—a crime.
It’s the sort of accusation that can ruin a man’s reputation. Which is why it’s the sort of accusation that, when not accompanied by evidence, can land someone on the wrong side of a defamation lawsuit.
And that’s also why it’s the sort of accusation that reporters and others are taught to be very careful about using. But if a local businessman who was called an embezzler in a hometown newspaper could take the paper to court, could a candidate’s child do the same to a presidential son over a campaign-rally assertion? I called some lawyers to find out.
The first question, it turned out, is about the identity of the accused. Is Hunter Biden considered a private citizen—ie, like the hypothetical local businessman I referenced above?
Yes….and no. Literally speaking, Hunter is a private citizen, as he doesn’t hold any kind of official or public position. When it comes to defamation law, though, Hunter would likely be categorized as a “limited-purpose public figure,” which is defined as an individual who has “thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved,” and, typically, has used the media to influence public opinion.
Did most Americans know the name “Hunter Biden” two months ago? Probably not. But after getting dragged into Trump’s Ukraine scandal and giving an exclusive interview on ABC News, Biden’s second son has become something of a household name, hence the “limited-purpose public figure” classification.
This might all seem like semantics, but it’s much harder to win a defamation case if you’re in the public figure category. Unlike private citizens — who only need to prove “negligence,” i.e. that the statement was false — public figures have to prove “actual malice” and show the person they’re suing lied about them with malicious intent.
That higher standard was originally created as a way to protect the free press by allowing for honest mistakes, says Lynne Bernabei, who defended Humane Society President Kitty Block in a defamation case with co-counsel Debra Katz. “Now that there are so many right wing outlets who have no respect for facts, it will be interesting to see [how the law] develops,” she says.
And then there’s the matter of what Eric Trump said. Was it defamation?
For something to qualify as defamation, it must be a false statement presented as fact that injures the reputation of an individual. Opinion is guarded under the First Amendment, so Eric couldn’t be sued for calling Hunter “crooked,” even though evidence points to the contrary in Hunter’s dealings with Ukraine.
Eric throwing around the crime of “embezzlement” could give Hunter fair game to pounce, though. There has been zero evidence presented of Hunter being involved in any kind of embezzlement, making this statement clearly false. Hunter wouldn’t even have to prove his reputation had been damaged to move forward with a suit if he could show Eric falsely accused him of a crime.
But was Eric accusing Hunter of criminal activity? Or was he sharing his opinion that Hunter is shady with money? This is where the law starts to get weird. There’s something called “rhetorical hyperbole” that protects the exaggerated speech often used by politicians and public figures. It’s like if a sportscaster were to say “Stephen Strasburg murdered Dexter Fowler in his first at-bat.” Strasburg hasn’t actually committed murder, rather, the sportscaster is commenting on the prowess of Strasburg’s pitching through colorful, over-the-top language.
It’s also the concept that cleared Donald Trump when Stephanie Clifford (aka Stormy Daniels) sued him for defamation in 2018. Trump’s lawyers argued his tweet that called Clifford “a total con job” wasn’t stating she was a liar, but rather was expressing Trump’s opinion that Clifford wasn’t someone to be trusted. The judge threw out the case on the grounds that “expressions of opinion may be derogatory and disparaging; nevertheless they are protected by the First Amendment of the United States Constitution.”
Avi Kumin, who frequently deals with employee defamation cases, thinks Eric’s accusation of embezzlement could be protected by that argument. “If you said, for example, ‘Hunter Biden is a murderer,’ you would need to include a specific example of that,” he says. “Otherwise, it could be interpreted as rhetorical hyperbole.”
Eric never made a clear claim of exactly how Hunter embezzled, instead referencing there was “a lot of money” and it was “crooked.” So, in a way, the Trump lineage’s soundbite-y speech pattern might just be the thing to protect Eric from legal recourse.
“I [have my] concerns with this doctrine,” Kumin says. “It’s almost like the more hyperbolic you get with the comments, the more those comments get shielded [under the law]. We’re seeing the concept of rhetorical hyperbole stretched to the limits. Under the First Amendment you want all ideas to be heard, but you also don’t want politicians peddling conspiracy theories. And the Trump administration has trafficked conspiracy theories.”
Lee Berlik, author of “The Virginia Defamation Law Blog” and founder of BerlikLaw LLC, says judges would take into account whether “a reasonable person” would interpret Eric’s statement as fact or opinion.
“The Trumps and politicians say outlandish things all the time; they make bold statements on the campaign trail,” he says. “It’s almost like you expect politicians to be liars. Well, not liars, but to use more colorful language. If you’re a Trump and saying crazy things all the time and half the country thinks you’re a looney tune, [the public] isn’t taking [you] seriously.”
That being said, there’s always room for interpretation within the law. Bernabei thinks there’s a good chance a judge would interpret “embezzlement” as a statement of fact and rule in Hunter’s favor. It really comes down to how literally a judge interprets Eric’s speech, so, in something of a perverse twist, the more a judge interprets “Trumpspeak” as statements of fact, the better chance Hunter has of a successful suit.
Finally, there’s the question of what a hypothetical legal proceeding would look like—and whether it’s something Team Biden could ever conceivably want, whether or not it had a good case.
Bernabei thinks it’s unlikely the Biden clan would take attention away from the campaign trail and risk Joe Biden being subpoenaed for testimony, but taking legal action could be beneficial to the House impeachment inquiry.
Berlik concurs. “Truth or falsity and knowledge are the big issues in [defamation] suits,” he says. “So all questions about embezzlement and Ukraine would be fair game to see if [Eric’s] statement was intentionally false.”
While those are exactly the kinds of questions House Democrats are asking right now, the White House is presenting a huge roadblock by claiming the impeachment inquiry is wholly partisan in nature. That pretense wouldn’t stand if evidence were requested and subpoenas were issued in regards to Eric’s potentially defamatory claims.
And pursuing a defamation suit could be a loophole to reel in The Donald himself. While you can’t indict a sitting president, Bernabei says there’s nothing stopping a sitting president from being subpoenaed by a grand jury. In fact, there’s a long precedence of presidents being subpoenaed in criminal and civil cases. Nixon was subpoenaed for his tapes by the Watergate committee, and Clinton was subpoenaed for testimony when he was sued for sexual harassment by Paula Jones. The former led to Nixon’s resignation, the latter to Clinton’s impeachment.
However, there’s a high standard to subpoena a sitting president, Berlik says. A court would have to prove a president’s testimony is relevant and crucial enough to take them away from “the important work they’re doing.”