The attorney for the Swift vets against Kerry, the highly esteemed Mr. O’Neil, has replied to the Democrats’ questionable demand letter to television stations. You will recall that the demand letter called the Swift vets hard-hitting add “libelous”, called the group a “sham group” and threatened legal action against any television statements airing the ad.
Ed Morrisey is all over it, and has a copy of Mr. O’Neill’s response. You need to read it, but I will summarize it. In short, it meets innuendo with facts, sets forth the Swift vets’ corporate legitimacy under Section 527, and basically lays out a court-quality response to the Dems’ porous demand letter.
You also need to check out the comments to that entry, and I’m not saying that just because I responded. One of Ed’s correspondents points out that Kerry says the political turning point of his life was Christmas Eve, 1968, when he sat (illegally) in Cambodia and listened to President Nixon lie to the media about the absence of American troops in Cambodia. As commenter Rocket Man points out, Lyndon B. Johnson was the President on Christmas Eve, 1968. But who’s counting, right?
I’ve got some thoughts about the legal and public relations strategy being employed by the Swift boat vets, and what the Kerry strategy will be be, based on my professional experience. Read on, if you care…
As an attorney with some litigation experience, I enjoy comparing and contrasting the Dem’s demand letter, to Mr. O’Neill’s response. While the Dem letter is a pile of carefully prepared innuendo wire-bound to strong-arm threats, saying little but saying it loudly, O’Neill’s responds with carefully prepared facts, much in the way a skillful defense attorney would respond to claims made in a plaintiff’s initial filing in a civil case. Oh wait a minute, that’s what he is. And plaintiff’s attorneys… I wonder whose camp they are in? But I digress.
That O’Neill replied with such a beefy document in such a short period of time, indicates that he probably didn’t prepare the document this week. Ordinarily, even under rush-rush circumstances, it takes a solid week to crank out something of that quality, even if you have a couple partners, six associates and a small platoon of paralegals on the case. He clearly had affidavits in hand long before the ads were aired.
This means Mr. O’Neill is probably several steps ahead of Kerry’s attorneys. Any similarly dishonest and thuggish moves they make, will likely be met with arguments of some legal force. I wouldn’t be shocked to see direct litigation between the Kerry campaign and the Swift vets, initiated by the Dems to silence the vets voices. This response from the vets raises the stakes, and will likely force the Dems to respond with an escalation of their threats.
So what do the Swift vets need to prepare for now? Good question.
Some years back, I did some lawyering for a conservative advocacy group. We found that if you respond to the Dems’ innuendo and slurs with clear statements of fact and law, boiling down inarguable facts into talking points for the public faces of your group to use, that you can win in the court of public opinion. And it goes without saying that when you reply in that manner, that you win in the courts as well.
The Swift vets are probably mindful of the fact that there is no way to beat the spin machine other than by putting out simple, easily remembered facts, using some attractive, utterly respectable faces. The Swift vets leadership had better have no extramarital affairs, public or private controversies, business ties to Halliburton, or angry ex-wives lurking in the closet.
Assuming the Swift vets can counter the spin machine, they will remain a relevant factor in the campaign, and the Kerry camp will have only the option of litigation if they wish to silence the vets.
Any direct litigation against the vets would have two potential aims – to either shut up the Swift vets immediately and permanently, or to shut them up immediately and for 90 days by winning a short term injunction against their ads, lasting for the duration of the litigation, coupled with drawing out the litigation over the length of the election season. While the Dems would lose the long-term battle to silence the vets, an injunction for the duration of the litigation would have the desired effect, of silencing the Swift vets during the period when they could influence the election.
Based on what I’ve seen so far, I’m comfortable stating that the Kerry-ites cannot win in court on a libel or slander theory, which is all they’ve put forward so far. Nor would their allegation that the Swift vets are a “sham group” – implying some type of tax fraud in corporate organization – hold up. The IRS would have to investigate that allegation, or perhaps the Federal Election Commission could undertake to silence the vets. Yet that is unlikely. We all know how slowly the IRS moves, for one thing. And the whole concept of a sham 527 that violates election laws is on shaky ground, for several reasons: (1) the Dems recently beat back a Republican challenge before the FEC arguing against the legality of 527’s in political advertising; (2) Dem 527’s are much more closely party affiliated than the Swift vets’ 527, meaning their 527 is on more solid ground than the Dems’ wholly-owned subsidiary 527s challenged in the recent case; and (3) the FEC is unlikely to reverse itself just months after the earlier ruling. In other words, most 527’s are party creatures to begin with – sham organizations that live under the illusion of being distinct entities from the political parties. It would be very hard to argue that a 527 based in Houston and apparently independent, is more of a sham than a 527 that has representatives just down the hallway, in the same building as DNC offices in Washington…
What it boils down to, is that the Dems’ only real courses of action are a litigation effort, or a public relations campaign to terminally muddy the issues and to discredit the Swift vets, and even ill-founded litigation could be of assistance in to the latter strategy. So the Dems’ case is a dog, they know it, and Kerry is in trouble.
There is of course a wild card in all of this – the manner in which the television stations and networks respond to the demand letter. If they drop the ads, there is no danger of the ads having any widespread influence. This would appear to pit television stations’ love of money, against their love of left wing politicos. I’m really not sure how to handicap that race; I know I wouldn’t put my money on either horse. If there is any identifiable trend, it’s likely that Blue state affiliates refuse to run the ads, and Red state affiliates agree, thus preaching to the choir and having little effect on the election. So, in the end, the Dems wildly inaccurate, dishonest smear letter may achieve the desired effect, in spite of the excellent efforts of Mr. O’Neill and the vets.
The fact that the controversy over this ad is getting little mainstream press coverage, is not promising. Time will tell.