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I’m Alexander Heffner, your host on The Open Mind. And today I’m delighted to welcome Dan Abrams, carrying forward on this program, the tradition and next generation of Abram’s / Heffner conversations on this air. Dan Abrams is the chief legal affairs anchor for ABC News and CEO and founder of Abrams Media. He also hosts Live PD on A & E Network and the Dan Abrams Show Where Politics Meets the Law on Sirius XM. He is author of the new book “Theodore Roosevelt For The Defense: The Courtroom Battle to Save His Legacy.” As NPR recounts, “It’s an absorbing excursion into an epic 1915 libel case against then former President Teddy Roosevelt. In a truth telling sermon, advocating for a would be corruption busting gubernatorial candidate. Roosevelt accused Republican political boss, William Barnes of promoting evil men whose activities so deeply taint and discredit our whole system of government and the maladministration of public offices.” Dan, it’s such a pleasure to meet you and to have you here at this table.
ABRAMS: It is great to be here.
HEFFNER: You know your father, Mr., Abrams, Floyd, was a favorite guest of my grandfather.
ABRAMS: He’s the Mr. Abrams. I’m the Dan. Yeah, no, and I got to say, and I said this to you when before we came on, my dad loved coming on this show with your grandfather. I mean my dad Floyd Abrams did a lot of sort of TV appearances, et cetera back in the day. And I always remember him saying how much he enjoyed coming on this show because he really got to sort of dig in, talk about issues that he cared about, talk about issues that in his view mattered. So it’s great to be here, with you.
HEFFNER: Absolutely. This book is on par with that. There was an intellectual fervor and excitement with those exchanges between Floyd and, and Dick Heffner, my grandfather, the founder of this program, which were exciting, we might get to that including their very vigorous disagreement on Citizens United, which came towards the end of those episodes.
ABRAMS: Yes. Yes.
HEFFNER: First to the book, which is really an outstanding read. Teddy Roosevelt after he had served in office was sued for libel.
ABRAMS: Roosevelt’s president from, from around ‘01 to ’09. He then gives it up. He says, all right, I’ve served almost two terms. Remember he came in because William McKinley was shot. And he said it’s time for me to step down. 1912 he decides he’s going to run again. He feels that the Republican Party robbed him of the nomination that he should have gotten, that the party bosses ensured that in various states that he didn’t get the nomination, not because the people didn’t want them, but because they didn’t want him. Fast forward to 1914. Yeah, and you have this, this independent sort of Rooseveltesque candidate for governor, and he hands out a pamphlet in essence to announce his support. And as part of it, he blasts the party bosses and in particular William Barnes and in particular he felt Barnes was, I don’t want to say single handedly, but the leader of the movement against him in 1912 and so he blasts the party boss system, which the biggest thing about it back then was that senators were not elected directly by the people. It was the state legislature often controlled by the bosses that picked who the senators were. And so Roosevelt was decrying that system and talking about the need for someone much more independent minded to be the candidate for governor. And that’s what led to this. He accused Barnes of being corrupt. My goodness, the word corrupt back then.
HEFFNER: To our audience, it was a rather tame assessment of Barnes. There was no expletives, there was no…
ABRAMS: There was no personal attacks.
HEFFNER: Yeah, there was no ad hominem, vindictive attack like the kind we see on Twitter today from politicians.
ABRAMS: No. It was just basically saying, it was accusing Barnes of in effect, being in cahoots with the head of the Democratic Party and saying they’re trying to retain power so that senators aren’t elected directly by the people. And that was the essence of his argument. But you know, look, he’d made similar comments in the past, and again, this is political talk, this guy’s corrupt, this guy, he will … And so it was I think stunning to everyone, including those around Barnes, that he decided to file this lawsuit against Roosevelt.
HEFFNER: Is there any question about whether he’s going to comply with the legal mandate? It sounds like no from what I read.
HEFFNER: He was, he saw the suit and he was there.
ABRAMS: He was there. He was ready. He was ready to defend this case. And I think for him this was an opportunity to defend his legacy. I mean this trial was about much more than a libel case.
HEFFNER: Vindication of Bull Moose…
ABRAMS: Vindication of Bull Moose,
HEFFNER: Of his third party run.
ABRAMS: And vindication of his longstanding hatred, resentment towards this sort of party boss controlled system, which by the way, he was resentful of even before he became president. Remember, one of the things that happened when he was governor of New York was that they, the bosses pushed him to run to become vice president. Why? They wanted them out of the governorship. They wanted him in a know-nothing job as vice president so that they could again have someone they picked as governor of New York and Roosevelt reluctantly agreed and low and behold, he becomes president shortly thereafter.
So I think that was his goal in defending this. And you know he spent eight days on the witness stand.
HEFFNER: Right. Let’s talk about the trial. So initially it would be designated for Albany, that jurisdiction, but it’s moved to Syracuse because Roosevelt who has busted corruption is not, does not think he’s going to get a fair shake.
ABRAMS: Wasn’t that amazing. Think about it that. The former president of the United States is saying, I can’t get a fair trial in, in a city because the other guy’s so powerful there, because it shows you the control, right? Barnes. Albany, Capitol of New York. Barnes was so powerful in Albany. He controlled the biggest newspaper there. He was the player in town and the court agreed. Theodore Roosevelt can’t get a fair trial in Albany, so we need to move this case. And they moved it to Syracuse, New York and Roosevelt moved his life for six weeks out of Long Island, six hours away, to defend this case.
HEFFNER: His suit would be by today’s standard frivolous or thrown out.
ABRAMS: Totally. It would be thrown out.
HEFFNER: What were the respective arguments and how were they contextualized in the history of Alien and Sedition and the fact that, you know, libelous speech then was more curtailed and legally unjustified than it is today.
ABRAMS: Yeah. So, so back then, just the fact that he’d called Barnes corrupt, the trial starts with the plaintiff basically saying, these are the comments that were made. They call a witness who says, yes, I was the person who handed it out. And you hear the defense lawyers then say, well, you know, they haven’t shown that necessarily what he said was of and about Barnes, cause really all they have to show back then was it was defamatory. He distributed it. And it was of and about the defendant. If they could prove those things, the burden shifted to Roosevelt to prove it was true.
And the defense attorneys are sort of playing these games and saying, well, maybe it wasn’t about Barnes And so the, the attorney for the plaintiff for Barnes says, fine, let’s call him Mr. Roosevelt to the stand. Mr. Roosevelt was, this of and about Mr. Barns. Yes. Okay. Game on. I mean that was it. Roosevelt was not, and that’s the, that’s one of the great things about Teddy Roosevelt. He was a straight shooter. He wasn’t going to play games. He didn’t come up to Syracuse, New York to muck around with, oh well, you know, maybe I meant this. Yes, I said this about Barnes and I meant it. And then immediately the burden shifts to the defense, which by the way, and fundamentally different than today because of New York Times versus Sullivan,
ABRAMS: In 1964 fundamentally changed the legal standard for someone who’s a public figure. So the reason this would get dismissed is because back then all you had to show – defamatory of an about the person distributed or you know, made by the person, et cetera.
Now you’d have to show that the person who made the comments knew or should’ve known in effect, that it wasn’t true. And that’s a much harder standard to overcome. And that’s why the case like this would certainly get dismissed before trial. And this is why there were more libel suits back then. I mean, you know, you’re talking about an era, which is just post the duels. I mean, you know, libels were really serious stuff. Abraham Lincoln almost gotten a duel in the 1840s over something. He and his wife had written in a newspaper under a pseudonym. I mean, duels were common things based on libel.
ABRAMS: And we’re now in the period just post the duels where people are really bringing these cases to court in the last 40 years or so. And so, that, and you saw a lot of libel cases back then, but not a lot against the former president of the United States.
HEFFNER: Was it the first time you could record that a former president was to, had to face this kind of scrutiny?
ABRAMS: In a trial, yeah, I mean, you know, there were other, there had been other high profile cases there had been other efforts to, you know, to sue candidates. Ulysses Grant testified in a case post his presidency, but it wasn’t an accusation against him.
ABRAMS: So this was about theater Roosevelt. And I think it’s one of the reasons we were so surprised this became kind of a footnote to history was you had this, this case where Theodore Roosevelt is on the stand for eight days. Franklin Roosevelt walks into the courtroom and testifies on behalf of Theodore Roosevelt even though he was a Democrat, all this great stuff. And somehow it became relegated to kind of a footnote, which is part of the reason that we were so excited about having this 4,000-page transcript of the entirety of the trial.
HEFFNER: The rhetoric here, it’s tamer than the infamous scribblers in the Jefferson era. I mean, if you remember how Jefferson and Adams feuded over that presidential election. That got even more personal. And that’s why I was surprised to the degree that this political boss…
HEFFNER: Would have been so offended because accusations of corruption are in the tradition…
ABRAMS: Yeah, Yeah.
HEFFNER: …of American political theater and, and the lexicon…
ABRAMS: And they’re in the same political party,
ABRAMS: I mean, that’s the thing is Barnes and Roosevelt, you know, look, Roosevelt, as we talked about, sort of took the Republican Party and started his own, but in the end he was still a Republican.
HEFFNER: He is accusing Barnes and the New York state GOP of an alliance between crooked business and crooked politics, which resonated in contemporary light because we have a president who espouses the idea of crooked politics and he, like that era’s GOP, is in incest with kind of corporate greed. And machinations. How did you find this case relevant to thinking about litigation surrounding the presidency going forward from this point in the future? You say, you know, there are two important Supreme Court precedents. One is that the president can’t be criminally liable when he’s serving in office. But prior to that, the precedent for folks who engage in speech against public officers is largely being protected.
HEFFNER: So how did you see this in a historical and contemporary light?
ABRAMS: Now look: the most important thing is it’s amazing how relevant Roosevelt’s critiques are today. He’s talking about money and politics. He’s talking about the fact that corporate, corporations are, you know, making allies out of politicians to try and get their stuff through, he’s talking about in effect, lobbying. I mean these are the same issues that we face today. And so I think that’s first and foremost the most striking thing about this.
But, I think the second thing is that it really was comparatively tame, what, you know, your point that, you know, this was just political talk. The idea that this ended up going to trial shows you how different the law is today in the area of libel than it was then. You know, there was really, I mean, the defense tried to get the case dismissed, but it was a tough argument to get a libel case dismissed. I mean, they had something called libel per se, which effectively meant if it’s defamatory, if it says something more akin to British law today, if, if you say something that’s going to defame someone, I’m going to bring them down in the, you know, public estimation, etc. You can get sued over it and then you have to prove it was true. That can be tricky for a defendant. So.
HEFFNER: Do you think the viciousness of today’s rhetoric is it attributed to the fact that those defamation suits largely don’t go forward now?
ABRAMS: I don’t think it’s directly related to the law. President Trump would argue that it is President Trump has talked about changing the libel laws. We need to make them tougher, so to speak. But remember, that’s not about the laws. That’s about the Supreme Court decision on this. You know, the Supreme Court would have to overturn New York Times versus Sullivan.
HEFFNER: Did Justice Thomas say that he might be open to that possibility?
ABRAMS: Yes, yes he did.
HEFFNER: I mean, largely the Senate majority leader and Republican allies stay mum.
HEFFNER: When Trump will say something that is antithetical to our present reality like that.
HEFFNER: But if we were there in that era, there was no reason that amidst the rise of authoritarianism globally and that kind of rhetoric that, you know, the laws could change.
ABRAMS: Well look, you know, the strongest argument is to say it’s kind of what the British system is, you know, that we could move more towards the British system. The argument against it is that we have a First Amendment and that the First Amendment ensures more protections here than in other places.
HEFFNER: And the commerce of Internet today in effect, guarantees these companies that have sprung up as the new generation: e-commerce, social media. They wouldn’t be there if it wasn’t for that ironclad Abrams protection. Right. I mean, those businesses couldn’t operate in the same way they do today.
ABRAMS: Well, look, I mean, and you know, and the law for example, with all of these you know, places like, you know, Facebook and Instagram and any place where you can, and in fact, look, I have a, a website called Mediaite. I mean if I was responsible for every comment that someone made, I could get sued every day. People make false and defamatory comments in my comment sections all the time. And that’s why I refer to Facebook is people make… Now, if you are not making it in the context of, for example, a comment section, there could be a lawsuit. Meaning if I’m on my Facebook page, I defame you and I say something false and defamatory about you, you could still sue me. If I say it on Twitter, you can still sue me. People forget that. That you know, just because it’s social media doesn’t mean you’re immune. That’s different than talking about, for example, a comment section where if they can identify the comment or that person could get sued. But the entity and your question about the sort of the entities themselves can’t get sued unless there’s some indication that you know they are in effect in control of everything being said.
HEFFNER: Dan, because you are an authority on T.R. and also contemporary legal order and investigations, where is this president most vulnerable?
ABRAMS: The biggest concern for Trump would be the state investigation for example, in New York State. Because of, you know, he did a lot of business here has charities here, et cetera. The idea that Trump has, let’s assume he doesn’t get reelected, that he’s going to be put in cuffs on January, 2020, 2021 I think is a pipe dream.
HEFFNER: Oh sure.
ABRAMS: For those on the left. So, you know, you separate out criminal and civil, right? I don’t think he’s going to likely face any criminal action. Although, by the way, people forget the campaign finance violation that Michael Cohen is now serving time for, according to the U.S. Attorneys in the Southern District of New York, they believe it was ordered by Donald Trump. That would be a crime. Now, is that the most egregious crime in the world? No. Is there a defense? Yes, but the fact that they in their sentencing memorandum about Cohen made it clear, they think he committed this crime is kind of astonishing.
Putting aside the Mueller report for a moment. So and then there’s the civil side, he’s facing a lot of civil lawsuits. And I think a couple of them in particular, one woman who’s accusing him of defamation for calling her a liar about something that she said happened with him, is going to move forward and he’s either going to have to settle or he’s going to have to testify at some point or another.
HEFFNER: What about that dynamic when a citizen is suing a public official for defamation?
ABRAMS: But see…
ABRAMS: But this wasn’t when this wasn’t, but Trump’s not, he wasn’t making it in his, in his sort of public capacity.
ABRAMS: He was just insulting her personally.
HEFFNER: Right, right.
ABRAMS: And this goes back to insulting someone on Twitter, right. You can be sued for that.
HEFFNER: And the Knight Institute here at Columbia sued the president for blocking folks on Twitter because in effect, he makes nominations on Twitter, he makes public statements on Twitter that are tantamount to press releases and executive decisions that we’ read about in the history book like this, that you’d go back to the archives and read Trump tweets for the newest information about his appointments and policy.
ABRAMS: Yeah. And so, yeah, look, the reality is that the president is using Twitter in both a personal and professional capacity and anyone who, for example, let’s say a lawyer who sends out a threatening note to their contractor on their law firm stationary knows that, you know, you’re going to get, you can get in trouble for that. You want to use your law firm stationary you’re implying that that came from the law firm. It’s a similar issue here, which is he’s the President of the United States.
ABRAMS: And this is his Twitter account,
HEFFNER: And I know you said that it’s somewhat implausible that the Emoluments suit could go forward in a meaningful way,
ABRAMS: But it’s already been dismissed…
HEFFNER: Right In one… Not totally though.
ABRAMS: Yeah, correct.
HEFFNER: But you know, if you think about presidents, it’s not liberal presidents, but moderate conservative presidents, even Nixon, one of his in effect his inspirations. Eisenhower, certainly Truman, Roosevelt, if you think about presidents, they would be appalled at the definitive findings of the Mueller report and the absence of any clear declaration of Mueller’s mandate to investigate that what I referred to before, that pipeline between Trump enterprise and Russia. And it hasn’t been proven authoritatively or legally that that existed. But Mueller also wasn’t asked by those congressmen and senators you know, really what about the idea that this person that was elected president is beholden to non American interests. And, I just think that Roosevelt and those subsequent presidents that I mentioned would be very concerned about the betrayal or abandonment of American interests.
ABRAMS: Well look, there are some significant similarities between Roosevelt, Teddy Roosevelt and Trump. And there are some significant differences. And one of the major differences is that Teddy Roosevelt cared enormously about probity and truth and he cared enormously about giving the people a straight deal. And there not being even a whiff of impropriety on the part of the president and its elected officials. He took that stuff really seriously. And so, yeah, on this issue, he would definitely be concerned about, you know, the put you know, the optics and the reality of, you know, what actually may have happened. But again, I think, I think you may be too focused on Trump himself. Meaning I think there’s more of an argument that there ought to be an investigation into those around the president and their potentially being influenced by foreign governments because they’re the ones in President Trump’s ear. I mean, you know, this idea that, again, you have Paul Manafort at the time was the campaign manager, sharing polling data with you know, a key Russian. That’s just the tip of the iceberg. And so I think that those are questions that that need to be answered.
HEFFNER: We recently hosted University of Missouri professor and authority on impeachment, Frank Bowman. And he was defining narrowly, crimes and misdemeanors. And you know, the framers had a very specific idea of treason and it had to do with war. But those who acknowledge the hacking of the DNC today, not in 2016 are aware of the fact that that is war. Kathleen Hall Jamieson wrote a whole book about cyber war analogous to the tactics of war. So the mandate of treason and if Mueller had played his cards differently, you know, both looking at the advisers and Trump himself, we might be in a different conversation right now about probity as it comes to who serves in the office. But I wanted to ask you this final question. As you look at law and the impact of law on 2020 and whether we really get a fair and free election in 2020 are where are you most focused on, you know, this, this interaction between the candidates and the voters and the respective campaigns. Because what happened with Russia and the infiltration of the DNC was akin to Watergate, drip, drip, drip. How can, how can the law protect us in 2020?
ABRAMS: I don’t know that the law per se… law enforcement has to protect us. The law itself can’t. It’s illegal. What they did is illegal. Okay. There’ve been 25 Russians indicted in two indictments, 13 and 12 for what they did to us; none of them are coming back. So it has to be law enforcement that is protecting us. It has to be that we are even more vigilant this time around, that we don’t allow a foreign government to try to influence the election. And while there has been foot dragging on this in the congress, law enforcement’s taking this stuff seriously. Listen to Chris Wray, the head of the FBI. He’s, look, he may not, he’s on it. Does that mean we’re safe and nothing’s going to happen? Of course not. But my point is law enforcement is taking this really seriously, even if the president and maybe even the Senate majority leaders is not.
HEFFNER: Are you looking at anything else, Dan, in terms of voting rights and the mechanisms that are at work to prevent people from voting?
ABRAMS: You know, look, I, I’m looking at hopefully no more false accusations of voter fraud. I think the fact that we’re still talking about the, you know, the president is still suggesting that there may have been voter fraud or that there was voter fraud, is very destructive to faith in our voting system. So, so the, the main things that I’m focused on are the big picture stuff. You know, it’s not the sort of minor, well, you know, in this district they had a problem. It’s about; I want to make sure they don’t get into our voting systems.
ABRAMS: That they tried to do it in 2016. That’s my, A one concern. Number two, I want to make sure they don’t hack into anyone else’s, you know, emails that are relevant, into a party and to get somebody to win. You know, that’s scary stuff. So I’m really looking at it more from 10,000 feet than sort of as from down on the ground at as much.
HEFFNER: Well, those are critical questions, Dan. Thank you for being here and continuing this tradition.
ABRAMS: It was great to be here. Really fun.
HEFFNER: Thank you Dan. And thanks to you in the audience. I hope you join us again next time for a thoughtful excursion into the world of ideas. Until then, keep an open mind. Please visit The Open Mind website at Thirteen.org/OpenMind to view this program online or to access other interviews and do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.