Assuming arguendo that Barr will abuse his authority, the question arises as to how he will go about it. Ordinarily, New York state trial courts do not solicit or accept amicus curiae briefs, so that route is likely closed.
There’s no real possibility of removing the case to Federal court, since the Trump campaign consented to the New York court’s jurisdiction by filing the action in the first place. I’m sure that the Times will find the New York State courts to be a more friendly forum!
Assuming that the case survives a motion to dismiss, Barr could certainly participate as plaintiff’s counsel (yes, it would be a conflict of interest, but that has never stopped him). But I have to imagine that the game plan is to have the case fail on a motion to dismiss, and then mount lightning-fast appeals: New York State Supreme Court, Appellate Division of the First Judicial Department, then New York State Court of Appeals; then the US Supreme Court.
I think that the game plan is to attack not only New York Times v Sullivan, but also Curtis v Butts and Brandenburg v Ohio. The arguments will be advanced that:
- the statements made in the Times piece were false - as proven by the fact that Trump was acquitted by the US Senate.
- the statements were made with actual malice. (‘Malice’ will be extended to encompass any political opposition.)
If the prosecution were criminal, they would also argue that:
- the statements, given their inflammatory nature, would meet the Brandenburg two-pronged test of ‘directed to inciting or producing imminent lawless action’ and ‘likely to incite or produce such action.’
Since we’re in New York State court here, the relevant constitutional provision is not the First Amendment (although the Fourteenth Amendment applies it to the states) but also the New York State Constitution, article 1, section 8:
Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
(The second sentence applies only to criminal libel or sedition.)
Frankly, I don’t think that anyone in the campaign is thinking that far ahead. This whole ridiculous case is more at the level of ‘if you throw enough mud, something will stick.’ Of course, the campaign would be happy if our free-speech jurisprudence regressed to Whitney v California, but I don’t see how this case could do it. It’s in the wrong court, and brought under the wrong law. (Prosecute the Times for espionage or sedition, and it would actually stand a chance given how the R’s have stacked the federal courts.)
Even Whitney was a squeaker of a decision. Brandeis’s concurrence was actually full of arguments against the holding and he refused to overturn the state court’s ruling on fairly narrow technical grounds. Based on his arguments - which are still worth reading today - the Governor of California granted Whitney an unconditional pardon.
Most likely, this is Trump saying, “I don’t care whether we have a case or not! Sue them anyway!”
