Google produces more lawyers than anyone. What would we do without the Google JD. I can almost read the disclaimer in most posts, “I’m not a real lawyer, but I did do a Google search.” The Roy Moore fiasco didn’t create Google Lawyers, but it again shows us that most Americans on social media seem to think a Google search on legal terms is the functional equivalent of a Juris Doctorate degree. It’s not.
The Roy Moore sexual abuse allegations reside at the intersection of law and politics. It’s a busy street. Americans have the right to express what they think the law should be, though that is often different than what the law is, or what the law commands.
The Constitution does not require anyone to have a smart, reasonable, or justifiable opinion. Neither does the internet. But having some idea of what one is talking about would help all these angst-ridden, lawyer-wanna-be, politiphiles.
The Moore controversy has inspired many Americans to pop up on social media spitting out legal jargon … often with a profound sense of “gotcha” attached thereto.
Let’s examine some of the legal expertise washing across social media:
Mr. Moore is entitled to due process! No, actually, he is not. Due process is a set of legal rights and procedures to which we are entitled from the state if the state is charging or prosecuting us for a crime. Mr. Moore is not being prosecuted by the state. He is instead, entitled to the much uglier, less truthful, far less exacting political process.
Mr. Moore is innocent until proven guilty! That would be true if Mr. Moore were being charged and tried for a crime. He is not. The presumption of innocence attaches to each of us when we are charged, and it commands the finder of fact to presume we are innocent until the state meets its burden in proving we are not. It would be great if Americans presumed everyone innocent and required that any innuendo be proven before it is believed. But, they don’t. Americans are not required to presume anyone innocent of an allegation, gossip, or nasty rumor. That’s a personal judgment, or in this case, a political judgment.
I swear, I found this guy AFTER writing this piece. It was too good not to include:
— Paul Nehlen (@pnehlen) November 15, 2017
Just for good measure, we had to endure this same idiocy from Bill O’Reilly, who thankfully is no longer on the air to say the stupid things he now tweets:
In America, we now have trial by media. There is no going back to innocent until proven guilty. All allegations will be treated as facts. And the country will pay a huge price for that.
— Bill O'Reilly (@BillOReilly) November 11, 2017
Mr. Moore shouldn’t be judged until the evidence is in! In where? What evidence? This isn’t a criminal trial or prosecution. Americans can “judge” Mr. Moore on his haircut, his religious beliefs, or their perception of his credibility. Americans are the most judge-obsessed group on earth. From our TV singing shows to our judgmental culture, we are always making judgments about people based on dress, color, accent, region, education, physical appearance, or a million other factors. This is a political campaign, judge away.
There is no evidence Moore did anything wrong! Again, this isn’t a trial. However, there are ample witnesses’ statements about Moore and his alleged conduct. Those witness statements include Moore’s denials. In a real trial that is mostly what we get, witness statements. Sometimes we get documents … like say a yearbook. Sometimes we get locations or witness cross-references that help to verify events, places, timing, motivation, and those documents. All of that is evidence, and it is up to you to judge those issues to reach your own conclusions. I walked through the allegations meticulously after the initial Washington Post article, which crazy me … I actually read.
It’s hard to evaluate allegations or facts if you don’t know what they are?
No one should judge Roy Moore until he is proven guilty! Why Not? Americans have the right to make any judgment they want on character or any other factor. In addition, Moore is not on trial, and he can’t be tried for these allegations either in a criminal court or civil court. Ironically, the only “judgment” against Moore in this case will be in the court of political opinion. And, even if Moore were somehow found guilty, or innocent, what would stop Americans from holding their own view about the legitimacy of the outcome of the case?
Have you ever heard of OJ Simpson or George Zimmerman?
That’s the easy legal stuff. Here’s the harder analysis, particularly for Google JD holders who often have neither the basic concepts of law on which to rely nor the training to perform a requisite objective analysis.
Who in this dispute faces legal jeopardy if found to be lying? Many people are talking about the timing of these allegations, the sources, the involvement of a radical, leftist like Gloria Allred, and the Post’s agenda in pursuing this story. Everything is fair game for Americans to judge. In a perfect world, we draw reasonable conclusions though objective, rigorous analysis of facts and allegations. We don’t live in a perfect world.
Few have asked or considered the question I posit above.
If Moore is found later to be 100% culpable by everyone’s standard, a near impossibility, he still won’t and can’t be charged criminally. He can’t be sued for civil liability. His punishment is loss of a political race or Senate eviction if he wins. That’s it. If the accusers are found to be part of a purposeful lie, they can be punished criminally and they can be sued and held financially liable.
So, who is taking a risk with their liberty and finances in this case? Is it Moore or the accusers?
Think about that and then this:
Why didn’t Moore Sue the Accusers? Last night, Moore’s legal counsel fired off a letter to a small Alabama media outlet threatening, if not promising to sue it for multiple reasons, including the suggestion by Moore that the signed yearbook is a fraud.
As I wrote last night, Moore has a Zero-point-Zero chance of winning this case under existing legal doctrine protecting free press and requiring a public person to prove that any defamation was the result of deliberate malice, made knowingly, and for the purpose of destroying Moore with information the paper knew to be untrue. Moore couldn’t win that case, even wiht the best lawyer.
Real lawyers are laughing at these threats. The letter is nonsense, or as we say in the legal business, nonsense on stilts. It’s a publicity stunt. The threatened action smells like a frivolous, Rule 11, suit for defamation. Moore may not know that, but his lawyers should.
The letter was designed to get one headline, which is, “Moore to Sue for false attacks.” That headline would then be tweeted and posted around to mindless partisan drones.
Still, why not sue accuser Beverly Young Nelson? It’s her story. It’s her yearbook? If this is a lie, then why not go after the liar? If this was made up on purpose, brought forward for malicious reasons, and set out for the purpose of destroying Moore, Ms. Nelson did it all, didn’t she? Why not sue her?
Just today, Moore’s painfully terrible lawyer held a presser suggesting that Ms. Nelson should hand over the “yearbook” for examination to determine whether it is authentic or not.** Sue her and obtain it in discovery. Write her a letter today to ensure the yearbook isn’t destroyed or adulterated, then sue her, file for discovery, and if necessary get a protective order to keep the yearbook safe until your experts can examine it.
Do you know why this lawyer hasn’t done that? He’s either incompetent, or he doesn’t really want the answer of an expert analysis, or the discovery brought on his client by a lawsuit.
Why didn’t Moore sue the alleged victim, a woman who apparently was his wife’s high school classmate? For those without a law degree or real, legal experience, the answer is may not be apparent. Google it.
Never mind, here it is.
Moore didn’t want to sue the accuser because to defend herself, she has the complete defense of truth. That is, she would get to try this case on the merit of the allegations, and in so doing obtain more discovery, find more witnesses, and cross-examine Moore. Suing Ms. Nelson would force an actual outcome demonstrating the veracity of the charges.
You would think Moore would want that if this was all false.
If Mr. Moore never knew her, and he didn’t even remember the restaurant from the town in which he grew up, or in which he practiced law, why doesn’t he go after this obvious fraud?
Obviously, there are political considerations to suing an alleged sexual abuse victim in a national climate of sexual abuse fever. But he literally has nothing to lose, but the case. Poor political judgment seemingly never stopped Moore before anyway.
In fact, Moore supporters and Moore like to claim that he stands up for what is right no matter the cost, which is why he was thrown out of the judiciary … twice. It is also why he claims he slept on sandbags in Vietnam to prevent his own soldiers from throwing a grenade under his bunk while he slept.
Moore claims he stands up and does the right thing even if it costs him his job or imperils his life. Good for him. If he has been falsely accused here, then go after the false accusers.
Ms. Nelson offered to testify under oath about this. Will Mr. Moore?
— Lauren Walsh (@LaurenWalshTV) November 14, 2017
I will take both their depositions for free. Or, we can just get some internet lawyer to do it.
**Moore’s lawyer did introduce bias at this presser, which is good and fair. He explained that Moore had been the judge in Ms. Nelson’s divorce case, suggesting that was either her motivation and/or her failure to disclose that goes to her credibility. That’s true. What he didn’t tell us is whether or not she got a raw deal. Maybe she did well, and that’s why she kept quite longer. Maybe she got screwed, and she was terrified that he would hold sway over her as the chief judge, again keeping her quiet. All that bias comes out in discovery, at deposition, and under oath … which Moore can initiate at any time.
Author: Richard Kelsey
Richard Kelsey is the Editor-in-Chief of Committed Conservative.
He is a trial Attorney and author of the new book on higher education, “Of Serfs and Lords: Why College Tuition is Creating a Debtor Class”
Rich is a former Assistant Law School Dean and Law Professor. At Mason Law Kelsey conceived of, planned, and brought to fruition Mason’s Center for the Protection of Intellectual Property, known as CPIP, drawing on his expertise as a former CEO of a technology company specializing in combating cyber-fraud.
Before returning to private practice, Rich taught legal writing and analysis and an advanced litigation seminar. In 2014 he was elected by the graduating class as the faculty speaker at their graduation.
He is a regular commentator on legal and political issues in print, radio and on TV. Rich has appeared on hundreds of stations as a legal expert or political commentator. He provided the legal analysis for all stages of the Bob McDonnell trial and appeal for numerous outlets including NPR and WMAL.
Rich also writes on occasion for the American Spectator and CNSNews.com.
In his free time, Rich is part of the baseball mafia of Northern Virginia, serving on numerous boards and as a little league and travel baseball coach.
His Twitter handle is @richkelsey.