The wonderful thing about community-diagnosed ADHA is waking up in the middle of the night and immediately thinking about everything going on in the world.
Last night it was the Kerkhoff lawsuit.
In the practice of law "less is more". Many people think "more is more" - that a long, passionately drafted proceeding surely must be better than "cut and dry".
More often than not, this is wrong, and re-reading the sprawling 127-page novella defamation lawsuit against Baker, Hanneman and The Blaze, you realize why.
Even assuming Baker and Hanneman's exposé about Kerkhoff is wrong as a matter of fact and she has absolutely nothing to do with the pipe bombs (which would be a very unfortunate position for her to be in), she will have to prove actual malice.
That is to say she will have to prove that Baker, Hanneman and The Blaze "knew of the falsity of the allegations" or acted "with reckless disregard for whether it was false or not".
Re-reading the sprawling lawsuit, not only does it fail to demonstrate actual malice, it actually includes allegations that directly contradict the element of actual malice.
Specifically:
1) The ODNI drafted an internal memo apparently linking Kerkhoff to the pipe bombs. Yes, the lawsuit alleges that the ODNI memo was based on a tip from Baker et al. But that changes nothing from the perspective of "actual malice" if that ODNI memo "made it to the White House" as alleged, and was sufficiently plausible that the White House and other agencies acted on it.
2) The allegations were sufficiently plausible that Kerkhoff was placed on administrative leave.
3) The allegations were sufficiently plausible that "FBI vehicles descended" on her home and did an extensive search and that the orders came from "higher up".
4) The allegations were sufficiently plausible that Kerkhoff was asked to do a polygraph - a polygraph that the interrogator told her she "had failed" (all alleged in the claim).
5) That Gait Analysis, if done properly, can be "scientifically accepted".
Par. 149: "Defendants refused to disclose what “software algorithm” they used, what methods it applied, whether those methods were scientifically accepted..."
6) The rebuttal evidence to Baker's exposé (the "video of her playing with her puppies" ) as reported in the CBS News Article is at the very least inaccurate and does not refute the exposé. The lawsuit specifically alleges that Kerkhoff says she can't remember what she was doing on Jan. 5.
Par. 135: "She demanded that Ms. Kerkhoff describe in detail what she was doing the night of January 5, 2021, and Ms. Kerkhoff repeatedly explained that she did not remember."
7) The lawsuit specifically alleges that the "alibi video" is not of Kerkhoff playing with her puppies (as per CBS), but of her dog along sleeping and "twitching".
Par. 185: "Bunnell encouraged Ms. Kerkhoff to search her phone for exonerating information. She found a video that Mr. Dickert recorded the night of January 5, 2021, in which Bella, their greyhound, twitched in her sleep. Ms. Kerkhoff’s voice was clearly audible on the video, and metadata established that the video was taken almost exactly when the pipe bombs were planted"
And this is just a scratch after re-reading the lawsuit.
Again, even assuming Kerkhoff was misidentified in the exposé, the allegations in the lawsuit don't describe actual malice. In fact, it highlights that what Baker and Hanneman did, even according to the allegations of the claim, are closer to the exact opposite of "actual malice" in the legal sense.
Even if they are wrong as a matter of fact, the allegations in the claim itself actually undermine any argument for "actual malice" in the legal sense.
My humble assessment.
