Trump lawyer Charles Harder: both dishonest and incompetent

Trump lawyer Charles Harder: both dishonest and incompetent

There’s a saying that you should never attribute to malice what can adequately be explained by incompetence. Over the past month, however, Donald Trump has repeatedly shown that these two possibilities are not mutually exclusive. The same observation applies to Charles Harder, a lawyer who claims to be representing Melania Trump in a lawsuit against the Daily Mail. As we’ll see below, though, Harder is probably more accurately described as one of The Donald himself's newest legal goons.

Harder shares his boss’s combination of malice and incompetence. Among other things I'm going to be showing that Harder has in at least one case lied in a court filing. That’s a serious breach of legal ethics that could get him disciplined by the state bar, or even thrown in jail in a state like New York. On the other hand, Harder has done a number of things that reek of sheer incompetence, which suggests he doesn’t deserve the fearsome reputation his role in Terry Bollea’s lawsuit against Gawker earned him

Terry Bollea, for those who don’t know, is the ex-professional wrestler who used to go by the stage name Hulk Hogan. Bollea was fired from his job with the WWE when it was revealed that a secret sex tape featuring Bollea (which Gawker had posted a two-minute, mostly non-sexual excerpt from) included him going on a racist rant about his daughter's boyfriend. On the tape, Bollea could be heard saying:

I mean, I’d rather if she was going to f–k some n—-r, I’d rather have her marry an 8-foot-tall n—-r worth a hundred million dollars! Like a basketball player! I guess we’re all a little racist. F–king n—-r.

When I first heard about Bollea’s lawsuit against Gawker, I was initially on the side of “screw ‘em, it’s Gawker”. Yet I’ve since come around to agreeing the lawsuit was in fact a serious threat to freedom of the press—as many people argued at the time.

Let’s start with the fact that the lawsuit was funded by noted fascist billionaire Peter Thiel. It's often claimed Thiel was getting back at Gawker for "outing" him as gay, though the author disputes the claim that Thiel was closeted at the time and the essay in question has insightful things to say about homophobia in the Silicon Valley of 2007. In retrospect, Gawker probably did Thiel a favor, since being out as gay has helped Thiel distract people from his otherwise profoundly ugly political agenda.

When I wrote my previous article on “Melania”’s lawsuit against the Daily Mail, I knew Harder was handling the case and I knew he had also handled Bollea v. Gawker. I figured probably Thiel had made an introduction at some point—after all, Thiel had given a speech supporting Trump at the Republican National Convention. Otherwise I didn’t give it much thought.

Then I started digging into Harder, and things got dark pretty fast. For one thing, there’s the curious way Harder described the racist rant from Bollea in an article he wrote for the Hollywood Reporter, after the jury reached its verdict. Harder described Bollea’s remarks as merely “racially insensitive”, and encouraged his readers to have pity on Bollea for the “dark time” the leaking of this racist rant put him through.

That use of “racially insensitive” is curious, because I’ve heard the exact same euphemism used to describe certain comments by our great nation’s current Attorney General, Jeff Sessions. These comments include calling a white civil rights attorney a “traitor to his race”. If such comments from Bollea and Sessions aren’t racist, nothing is. Presumably, that’s the point. In the America Donald Trump and his henchmen want to create, there’s no “racism”, just “racial insensitivity” that people must be instantly forgiven for even as they take part in assaulting the rights of people of color.

But I’m getting ahead of myself. Because it turns out Bollea’s lawsuit is only one of at least ten lawsuits and legal threats against Gawker that Harder has been involved in. Whatever you think of Bollea’s suit, these other actions are obvious garbage, brought over plainly legitimate—and in some cases, quite good—pieces of journalism.

When I first started digging in to these legal actions, Harder’s role in these other cases looked merely ridiculous. Take, for example, a case Harder brought on behalf of a journalist named Ashley Terrill. It all began when Terrill had contacted Gawker writer Sam Biddle (who currently works for Glenn Greenwald’s The Intercept). Terrill told Biddle she was working on an article on Tinder co-founder Whitney Wolfe (who left the company and sued for sexual harassment).

In Biddle’s telling, Terrill’s article was intended to show that Wolfe “neither a victim nor a co-founder, but a fraud who parlayed a sex lawsuit into a career boost and fame”. Furthermore, according to Biddle, “Terrill says that only days after Wolfe learned of her investigation, she became the target of patterned surveillance.”

After Biddle published an article telling the story in-depth, Terrill sued for libel, with Harder as her lawyer. The filing for the lawsuit, though, is unintentionally hilarious, because it makes it obvious that Biddle’s article was substantially true:

14. Terrill read Wolfe’s complaint, and certain statements in it seemed inconsistent with Terrill’s recollection of the events as described toher by those with first hand knowledge. Terrill then went back to her research, including her recorded interview of Wolfe and others. Terrill found that there were potentially inconsistences [sic] between Wolfe’s allegations in the lawsuit and Terrill’s past research, specifically Wolfe’s previous statements to Terrill.

15. In light of the inconsistencies,Terrill shifted the focus of her research, and started researching the founding of Tinder. Terrill reviewed numerous materials, reached out to more than thirty individuals and conducted on-the-record interviews with at least fourteen sources close to the subjects of this new story. Terrill sought to fully and fairly research matters which she believed had been only superficially covered by numerous news outlets who had not investigated the underlying facts.

16.Throughout the course of her research, Terrill sought only to ascertain the truth regarding Tinder’s history as well as the allegations in Wolfe’s lawsuit.

17.After leaving Tinder, Wolfe joined two other ex-Tinder employees, Sarah Mick (“Mick”) and Christopher Gulczynski (“Gulczynski”) to launch a competitor company called “Bumble.” The event was major business news, and covered in thousands of news articles.

18. On or about August 18, 2015,Terrill received a voicemail message from Bumble’s Vice President of Communications, Jennifer Stith (“Stith”), who stated that she wished to “confirm” with Terrill that she was working on a piece about Whitney Wolfe “before taking any next steps.”

19. Hours later, Terrill received a voicemail message from the attorney representing Wolfe in her lawsuit. Wolfe’s attorney demanded that Terrill make contact with him before she wrote anything “that could potentially subject [Terrill] or others to legal liability.” The obvious implication of the statement was that if Terrill proceeded to research and/or write about the underlying facts regarding Wolfe, including the potential inconsistencies between Wolfe’s past statements and other events from the past, and Wolfe’s allegations in her lawsuit against her fellow co-founders at Tinder, then Terrill could expect a lawsuit to follow.

20. Almost immediately following these two phone calls, Terrill’s personal computer and smart phone started acting erratically and showing signs of potentially having been hacked. Terrill also observed unusual activity in her personal surroundings.

The legal complaint’s account of the facts follows Biddle’s in broad outline, though in most respects gives a more understated account of the details. It’s a safe bet that Biddle’s story is closer to the truth—the legal filing is understated in pretty much all the ways you’d expect a lawyer with an unhinged client to try to spin the dispute.

For example, what does it mean to say that “Terrill found that there were potentially inconsistences [sic]”? Two sentences before, the complaint says “seemed inconsistent,” which implies Terrill believed (at least tentatively) that the statements were actually inconsistent. “Potentially” makes it sound like Terrill was merely claiming, “well, it’s possible there are inconsistencies”—a dumb ploy to make her sound super duper fair-minded about the whole thing.

Furthermore, I have a pretty good guess at how Terrill became convinced Wolfe and Bumble were up to something sinister in order to silence her. I work in the tech industry. In the tech industry you hear a fair number of stories of non-technical people getting confused about why their computer is acting the way it is and jumping to the the conclusion it was “hacked”. Terrill probably fell victim to that mistake, then started seeing evidence of her own persecution everywhere.

I feel bad for Terrill, because her apparent paranoid freakout over her computer behaving in ways she didn't understand could happen to almost anyone. Anyone with a poor understanding of how technology works, at any rate. But the understandability of her freakout doesn’t justify filing such an absurd lawsuit.

Then there's the lawsuits Harder has filed on behalf of Shiva Ayyadurai, not only against Gawker but also against the website Techdirt. Ayyadurai falsely claims to have invented email years after its actual date of invention.

I will not, as some have, call Ayyadurai a liar. He might, as others have suggested, simply be a loon. Charles Harder, though, he's a liar.

The filing for Ayyadurai's lawsuit against Gawker states, and I quote, "Dr. Ayyadurai invented email while working as a Research Fellow at the University of Medicine and Dentistry of New Jersey". This filing was signed by Charles Harder. And there is simply no way Harder believes it.

I can understand how someone who knew nothing about the history of email might unthinkingly repeat Ayyadurai's claims. The Washington Post, for example, once ran a story that incorrectly referred to Ayyadurai as the inventor of email, a statement which the Post later retracted. But Harder does not know nothing about the history of email. He's presumably read the article his client is suing over, and that article explains:

Press Ayyadurai, and he gets desperate, as his entire faux-fame rests upon semantic tricks, falsehoods, and a misinformation campaign.

Shiva Ayyadurai didn't invent email—he created "EMAIL," an electronic mail system implemented at the University of Medicine and Dentistry in Newark, New Jersey. It's doubtful he realized it as a little teen, but laying claim to the name of a product that's the generic term for a universal technology gives you acres of weasel room. But creating a type of airplane named AIRPLANE doesn't make you Wilbur Wright.

The actual pioneers of email were breaking new ground more than a decade before Ayyadurai concocted his dental memo system. Electronic mail predates Ayyadurai's ability to spell, let alone code. Ray Tomlinson is best known for having sent the first text letter between two computers on ARPANET in '71—y'know, an email. He also picked out the @ sign. A modest career. And despite Ayyadurai's insistence that, at the very least, he was the first to make use of the To/From/CC/BCC/etc fields we still use in Gmail today, this too is a personal fantasy. Tomlinson, who began working on early inter-computer messaging when Ayyadurai was a year old, explained to us how he became well-versed with these linchpins of modern email years before Ayyadurai drew them up on his own:

[We] had most of the headers needed to deliver the message (to:, cc:, etc.) as well as identifying the sender (from:) and when the message was sent (date:) and what the message was about. I chose the Latin word "re" meaning "about" for this. This apparently too obscure and was replaced with "subject:". However, "re:" is still use in the subject field to refer to the subject of the message to which the message is a reply. RFC 561 documents the headers as of 1973. Before that the standard was de facto. You could include any header you wanted in a message, but you had better use to:, cc:, etc. if you wanted the receiving program to understand.

These email underpinnings were further cemented in 1977's RFC 733, a foundational document of what became the internet itself—a full year before Ayyadurai's EMAIL project.

It was rough around the edges, but it was email. The work of Tomlinson and his peers was limited, but so too was the internet—and both exploded together. But ask Ayyadurai, and he dismisses it all—these messages weren't email, but "messages" and nothing more, relegated to some inferior class of communications that he compares to everyday "text messaging and morse code." It was all just sloppy streams of letters until he made EMAIL—and only then did the system behind Gmail, BlackBerry, and every computer on the planet see light.

But Ayyadurai's claim that he revolutionized how those messages are sent isn't uncontested either. Dave Crocker, another eminent figure in the history of actual email, calls Ayyadurai's posturing "theatrical," rattling off a fat list of email clients—MSG, SNDMSG, HERMES, MS—that did pretty much what EMAIL did, years and years before Ayyadurai started coding. "For a 14 year old his work was impressive," Crocker told us over the phone. "What he's saying about it now as a much older adult is also impressive—but in a very different way."

Biddle's article allowed that Ayyadurai might have coined the term "email", though that also appears to be wrong. By the way, I've looked at Ayyadurai's (apparently quite numerous) websites promoting his claim to have invented email, and "semantic tricks" seems like a pretty good summary—one of the most prominently featured pages is dedicated to arguing about the definition of "email" at great length.

A lot of people will be surprised to know this, but lying to a court is a big no-no for lawyers. Yes, lawyers are expected to play up facts that make their clients look good, while downplaying facts that make their clients look bad. Telling baldfaced lies is another matter. That's the kind of thing that can get a lawyer disciplined by the state bar association, or even thrown in jail in a state like New York (thanks to the state's Judiciary Law 487).

On top of all this, Harder's court filing appears to be premised on a fundamental misunderstanding of American intellectual property law, which calls into question his competence as a lawyer.

Harder was also involved in a third lawsuit against Gawker, though later backed out of it. The case involves Meanith Huon, a lawyer who was prosecuted for rape and later acquitted. When writing about the trial, a lawblog called Above the Law called Huon a serial rapist. Then Jezebel, part of the "Gawker network," published a blog post about the civil suit titled "Acquitted Rapist Sues Blog For Calling Him Serial Rapist". The blog post was fairly short, so I'm going to reproduce it in full here:

A Chicago man who was acquitted on a sexual assault charge is suing the legal blog Above The Law for implying that he's a serial rapist. If Meanith Huon gets his way, blogger sloppiness may cost ATL $50 million.

Huon, a lawyer, was initially charged with two counts of sexual assault, two counts of sexual abuse, and one count of unlawful restraint. A woman had jumped out of his car, ran through a cornfield barefoot, and knocked on a random person's door saying he had forced her into sexual activity. She later said she believed she was spending time with him for a job opportunity related to alcohol promotions, until he allegedly yelled at her to perform oral sex. Huon's version was that it was a consensual encounter, and partly on the strength of a bartender's testimony that the woman had been drinking and asked where to go to have fun, the jury believed him.

Huon is also suing local law enforcement authorities in Madison County, Illinois for prosecutorial misconduct. His beef with Above The Law stems from a roundup post entitled "Rape Potpurri," in which blogger Elie Mystal mistakenly believes that news accounts of the same incident are different incidents that should have tipped the woman off that Huon was a serial offender. "The content of the article were [sic] defamatory in that it incorrectly and recklessly portrayed Mr. Huon as a serial rapist by treating the same complaining witness as three different women," says the complaint, according to Forbes.

"And this, people, is why God invented Google," wrote Mystal in the original post, linking to articles that in fact described the same case. The lesson learned: Google only takes you so far.

The suit was dismissed under the fair report privilege, a specific piece of First Amendment doctrine that protects reporting based on the contents of official documents, such as court records. However, an appeals court ruled that Huon could continue his case based in large part on his theory that certain anonymous comments on the post had secretly been written by Gawker staff.

What makes Huon's case interesting is that, according to LawNewz, Huon's case ended up being "the first time that there has been incontrovertible evidence in the public record that Harder was fishing for Gawker-related cases before Hogan fell out of the sky, so to speak." Specifically, Huon released copies of a number of emails between himself and Harder, and stated that he was "reimbursed for certain of my costs". It seems like a safe bet that the person who did the reimbursing was none other than Peter Thiel, though officially Huon is keeping mum about that.

Harder was also, according to a report by Forbes, in contact with internet troll Chuck Johnson in regards to Johnson's own lawsuit against Gawker. Johnson denies this, and Harder never actually represented Johnson. However, a post on Johnson's Facebook page, made well in advance of Bollea's victory over Gawker, hinted not-so-subtly that Johnson had inside knowledge of the case—provided perhaps by Thiel?

In addition to these lawsuits, Harder has been involved making in a number other of legal threats against Gawker (and Univision, which acquired a number of Gawker properties in a bankruptcy auction). One bears striking similarities to Huon's lawsuit: Deadspin (another former "Gawker network" site) did a fairly straightfoward bit of reporting on a sexual harassment lawsuit, and Harder sent a letter on behalf of the defendant in the suit, Heli Soto, demanding the story be taken down.

Then there's the threat letter Harder sent to Jezebel on behalf of Arya Toufanian, founder of a Girls Gone Wild knockoff who made the mistake of tweeting about raping a journalist he didn't like. Harder threatened to sue Jezebel on the theory that this and other tweets were "taken out of context" by a Jezebel blog post about Toufanian, and therefore the blog post constituted libel.

In some cases, Harder's legal threats have targeted in-depth investigative journalism. For example, one of his threats targeted an investigation published by Jezebel into a creepy cult called "Superstar Machine". According to former cult members interviewed by Jezebel, the cult's founder, Greg Scherick, taught his (exclusively female) followers that in order to be successful they needed to submit to men and have anal sex.

Similarly, Harder threatened Deadspin over an investigation into Pregame.com, a website run by one RJ Bell which sells sports betting picks. According to Deadspin's report, written by Ryan Goldberg (who's also written for the New York Times and ProPublica), Pregame.com was receiving payments from sportsbooks based on how much bettors referred by Pregame lost to said sportsbooks. Bell denied this. What makes Harder's threat letter to Goldberg stand out, however, because it also alleged libel over Goldberg's use of correct statistical methodology.1

A lawyer working for Harder even threatened to sue Univision because Univision employee John Cook accused Harder of wanting to harm people rather than protect the interests of his clients. (An alternative hypothesis is that while Harder doesn’t give a damn about the interests of his purported clients, what he’s doing isn’t about harming people but about advancing the agenda of the people actually paying him—namely Peter Thiel and, I suspect, Donald Trump.)

Looking over these lawsuits and legal threats, a couple of things stand out. One, it's remarkable how Harder's clientele appears to consist mainly of questionable characters with frivolous legal claims. It's as if Harder won Bollea v. Gawker entirely by accident. I guess when Peter Thiel is bankrolling you, "spray and pray" becomes a valid legal strategy. (Perhaps better military metaphor would be "suppressive fire".)

Harder also reminds me of the saying that journalism is publishing what someone else does not want published, and everything else is public relations. Harder appears to subscribe to the legal theory that journalism, so defined, is already illegal under American law. No doubt this theory will surprise First Amendment scholars, but I am not sure how else to interpret some of Harder arguments. The linchpin of his threats is often nothing more than "my client denies it". Sometimes it's not even clear if the client denies an allegation or would just like it to be spun differently.

Harder's dishonesty and incompetence don't stop him from being dangerous. Defending against even a totally frivolous lawsuit can be expensive, especially if you don't live in a state with a strong anti-SLAPP law. To quote something The Donald himself said after losing a libel suit against a journalist who questioned his wealth, “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”

So if Harder threatens you, I recommend reading this post on dealing with legal threats before proceeding. However, I also recommend not assuming that because Harder prevailed in Bollea v. Gawker that his threats have any merit—assuming you haven’t posted any celebrity sex tapes.

With that out of the way, I've saved two examples of Charles Harder's legal threats for the very end. The first is a threat purportedly made on behalf of Ivari International, a hair-extension company that just happens to be located in Trump Tower on the same floor as Donald Trump's own office. What a coincidence!

But we don't have to speculate about this particular threat, because there's an even clear example of Donald Trump using other people has his pawns to make legal threats with Charles Harder's cooperation. Specifically, we have "Melania" Trump's threat to sue People magazine over a story about Trump assaulting one of People's writers. I can't imagine a clearer example of Trump using his wife as a pawn to attack his enemies.

Nothing has come of the People threat, perhaps because six witnesses have corroborated the People writer's story. Nevertheless, it's a smoking gun that the suspicions I voiced in my previous article are correct. And—let's call it what it is—Donald Trump's suit against the Daily Mail is about not just Melania being called a former escort, but also, as the court filings make clear [link], about allegations that she started working in the US in 1995, a year earlier than previously claimed.

If Harder were to prevail on this claim, it would set up a precedent to allow The Donald to sue CNN, which also covered those allegations. Given that Trump clearly hates CNN for failing to give him the fawning coverage he feels entitled to, he would no doubt like to be able to sue the network for (allegedly) getting his wife’s immigration history wrong.

Things like this are difficult to work out from media coverage, which is why I think it’s important for people to be able to read the relevant parts of the article at the center of the lawsuit. And fortunately, Harder’s incompetence may yet derail this very dangerous lawsuit. But it might not. So pay attention to this case. It could end up being very, very important.

Charles Harder did not respond to multiple requests for comment.

1. Goldberg's report included the following chart showing the performance of Pregame.com's sports betting "pros":

Harder's threat letter argues that the chart is "deceptive" because it includes inactive "pros" or "handicappers", and that "a majority of Pregame's active handicappers are shown to be profitable"

Goldberg was correct to ignore this, however. Imagine that all of a pick-selling site's handicappers always choose which side of a bet to pick at random. Most will be long-run losers (due to the "vig", or cut the bookie takes), but some will win, at least initially. The site can then fire the unsuccessful handicappers, and then advertise having only winners.

This brings me to one nit I have to pick with Goldberg's article: Goldberg ridicules Bell for comparing what he does to what mutual-fund companies do. However, while Goldberg is correct that Pregame.com has little in common with honest mutual fund companies like Vanguard, the way Bell manipulates data to sell his product is more or less identical to how dishonest mutual fund companies operate.

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