The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Bad to Worse for Brett Kimberlin

Posted on | February 22, 2014 | 14 Comments

Brett Kimberlin got bad news with this past week’s decision by Public Citizen attorney Paul Alan Levy (and also the Maryland chapter of the ACLU) to defend Ace of Spades in the federal lawsuit that John Hoge calls Kimberlin v. the Universe, et al.

Kimberlin got worse news, perhaps, on Friday when attorney Mark Bailen filed his motion to dismiss on behalf of the defendants Erick Erickson, Red State, James O’Keefe and Simon & Shuster. Bailen does an excellent job of documenting key aspects of the case, notably (a) Kimberlin’s status as a public figure with a notorious reputation, and (b) the lack of specificity in Kimberlin’s allegations.

The vague nature of Kimberlin’s allegations with regard to his claims of defamation is an aspect of the case that you probably have to be a First Amendment fetishist to understand. Winning a libel suit in this country is very difficult, because the First Amendment has been interpreted by courts to grant very wide latitude when it comes to reporting and commenting about public figures. This is the bottom-line explanation for why Brett Kimberlin’s lawsuits, both the federal RICO suit and the Maryland lawsuit Kimberlin v. Walker, et al., were filed pro se — any competent attorney would have advised him he doesn’t have a case.

Having once consulted an attorney myself in 2007 regarding one particular lying son of a bitch, I remember my buddy Bert the Samoan Lawyer explaining to me that I was a public figure under the Sullivan precedent, and this would make it practically impossible for me to win a libel judgment. This is just the way the law is — lying sons of bitches are usually in the clear, if the target of their lies is a public figure per the Sullivan precedent. (Sarah Palin could tell you all about it.)

If the law protects lying sons of bitches, certainly it must protect people who tell the truth about lying sons of bitches.

“The Wizard of Odd,” as Time magazine called Brett Kimberlin, is not only a liar, but also a public figure, and so therefore any competent attorney looking at this situation would have declined to take his case. In fact, Paul Alan Levy indicates Kimberlin tried to get him to help with the RICO suit and Levy told Kimberlin “that his campaign to suppress criticism though litigation had rather gone overboard” — which was our basic point to begin with, to say nothing of the other forms of harassment Kimberlin’s critics have endured.

We cannot forget the threat Kimberlin sent to Patterico in October 2010: “I have filed over a hundred lawsuits and another one will be no sweat for me. On the other hand, it will cost you a lot of time and money.” That could be construed to indicate vexatious intent, i.e., that Kimberlin sues people as a means of harassment and intimidation and, in Mark Bailen’s Friday filing in the RICO case, he included a crucial footnote.

“Kimberlin’s claims … are sufficiently meritless to suggest bad-faith or vexatious conduct, justifying an award of attorneys’ fees as a sanction,” Bailen argues in a footnote on page 31, citing the 2004 award of attorneys’ fees to the defendants in the Byrd v. Hopson case, in accordance with “dismissal of plaintiff’s ‘baseless’ claims, which alleged a ‘wide-ranging conspiracy against her’ that was guilty of civil rights violations, RICO violations, and state law claims, some of which were barred by the statute of limitations.”

Not being familiar with Byrd v. Hopson, I am not in a position to judge the resemblance between the issues in that case and the “meritless” Kimberlin RICO claim, but considering how many defendants there are in this case — some of whom have yet to file their motions to dismiss — what would the total cost of the defendants’ attorneys’ fees be? Many tens of thousands of dollars, for sure, and if the judge were to award  attorneys’ fees to the defendants . . . Well, it would be a lesson that the students of Acme Law School would not be likely to forget any time soon.

 

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Category: The Kimberlin Files

Comments

14 Responses to “Bad to Worse for Brett Kimberlin”

  1. WJJ Hoge
    February 22nd, 2014 @ 5:48 am

    All is proceeding as I have foreseen.

  2. Anon Y. Mous
    February 22nd, 2014 @ 5:59 am

    Brett Kimberlin got bad news with this past week’s decision by Public Citizen attorney Paul Alan Levy (and also the Maryland chapter of the ACLU) to defend Ace of Spades in the federal lawsuit that John Hoge calls Kimberlin v. the Universe, et al.

    I followed your link over to Public Citizen, where Levy says:

    Somewhat more than 25 years ago, I represented a federal prisoner named Brett Kimberlin who made a sensational accusation against a sitting Senator who was running for Vice-President […]

    I find these two statements, when taken together, a little confusing. I would think that since Levy actually represented Kimberlin in the past, he would be precluded from representing another party against him now. It would be a conflict of interest. Unless, when you say that Levy and the Maryland ACLU are defending Ace, you mean not that they are representing him, but rather they are perhaps filing an amicus brief that is supportive to Ace’s arguments?

  3. rmnixondeceased
    February 22nd, 2014 @ 7:12 am

    He is not precluded as the cases have no relationship to one another. The Federal Bureau of Prisons is not a defendent in the instant case. There was no RICO allegations in the former case nor were there allegations of defamation. Simply because Mr. Levy represented Kimberlin in the past does not preclude him from representing others against his former client in an unrelated case.

  4. rustypaladin
    February 22nd, 2014 @ 8:43 am

    Heck, I got a chuckle when Levy refered to his former client, Kimberlin, as a “Thug” in that article. Justice may be blind but that does not mean it is deaf or that it can’t smell if something stinks.

  5. rmnixondeceased
    February 22nd, 2014 @ 9:04 am

    Levy was just stating the truth … rare for an attorney I know, but it does occur occasionally …

  6. WarEagle82
    February 22nd, 2014 @ 9:42 am

    What can they do to get his attention and adjust his behavior?

    I am not sure what type of sanctions might be imposed on TDPK but court costs alone would hardly be a deterrent since everyone has noted he is fairly judgement-proof, lives in the basement of his mother’s home, and appears to have few or no assets and seems to have hidden any income.

    If he has committed a crime during all his legal nonsense, could the courts revoke his parole and send him back to prison for the rest of his term?

    Just wandering…

  7. slp
    February 22nd, 2014 @ 9:49 am

    If the defendants are awarded attorneys fees and costs against Kimberlin, it will just become another unpaid judgment against Kimberlin.

  8. Katie Scarlet
    February 22nd, 2014 @ 10:15 am

    I’m sure Kimberlin will file a defamation lawsuit against Levy for that comment. I mean, it’ll be “no sweat” for him right?

  9. DaveO
    February 22nd, 2014 @ 11:50 am

    Is BK still on parole? If so, wouldn’t his former child-bride be evidence enough to send him back?

  10. Katie Scarlet
    February 22nd, 2014 @ 12:12 pm

    He is on “unsupervised” parole. Why that is I have no idea. If anyone needs supervision it is Brett Kimberlin.

  11. McGehee
    February 22nd, 2014 @ 12:51 pm

    I would think that since Levy actually represented Kimberlin in the past, he would be precluded from representing another party against him now. It would be a conflict of interest.

    25-plus years in the past. Having represented a client once does not give that former client a lifetime claim on an attorney’s loyalty. Lawyers are hired guns, not personal servants.

  12. So what is happening with Brett #Kimberlin vs. the Universe? | Batshit Crazy News
    February 23rd, 2014 @ 11:06 am

    […] The Other McCain and Hoge are on it.  One of the latest developments:  Ace of Spades HQ being defended by the ACLU. […]

  13. Evi L. Bloggerlady
    February 23rd, 2014 @ 3:27 pm

    http://batshitcrazynews.com/wp-content/uploads/2014/02/Screen-Shot-2014-02-23-at-8.08.09-AM.png

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    March 2nd, 2014 @ 1:59 pm

    […] Bad to Worse for Brett Kimberlin […]