Saturday, December 12, 2015

Two Candidates, Two Attorneys, One Epic Come-Back

(Getty Images)
what eye thynk:  I wish neither of these candidates well, but this little inter-candidate spat sure is entertaining. (Any underlines are mine.)

Mike Fernandez, a wealthy Florida Jeb Bush supporter, personally paid for an ad that ran in the Miami Herald calling Donald Trump a "Bullyionaire."  Poor widdle Donny got hims widdle feewings hurted, so he had his lawyer, Alan Garten, send a cease and desist order threatening "immediate legal action" against Mr. Fernandez and also against Mr. Bush's Super PAC if they didn't stop picking on poor Mr. Combover.

Charlie Spies, counsel for Mr. Bush's Right to Rise PAC replied:
Dear Mr. Garten:
On behalf of our client, Right to Rise PAC, Inc. ("RTR"), we write to respond to your December 4th, 2015 letter, in which you state your intentions to "seek immediate legal action" against RTR should it produce and disseminate certain political communications that "directly and personally" attack your client, Donald Trump.
After a few lines of legalese explaining the different types of PACs, and stating that RTR had nothing to do with the ad that so upset Mr. Trump, Mr. Spies gets down to schooling La Donald's corporate attorney on how democratic elections work.  It is a work of art.
It is possible you are confusing RTR with any number of federal independent expenditure-only committees (i.e. "Super PACs") that have exercised their First Amendment rights to educate the public about your client's public statements and stances on important public policy issues.  We suggest you consult the Federal Election Commission's ("FEC") website ( to familiarize yourself about the differences between Leadership PACs and Super PACs, or perhaps skim through the Supreme Court's decision in Citizens United v. FEC or the D.C. Circuit's decision on v. FEC.  They are both very helpful and might clear up some of your confusion.
In addition, although RTR has no plans to produce any advertisements against your client, we are intrigued (but not surprised) by your continued efforts to silence critics of your client's campaign by employing litigious threats and bullying.  Should your client actually be elected Commander-in-Chief, will you be the one writing the cease and desist letters to Vladimir Putin, or will that be handled by outside counsel?  
Sarcasm, my favorite flavor!
As a candidate for President, your client is a public figure and his campaign should, and will, be fact-checked.  The ability to criticize a candidate's record, policies and matters of public importance lies at the heart of the First Amendment, as courts have repeatedly recognized.  If you have the time between bankruptcy filings and editing reality show contracts, we urge you to flip through the Supreme Court's decision in New York Times v. Sullivan.  If your client is so thin-skinned that he cannot handle his critics' presentation of his own public statements, policies and record to the voting public, and if such communications hurts (sic) his feelings, he is welcome to purchase airtime to defend his record.  After all, a wall can be built around many things, but not around the First Amendment.
And then, the payback:
Lastly, in light of your confusion over the difference between Leadership PACs and Super PACs, we have to assume you may also be unaware of the FEC's prohibition on a federal candidate's use of corporate resources for campaign purposes.  Although your client may think he is above the law and be accustomed to using lawsuits to bail out his failed business deals, the Federal Election Campaign Act and the FEC's Regulations nonetheless apply to him and his campaign.  Perhaps the attached complaint, filed today, will serve as a reminder of your client's legal obligations under federal election laws.  Just as your client is attempting to quickly learn the basics of foreign policy, we wish you personally the best in your attempts to learn election law.
Charles Spies
I'm no legal expert, but I believe this match goes to Jeb, (may he spend the rest of his life somewhere on an isolated ranch in the middle of Texas ruminating on his failure to light up the Republican electorate).

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