Ugliness all around as news leaks that Florida prosecutor won’t take Corey Lewandowski to trial on battery charges

Yesterday evening, Politico provoked the “breaking news” chime on Fox News (and presumably elsewhere) with its report that Palm Beach County state attorney David Aronberg has decided not to bring Trump campaign manager Corey Lewandowski to trial on charges of simple battery brought by local police.  As is well known by now, videotape captured Lewandowski grabbing reporter Michelle Fields as she attempted to penetrate the Secret Service cordon around Trump following a speech in Jupiter, Florida in order to ask him a question.

Aronberg has scheduled a news conference today to officially reveal his decision in the matter, but other media are accepting Politico’s report based on leaks from the prosecutor’s office.

But far from ending the unpleasantness and letting the matter go away, this move has only led to further ugliness.  Fields tweeted:

Fair enough.  Leaking is not the way to go for a presumed servant of justice like a state attorney.  Aronberg’s office no doubt realized that it was very unlikely to win the case if it brought charges, and he would have faced a lot of flak for wasting resources on a marginal prosecution.  The Palm Beach County state attorney filed 20,000 misdemeanor cases in 2011 alone, with each misdemeanor prosecutor handling between 400 and 500 at any given time.  Lavishing resources on a case certain to be defended by top lawyers, where there is reason to believe that a jury would not return a guilty verdict, could lead to a lot of criticism.

Law professor and prolific commentator John Banzhaf of George Washington University explained the difficulty in getting a legal verdict.

If X taps a stranger on the shoulder to ask directions, or Y slightly but deliberately touches W as they brush by each other in a crowded hallway, there is no battery because these are accepted touches to which we have all impliedly consented simply by being a part of common society.

Moreover, the law also says that we all consent to additional types of touchings if we go to places, or engage in activities, where touching beyond those is customary.  People pushing to get onto a crowded subway train, or mild roughhousing at a drunken fraternity party, are two common examples.

So, since political rallies are often quite rowdy, with reporters as well as fans all trying to elbow their way to get next to the candidate to ask questions, take pictures, etc., persons who join in the customary jostling around the candidate are usually held to agree to those types and levels of touchings which are customary and to be expected in such situations.

Since the scene around Trump at the time does seem somewhat chaotic, with at least a moderate amount of jostling and other types of touchings, a strong defense would be that the complainant, by voluntarily joining in the melee, had consented to some level of touching which could include briefly grasping an arm.

The law also permits a defendant to use reasonable force if he reasonably believes that someone else is about to commit a battery on another. 

So if Lewandowski reasonably believed that the reporter was about to touch his boss - e.g., to take hold of Trump's arm or even his sleeve while asking a question - he has a legal privilege to use force which is reasonable under the circumstances to prevent that from happening.

Here it should be noted that he has such a privilege even if he was mistaken; i.e., if the reporter was not in fact seeking to touch Trump.  So long as the mistake was not unreasonable, Lewandowski may still legally use force, and engage in a touching, which would otherwise be illegal.

Naturally, the force which he uses must be reasonable.  If he reasonably believed that his boss was about to be grasped by a reporter, he could not lawfully punch her in the face.  However,  simply briefly grasping her arm under the circumstances is probably reasonable, and thus legally privileged.

Also factoring into the situation is that the prosecutor must be able to prove every element of his case beyond a reasonable doubt, and must show that the defendant acted with criminal intent (scienter).

So, from a strictly legal point of view, Lewandowski would have had several strong legal defenses.

Fields, who left her job at Breitbart over their handling of the incident, has let it be known she plans to keep the matter in court via a defamation lawsuit against Lewandowski.  Oliver Darcy of TheBlaze reports:

Ex-Breitbart reporter Michelle Fields said Wednesday night that she plans to pursue civil action against Donald Trump and campaign manager Corey Lewandowski over an incident that occurred last month.

Fields told TheBlaze that she is looking into bringing legal action against both Trump and Lewandowski for defamation of her character.

As a reporter and frequent cable news talking head, Fields is a “public figure” and faces a high burden in proving defamation.  But a lawsuit will keep her and her antagonist in the news.  Fields also reacted very negatively to comments made by Greta Van Susteren on the latter's Fox News TV show yesterday (which was interrupted by the breaking news gong to announce the Politico story).  Nick Gass reports in Politico:

Former Breitbart reporter Michelle Fields accused Greta Van Susteren of being a "shill" for Donald Trump's campaign late Wednesday evening, after the Fox News anchor urged Fields not to bring a civil defamation lawsuit against either Trump or campaign manager Corey Lewandowski, who last month was charged with misdemeanor battery for a run-in following a campaign event in Florida last month.

Here is what Fields tweeted:

One of the things Greta V. said on air was that she and other female reporters had struggled for years to be accepted in and participate in media scrums, where jostling and even arm-grabbing among reporters, security people, and sources are common.  She was implicitly worrying that Fields, by bringing the complaint, was in effect relying on the image of women as more fragile than men – and by that, perhaps lessening the acceptance of females among the “boys,” who sometimes get a little physical in a crush of media around a news source at a crowded event.

If Fields proceeds with her defamation suit, she will of course face discovery and cross-examination, in which her entire life is potentially put on trial.

As for Lewandowski, popping champagne corks may be a bit premature.  It looks a lot as if he is being pushed aside by more experienced aides just hired by Trump: Paul Manafort and Rick Wiley, who recently headed up Scott Walker’s presidential bid.  Lewandowski has been with Trump from the early days and is unlikely to be dumped.  But as it became clear that the campaign needed a ground game, Lewandowski was not up to the challenge.  Manafort and Wiley are at a minimum going to be supplementing his role.

This entire incident is one where everyone walks away a loser.

Yesterday evening, Politico provoked the “breaking news” chime on Fox News (and presumably elsewhere) with its report that Palm Beach County state attorney David Aronberg has decided not to bring Trump campaign manager Corey Lewandowski to trial on charges of simple battery brought by local police.  As is well known by now, videotape captured Lewandowski grabbing reporter Michelle Fields as she attempted to penetrate the Secret Service cordon around Trump following a speech in Jupiter, Florida in order to ask him a question.

Aronberg has scheduled a news conference today to officially reveal his decision in the matter, but other media are accepting Politico’s report based on leaks from the prosecutor’s office.

But far from ending the unpleasantness and letting the matter go away, this move has only led to further ugliness.  Fields tweeted:

Fair enough.  Leaking is not the way to go for a presumed servant of justice like a state attorney.  Aronberg’s office no doubt realized that it was very unlikely to win the case if it brought charges, and he would have faced a lot of flak for wasting resources on a marginal prosecution.  The Palm Beach County state attorney filed 20,000 misdemeanor cases in 2011 alone, with each misdemeanor prosecutor handling between 400 and 500 at any given time.  Lavishing resources on a case certain to be defended by top lawyers, where there is reason to believe that a jury would not return a guilty verdict, could lead to a lot of criticism.

Law professor and prolific commentator John Banzhaf of George Washington University explained the difficulty in getting a legal verdict.

If X taps a stranger on the shoulder to ask directions, or Y slightly but deliberately touches W as they brush by each other in a crowded hallway, there is no battery because these are accepted touches to which we have all impliedly consented simply by being a part of common society.

Moreover, the law also says that we all consent to additional types of touchings if we go to places, or engage in activities, where touching beyond those is customary.  People pushing to get onto a crowded subway train, or mild roughhousing at a drunken fraternity party, are two common examples.

So, since political rallies are often quite rowdy, with reporters as well as fans all trying to elbow their way to get next to the candidate to ask questions, take pictures, etc., persons who join in the customary jostling around the candidate are usually held to agree to those types and levels of touchings which are customary and to be expected in such situations.

Since the scene around Trump at the time does seem somewhat chaotic, with at least a moderate amount of jostling and other types of touchings, a strong defense would be that the complainant, by voluntarily joining in the melee, had consented to some level of touching which could include briefly grasping an arm.

The law also permits a defendant to use reasonable force if he reasonably believes that someone else is about to commit a battery on another. 

So if Lewandowski reasonably believed that the reporter was about to touch his boss - e.g., to take hold of Trump's arm or even his sleeve while asking a question - he has a legal privilege to use force which is reasonable under the circumstances to prevent that from happening.

Here it should be noted that he has such a privilege even if he was mistaken; i.e., if the reporter was not in fact seeking to touch Trump.  So long as the mistake was not unreasonable, Lewandowski may still legally use force, and engage in a touching, which would otherwise be illegal.

Naturally, the force which he uses must be reasonable.  If he reasonably believed that his boss was about to be grasped by a reporter, he could not lawfully punch her in the face.  However,  simply briefly grasping her arm under the circumstances is probably reasonable, and thus legally privileged.

Also factoring into the situation is that the prosecutor must be able to prove every element of his case beyond a reasonable doubt, and must show that the defendant acted with criminal intent (scienter).

So, from a strictly legal point of view, Lewandowski would have had several strong legal defenses.

Fields, who left her job at Breitbart over their handling of the incident, has let it be known she plans to keep the matter in court via a defamation lawsuit against Lewandowski.  Oliver Darcy of TheBlaze reports:

Ex-Breitbart reporter Michelle Fields said Wednesday night that she plans to pursue civil action against Donald Trump and campaign manager Corey Lewandowski over an incident that occurred last month.

Fields told TheBlaze that she is looking into bringing legal action against both Trump and Lewandowski for defamation of her character.

As a reporter and frequent cable news talking head, Fields is a “public figure” and faces a high burden in proving defamation.  But a lawsuit will keep her and her antagonist in the news.  Fields also reacted very negatively to comments made by Greta Van Susteren on the latter's Fox News TV show yesterday (which was interrupted by the breaking news gong to announce the Politico story).  Nick Gass reports in Politico:

Former Breitbart reporter Michelle Fields accused Greta Van Susteren of being a "shill" for Donald Trump's campaign late Wednesday evening, after the Fox News anchor urged Fields not to bring a civil defamation lawsuit against either Trump or campaign manager Corey Lewandowski, who last month was charged with misdemeanor battery for a run-in following a campaign event in Florida last month.

Here is what Fields tweeted:

One of the things Greta V. said on air was that she and other female reporters had struggled for years to be accepted in and participate in media scrums, where jostling and even arm-grabbing among reporters, security people, and sources are common.  She was implicitly worrying that Fields, by bringing the complaint, was in effect relying on the image of women as more fragile than men – and by that, perhaps lessening the acceptance of females among the “boys,” who sometimes get a little physical in a crush of media around a news source at a crowded event.

If Fields proceeds with her defamation suit, she will of course face discovery and cross-examination, in which her entire life is potentially put on trial.

As for Lewandowski, popping champagne corks may be a bit premature.  It looks a lot as if he is being pushed aside by more experienced aides just hired by Trump: Paul Manafort and Rick Wiley, who recently headed up Scott Walker’s presidential bid.  Lewandowski has been with Trump from the early days and is unlikely to be dumped.  But as it became clear that the campaign needed a ground game, Lewandowski was not up to the challenge.  Manafort and Wiley are at a minimum going to be supplementing his role.

This entire incident is one where everyone walks away a loser.