Reply To: Trump – Fascist Demagogue?

From the Washington Post:

Late last week, Donald Trump attorney Alan Garten sent a cease and desist letter to a wealthy Florida businessman named Mike Fernandez. Fernandez had paid for an ad in the Miami Herald that described Trump as a ” narcistic BULLYionaire.” Garten threatened legal action against Fernandez — a letter he also sent to James Robinson, the treasurer of Jeb Bush’s Right to Rise leadership PAC. On Wednesday, Charlie Spies, the D.C. based counsel to Right to Rise, sent an absolutely amazing response letter to Garten. It, in all its glory, is below.

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. Please be aware that RTR is a federal “Leadership PAC” that has never produced, and has no plans to produce, advertisements against your client, or any political candidate for that matter. As a Leadership PAC, RTR was organized to raise money to support conservative candidates through direct contributions. In fact, RTR has made almost $300,000 in contributions since its creation in January 2015. Unlike your client, we only support conservative candidates.

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 (www.fec.gov) 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 in Speechnow.org 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? 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 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.

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.

Cordially,

Charles Spies