Commentary
Trump's Big Tech Lawsuit is So Badly Drafted, It's "Either Extreme Legal Malpractice or Overt Corruption," Barnes Warns
by Adam de Angeli
Posted July 12, 2021
Prominent attorney Robert Barnes warned viewers on his YouTube show with Viva Frei that the class action lawsuits filed by Donald Trump against Big Tech giants Facebook, Twitter, Google and subsidiary YouTube are horribly flawed – and may have been intentionally designed to fail by corrupt swamp lawyers.
"He has the right idea; credit to him for pursuing it in the court of public opinion, pursuing it in the court of law, to elevate the attention to the issue; credit to him for wanting to do it on a class action basis. He has the right purpose, the right idea, very poor execution because of who the lawyers are. And I have some serious doubts about what their motivation really is," Barnes began.
But Barnes was quick to point out the enormous flaws in Trump's lawsuits.
"They've managed to bring the weakest possible claim, and forego the strongest possible claims. That's why I wondered, once I dug into who the lawyers were, whether this was a deliberate poison pill to kill the cases.
"For example, Trump's got the right idea to go after Big Tech. He was the President of the United States, and he's the most egregious example of censorship that's ever occurred, and its most problematic consequences. What he could have brought was a combination of claims," Barnes noted.
He went on to explain how Trump could have brought class-action claims on political censorship, on the grounds that major social networks are essentially the "public square" of today, and also individual claims against the networks on the harm done to him – acting essentially as state actors in doing so.
"The only way you're going to get the state actor [claim] – is to say specifcally... ‘Vice President Kamala Harris, Speaker of the House Nancy Pelosi, and CDC Director Fauci, instructed Jack Dorsey, Mark Zuckerberg, instructed each of them to remove the President of the United States's accounts from being available to communicate to the people.’ And that's it. [...]
"Does he have proof? No, but it would get him to discovery, which I guarantee would be revelatory. Instead, they went out of their way not to allege that," Barnes continued.
Instead, Barnes noted, Trump's lawsuits claim that Big Tech's censorship of Trump was motivated by the idea that a state actor will be happy with their actions and therefore give them some benefit – a notion that his own case citations make clear is not valid.
"Where the suit is going right now, it's likely to get transferred to California, it will likely be dismissed on anti-SLAPP grounds because that's enforceable in federal court, and Trump is going to end up paying Twitter, Facebook, Google, YouTube attorneys' fees. And it almost seems deliberate."
"SLAPP" is an acronym for "strategic lawsuit against public participation," referring to lawsuits that aim to constrain another's right to free speech. California law directs courts to award legal fees to defendants in such cases. Big Tech would claim censorship is part of their right to free speech, and deny being government agents – leading to dismissal and an award of legal fees against Trump.
"They've chosen to abandon the direct allegation that's necessary to get [to trial], and bring the theory they know is going to get dismissed. They're telling the judge, they're giving the clerk a road map to ‘by the way, here's how frivolous our case is.’" Barnes explained.
He continued to explain what would have been the correct class action claim: arguing the PruneYard decision should extend to social networks. The PruneYard case was a landmark First Amendment case in which the U.S. Supreme Court held valid a California law that defined mall interiors to be public spaces where the public is entitled to free speech.
"There's no chance of the class ever being certified," Barnes replied. "It's not a class action until the federal judge certifies it. That will never occur. It'll get dismissed before that ever happens. It's hurtful, not helpful, to Trump's causes and claims.
"And the part they brought that's a class action makes no sense. Because what they're really saying is, Trump was specifically targeted by state actors using Big Tech. That's not a class. That's only Trump. There aren't a million other Trumps.
"The class action part would have been unjust enrichment, some part of that, consumer fraud, some part of that, but the big one would have been treating this as a public square, a digital public square under the Marsh doctrine and PruneYard doctrine, arguing for a change in existing law to extend that to the modern space."
Barnes continued to note that the lawsuits seemed to intentionally ignore a recent dissent from Justice Clarence Thomas, in which the Supreme Court Justice laid out what would be an effective argument against Big Tech censorship.
"And by the way, I thought they would follow Thomas's guide, but they ignored every point that Thomas raised. They don't bring a single point up that Thomas talked about. Not the public utility argument – Thomas doesn't like this precise state actor argument. He likes other claims. They ignored all of them.
"And it's because 3 or 4 of the lawyers, they work in a Virginia real estate law firm, where what they do is help you get your title transferred. What are they doing being the main drafters of such a case? Then another lawyer is a local an insurance lawyer, and the only guy with a name who appeared is Greta Van Susteren's husband, who the last time he did something interesting, it was the 1980's. This is a disaster of a list of lawyers."
This is going to be another defeat for Trump and the movement supporting him and supporting freedom of speech online. And few lawyers with genuine sympathies to Trump are speaking out.
"He has the right idea; credit to him for pursuing it in the court of public opinion, pursuing it in the court of law, to elevate the attention to the issue; credit to him for wanting to do it on a class action basis. He has the right purpose, the right idea, very poor execution because of who the lawyers are. And I have some serious doubts about what their motivation really is," Barnes began.
But Barnes was quick to point out the enormous flaws in Trump's lawsuits.
"They've managed to bring the weakest possible claim, and forego the strongest possible claims. That's why I wondered, once I dug into who the lawyers were, whether this was a deliberate poison pill to kill the cases.
"For example, Trump's got the right idea to go after Big Tech. He was the President of the United States, and he's the most egregious example of censorship that's ever occurred, and its most problematic consequences. What he could have brought was a combination of claims," Barnes noted.
He went on to explain how Trump could have brought class-action claims on political censorship, on the grounds that major social networks are essentially the "public square" of today, and also individual claims against the networks on the harm done to him – acting essentially as state actors in doing so.
"The only way you're going to get the state actor [claim] – is to say specifcally... ‘Vice President Kamala Harris, Speaker of the House Nancy Pelosi, and CDC Director Fauci, instructed Jack Dorsey, Mark Zuckerberg, instructed each of them to remove the President of the United States's accounts from being available to communicate to the people.’ And that's it. [...]
"Does he have proof? No, but it would get him to discovery, which I guarantee would be revelatory. Instead, they went out of their way not to allege that," Barnes continued.
Instead, Barnes noted, Trump's lawsuits claim that Big Tech's censorship of Trump was motivated by the idea that a state actor will be happy with their actions and therefore give them some benefit – a notion that his own case citations make clear is not valid.
"Where the suit is going right now, it's likely to get transferred to California, it will likely be dismissed on anti-SLAPP grounds because that's enforceable in federal court, and Trump is going to end up paying Twitter, Facebook, Google, YouTube attorneys' fees. And it almost seems deliberate."
"SLAPP" is an acronym for "strategic lawsuit against public participation," referring to lawsuits that aim to constrain another's right to free speech. California law directs courts to award legal fees to defendants in such cases. Big Tech would claim censorship is part of their right to free speech, and deny being government agents – leading to dismissal and an award of legal fees against Trump.
"They've chosen to abandon the direct allegation that's necessary to get [to trial], and bring the theory they know is going to get dismissed. They're telling the judge, they're giving the clerk a road map to ‘by the way, here's how frivolous our case is.’" Barnes explained.
He continued to explain what would have been the correct class action claim: arguing the PruneYard decision should extend to social networks. The PruneYard case was a landmark First Amendment case in which the U.S. Supreme Court held valid a California law that defined mall interiors to be public spaces where the public is entitled to free speech.
The class action claim to have brought was to bring a claim challenging the PruneYard doctrine in federal law. This also would have discouraged them from trying to move it to California and reduce the attorney fee risk for Trump, because in California the PruneYard doctrine still applies...Barnes was quick to observe that the lawsuits are so bad, they're suspicious.
And then you bring other common law claims. I thought for sure Trump would bring a claim that says “all these people got rich off of me. The reality is, monetizing me off the last four years made them millions, likely billions of dollars.”
Trump had the ultimate unjust enrichment claim. No individual in the world had as strong an unjustment claim as Trump. And it would highlight the issue, it would play great politically--it'd be like ‘these guys made billions of dollars off of me and then they tried to silence me because they wanted to go a different political route.’
And he also could have alleged consumer fraud as well, under the Florida statute. And that makes it harder to remove to California.
"I was stunned because there's nobody that's in this field that is on this lawsuit. No First Amendment lawyers, no big constitutional lawyers, no Big Tech lawyers, and then I started asking around. None of them had even been consulted. [...]Barnes' cohost Viva Frei observed that the "class action" suit lacked many elements required of class action suits: the practicality of the class, the ability of the law firm to handle the class, the appropriateness of the representative of the class.
"He can still bring those claims, it's just-- As long as he as these lawyers are involved, it's obvious those claims won't be brought. This claim is made to look – when it happens that he ends up having to pay the other side's legal fees, loses – it's made to make state actor claims look bad, make Trump's claims look bad, and it's not a surprise when you dig in. It's one of these fake America First groups. It's called "America First Policy Initiative" or something like that. You dig in, it's all Big Oil money. They're all corporate lobbyists. A lot of them are Wall Street connected. They're a lot of Jared Kushner's pals."
"There's no chance of the class ever being certified," Barnes replied. "It's not a class action until the federal judge certifies it. That will never occur. It'll get dismissed before that ever happens. It's hurtful, not helpful, to Trump's causes and claims.
"And the part they brought that's a class action makes no sense. Because what they're really saying is, Trump was specifically targeted by state actors using Big Tech. That's not a class. That's only Trump. There aren't a million other Trumps.
"The class action part would have been unjust enrichment, some part of that, consumer fraud, some part of that, but the big one would have been treating this as a public square, a digital public square under the Marsh doctrine and PruneYard doctrine, arguing for a change in existing law to extend that to the modern space."
Barnes continued to note that the lawsuits seemed to intentionally ignore a recent dissent from Justice Clarence Thomas, in which the Supreme Court Justice laid out what would be an effective argument against Big Tech censorship.
"And by the way, I thought they would follow Thomas's guide, but they ignored every point that Thomas raised. They don't bring a single point up that Thomas talked about. Not the public utility argument – Thomas doesn't like this precise state actor argument. He likes other claims. They ignored all of them.
"And it's because 3 or 4 of the lawyers, they work in a Virginia real estate law firm, where what they do is help you get your title transferred. What are they doing being the main drafters of such a case? Then another lawyer is a local an insurance lawyer, and the only guy with a name who appeared is Greta Van Susteren's husband, who the last time he did something interesting, it was the 1980's. This is a disaster of a list of lawyers."
This is going to be another defeat for Trump and the movement supporting him and supporting freedom of speech online. And few lawyers with genuine sympathies to Trump are speaking out.
"Trump has the best claims of anybody, and I think his motivations are completely correct in this, he just has these corrupt corporate lawyers. This was always his problem. He has corrupt insiders and crazy outsiders.Watch the full interview here.
"But Trump is in the best possible position, and he brought the weakest possible claim. You dig in, these are Rick Perry's people; these are big government, big corporate lobbyists. These are people who are good on issues like school choice, regulation, taxation, things like that. They have no business in this space.
"And once I saw they cited the very cases in the lawsuit that make it clear to the clerk and the judge that these cases are basically frivolous, that made we wonder what was the real motivation of some of these people involved.
"This is either extreme legal malpractice or overt corruption, that's my view," Barnes concluded.
"It's a suit that Trump, who doesn't understand law, would think is a good suit because they include all those tweets and comments. And it praises Trump a lot. It was designed to make Trump think it's a good suit when it's actually not. That's why I have serious doubts about their motivation. Then when I saw who this was, I was like "These are the same corrupt actors that misdirected the White House for four years."
