Breitbart News would love to delay Shirley Sherrod’s lawsuit forever if they could. The defense has already succeeded in dragging the litigation out for years, and now they want to begin an endless discovery process on the US Department of Agriculture and the White House. Both sides in the litigation have requested documents from the Obama administration related to Sherrod’s firing, but according to Josh Gerstein at POLITICO, one lawyer involved in the case claims that the Department of Justice has told the court it will assert executive privilege.

U.S. District Court Judge Richard Leon said at a status hearing on the lawsuit last month that he was fearful that a White House privilege assertion might bog down the case.

“One of my biggest concerns, of course, would be if we found ourselves in a situation where I had to now have litigated in front of me claims of executive privilege that would in some way, you know, slow everything down to a halt,” Leon said, after private lawyers involved in the case described their interaction with the government. “I am really happy to hear no one is rattling any swords of that kind and maybe the reason why is because there isn’t any of that kind to deal with which would be great. I am not looking for more litigation. I have plenty to do around here.”

Leon also suggested he might look skeptically on such a claim in a case where political sensitivities, rather than national security concerns, were at stake. “I am not sure the D.C. Circuit has ever recognized that as a sufficient basis for an executive privilege claim, political embarrassment, to spare the White House political embarrassment,” he said.

We do not know, but do suspect, that Gerstein’s source is working the Breitbart side of the case. There are two reasons. First, the source is contradicted by Gerstein’s contact at the Justice Department. Second, the notion that the White House would stand in the way of Mrs. Sherrod’s vindication to cover up some malfeasance on their part is a purely Breitbartian conceit. Whatever embarrassment the USDA or the president might suffer if Mrs. Sherrod discovers the exact sequence of events in Washington, DC when she was fired, it would be nothing compared to the massive fishing expedition that Breitbart News almost certainly wants to undertake.

Andrew Breitbart was quite smitten with the Pigford story because it had the correct optics for his brand of political propaganda. African Americans were taking part in a massive settlement of a lawsuit which alleged the federal government had systematically under-served black farmers for decades. In Breitbart’s hands, this story carried the implied imprimatur of his previous “journalism” regarding ACORN and the New Black Panthers, becoming another note on his theme of lawless minorities getting over on white people.

It was in this context that he took one segment of a speech by Sherrod and presented it completely out of context, an act of malicious and sloppy journalism. Gerstein narrates this point rather bloodlessly:

However, allegations soon emerged that Breitbart had mischaracterized Sherrod’s speech. He denied doing so and said he did not have access to the entirety of the USDA official’s remarks. When the full video of Sherrod’s remarks became public, her remarks appeared to many to be less inflammatory than initially portrayed. Within two days of forcing Sherrod out, the administration reversed course, with Vilsack and even President Barack Obama himself apologizing and encouring Sherrod to take another job at USDA.

Once the entire speech was made available, it was immediately obvious to everyone who was not a Breitbart fanatic that he had lied about the context of the clip, and that his story was malevolently unfair to Mrs. Sherrod. It was Breitbart’s editorial responsibility to view the full speech and tell the story right. His attempt to deny culpability at the time by pleading lack of access to the full video seems even more mendacious now, because the John Doe who sent Breitbart that clip says that he made more than one attempt to transmit the entire speech. Every news editor holds stories until the fact-checking is done, so why did Breitbart fail to do so? The answer, of course, is that he did not consider the truth important. He never did. Remember, it took him months to admit that James O’Keefe had never actually been dressed as a pimp inside any ACORN office. Andrew Breitbart did not scream at Occupy protesters to “stop raping people” because of an actual wave of rapes in the encampments, but because he hated the Occupy Wall Street movement and wanted to hurt it. The grassroots right wing admired Breitbart for this “in your face,” offensive approach to his stories because they did not care about the truth any more than he did. They wanted someone to feed their persecution complex; he was too happy to oblige their appetite for smears.

By the time we all understood what Breitbart had done, Mrs. Sherrod was already out of a job. Breitbart News and its apologists have always claimed that Obama and the USDA were at fault for this fact, as if Breitbart’s slimy misuse of that clip had nothing to do with it. This is essentially the defense that Breitbart News would now like to construct by way of discovery if they can. We doubt that this approach will succeed forever at preventing a judgment. It does have a chance of delaying the inevitable for years and years yet, perhaps even outlasting Mrs. Sherrod’s own lifespan, while eating up whatever remains of the venture capital Breitbart obtained before his death so that there is nothing left for the plaintiff to win.


  • RogerS

    I have been surprised at all the media surrounding the case over the National Review case but not surprised about the result. In legal circles, there is a definite awakening that the “conservative defamation machine” is a cash cow for lawyers. There was a seminar at one legal conference recently where lawyers were trained on how to file and win suits against conservative commentators, pundits and organizations for defamation and invasion of privacy. The presenter said that taking on these clowns was like pulling fish out of a bowl because so many of them say outrageous things that are clearly defamatory.

    This Michael Mann case proves the point exactly. The reporter used defamatory language rather than facts to argue his point, and then attacked Mann and the judge because they wanted to hold him accountable.

    The result here is that a venerable publication, the National Review, has been scandalized, and may be forced to declare bankruptcy because of a “reporter” who failed to exercise good judgment.

    In the case of Mr. Kimberlin, the conservatives exhibited a mob mentality which apparently caused many to detach themselves from normal good judgment and attack him over and over for the kill. They were like a vicious dog pack going wild with frenzy after tasting blood. Fortunately, Mr. Kimberlin fought off the attack and is now taking them to court to show the court and the world what they did. I have a feeling that if this case drags out like the Mann case has (and the Breitbart case has), that there will be defendants and organizations that will be bankrupt too. Personally, as a lawyer, I would tell everyone of the defendants in that case to watch their lawyers because here is what they are going to do. “Oh my god, Mr. Defendant, we can beat this, the guy is a felon and a liar, and he is pro se and I have a law degree from (blank), we will knock this out of the park on a motion to dismiss and get him to pay attorney fees and then have him found to be litigious and he will never be able to go after conservatives again. Just pay me $400 per hour and we will have this wrapped up on no time.”

    But in reality, the lawyer already knows that this case is very very difficult. A good lawyer’s worst nightmare is going up against a pro se litigant because the judge has to, by law, give the pro se litigant the benefit of the doubt. And motions to dismiss are very hard to win. And what if the judge did make a ruling against the pro se litigant, it would not be with prejudice but would allow the litigant to file an amended complaint to fix the problem. So this drags on, and let me tell you that these big law firms in the case will be sending out bills in the next months totaling hundreds of thousands of dollars. And they will continue to bullshit their clients with statements about how outrageous the judge’s decision was, how they can win at the next round etc. I am telling you that it is a scam and a crapshoot. This case is going to be very difficult to win for any of the defendants, By the time the defendants wake up and realize that they have been sold a bag of dirt they will be out hundreds of thousands and possibly millions of dollars. The defendants will be demoralized, angry and broke. This will happen, so any defendant who reads this comment has an obligation to tell the other defendants and to go into this clear eyed.

    So here is some honest advice from a lawyer who is not getting hundreds per hour to rip you defendants off with false promises. You are going to lose this case, maybe not on all counts, but on several. If you wait to come to that understanding, you will be a lot angrier, poorer and cynical. Federal court is a lot more expensive than state court, and all the defendants lost their motions to dismiss in that case after believing falsely that they would win. Your lawyer is lying to you if he says you have even a 10% chance of prevailing in this case. Why is he lying?? Because he wants to bill you hundreds of thousands of dollars before he has that come to Jesus talk with you. You are being scammed by your attorney pure and simple. Of course, he won’t admit that, because there is always a slim chance of something falling in your favor, but cases are rarely dismissed with prejudice so this case can go on for years.

    In conclusion, the defendants need to wake up a face reality. Their lawyers will not tell them the truth at this stage of the game. It’s all about the money for the lawyers now. So the defendants need to hear what their lawyers are saying when they say, “oh yes, we can get this knocked out with the motion to dismiss.” This means, “we are going to charge you $25,000 to file a motion to dismiss and then another $20,000 to prepare for the hearing and attend it.”

    Many of the defendants in this case have already been suckers when they accepted the defamatory narratives of Mr. Frey and Mr. Walker, and now they are being suckers by accepting the false narratives of their lawyers that they can win the case. They need to wake up, put their feet down and say, “I want this over with now, do it.” And then walk away.