It was the right decision. A “no-brainer.” A Florida State Attorney announced Thursday that he would not prosecute the criminal case against Donald Trump’s campaign manager, Corey Lewandowski, for grabbing the arm of a reporter.
It makes perfect sense. Misdemeanor battery is the intentional touching of someone against their will or harming someone. Technically, Lewandowski committed a battery. But there are degrees of offensive touching and harm. Some are major, others are minor. It was clear the prosecutor felt this was a minor incident which, under inflamed political circumstances, had been blown out of proportion. Go figure.
The surveillance video of the encounter is instructive. In fact, it is the star witness. Lewandowski clearly grabs the arm of the reporter, Michelle Fields. He pulls her away from Trump. Was it done forcefully? It appears so. But did he throw her to the ground or do something other than restrain her? It doesn’t look that way. If prosecutors were to bring to trial every instance in which people’s arms are grabbed, courts would be clogged like a Los Angeles freeway.
The physical harm is also a consideration. How injured was the alleged victim? The State Attorney confirmed there were bruises in the form of finger imprints. That’s it. No broken bones or sprained wrists. No head injury. No blood. Just a couple of faint bruises. Some people bruise easily, and the defense would surely bring this up. But on balance, was Fields really hurt? Enough to spend taxpayer resources in bringing a criminal case to trial? In making a decision, prosecutors must use their common sense. In this case, they did.
A Viable Defense
The State Attorney was persuaded that Lewandowski was trying to protect Trump. It is a good and viable defense. Similar to self-defense, the law allows the accused to claim “defense of another” to excuse his otherwise criminal conduct. A good prosecutor will examine the totality of the circumstances. That is, why did it happen? What events led to the physical touching? In a phone call to the State Attorney, Trump said his campaign manager was trying to protect him from an overly-aggressive reporter who was getting too physically close to him. One Secret Service agent confirmed that Fields touched Trump before Lewandowski pulled her away. The video proves both accounts. Cameras don’t lie. They are more reliable than most fallible and biased eyewitnesses.
The legal standard for defending someone else is defined by one word: “reasonableness.” Was it reasonable for Lewandowski to fear for the safety of Trump? Maybe. But maybe is good enough in a court of law. Remember, prosecutors must prove their case beyond a reasonable doubt…which is an extremely high burden. Maybe is enough to cast doubt on the merits of the state’s case.
Beyond that, the accused could also avail himself of what’s called “imperfect defense of another.” What is it? An honest but mistaken belief that someone is about to be harmed. It is known in legal circles as the “oops defense.”
Lyle and Erik Menendez employed a comparable “imperfect self-defense” during their double murder trial. They claimed they killed their parents because they genuinely believed mom and dad were going to harm them. At trial, the brothers acknowledged they were probably mistaken in that belief. “Oops…sorry mom and dad!” Of course, it was a preposterous claim and they are now serving life sentences. But Lewandowski could have employed successfully a similar defense in arguing that, perhaps, he overreacted or misjudged the situation. He made a mistake. The “oops defense” gives him a legal out.
If Fields feels aggrieved, she has only herself to blame. At least that’s the view of the State Attorney. He seemed highly critical of the reporter for defying instructions to move to the back of the ballroom. Instead, she worked her way forward and wove through a phalanx of Secret Service agents, reached Trump and touched his arm. Again, it is depicted on the videotape. Trump, according to the prosecutor, recoiled. At that point, his campaign manager intervened to pull Fields away.
Why would police charge Lewandowski, only to have the prosecutor decline to bring the case to trial? The answer is fairly simple. Police have a lower legal standard of “probable cause” in deciding to charge someone with an offense. For prosecutors, the standard is much higher. They must decide whether they can win the case at trial. How will jurors react to these facts? If public opinion is any barometer, it would have been extremely difficult for the state to convince unanimously 12 jurors beyond a reasonable doubt. Prosecutors hate to lose cases, which is why they only prosecute “winners.” And even then, they don’t always win.
A Defamation Case
Fields can still sue Lewandowski for defamation. She would have a fairly strong case against him because the standard of proof for the plaintiff is lower in a civil lawsuit for money damages –a preponderance of the evidence. In plain terms, it means she’d have to prove her case by the greater weight of the evidence. That is a lot easier than the criminal burden.
So, how was Fields allegedly defamed? After their interaction, Lewandowski called her “delusional” and insisted he never touched her. In essence, he was calling Fields a liar. But the videotape belies his statement. He seems like the liar. He is seen grabbing her and pulling her away. Defamation is a false statement which damages someone’s good name and reputation. Has Fields been damaged? Judging from the social media commentary and her precipitous job departure, I’d say yes. Her damages could be considerable.
There is one more twist to a defamation case. So-called “public figures” have an extra burden in court. They must prove “malice.” In other words, they must demonstrate the defendant knew his statements were false. It is debatable whether Fields would be regarded as a “public figure” but it doesn’t matter. Again, the videotape takes care of that. Lewandowski knew he grabbed her. He’s shown doing it on the video. It was foolish for him to pretend otherwise. But it’s always the cover-up, not the crime...
Of course, Lewandowski might try to claim amnesia. It’s a common affliction among politicians and their sycophants.
Gregg Jarrett is a Fox News legal analyst and former defense attorney.