Your Monthly Constitutional

Lincoln Memorial University Duncan School of Law

Did Donald Trump refer to fallen American soldiers as “losers?” Did he call our combat veterans and POWs “suckers?”

I don’t know, and, unless you’ve been hanging around with the President for the past several years, neither do you. But I do know a good way to find out.

First, let’s acknowledge the importance of these questions, especially for those of us in uniform, or with relatives in uniform, or whose loved ones have made the ultimate sacrifice. If Trump actually said such things, then most Americans would agree that he should not be our Commander-in-Chief.

The allegations appeared in a recent article in The Atlantic, a venerable periodical that has published some of the greatest writers in American history. The article in question was written by Jeffrey Goldberg, who is also the magazine’s editor-in-chief. Goldberg begins with a description of a cancelled 2018 presidential trip to an American cemetery in France:

Trump rejected the idea of the visit because he feared his hair would become disheveled in the rain, and because he did not believe it important to honor American war dead, according to four people with firsthand knowledge of the discussion that day. In a conversation with senior staff members on the morning of the scheduled visit, Trump said, “Why should I go to that cemetery? It’s filled with losers.” In a separate conversation on the same trip, Trump referred to the more than 1,800 marines who lost their lives at Belleau Wood as “suckers” for getting killed. 1

Goldberg references Trump’s public disparagement of John McCain as a “loser,” and Trump’s lack of respect for McCain’s more than five years of captivity in North Vietnam—five years which McCain could have shortened if he had accepted an enemy offer of special treatment. Goldberg then notes that Trump has also referred to former President George H.W. Bush, a Navy pilot shot down in World War II, as a “loser.”

Goldberg alleges that, during a 2017 visit to Arlington National Cemetery, Trump displayed extraordinary callousness to a Gold Star father, John Kelly, his Secretary of Homeland Security:

Trump was meant, on this visit, to join John Kelly in paying respects at his son’s grave, and to comfort the families of other fallen service members. But according to sources with knowledge of this visit, Trump, while standing by Robert Kelly’s grave, turned directly to his father and said, “I don’t get it. What was in it for them?”

Finally, Goldberg claims that Trump has expressed particular disdain for our wounded warriors:

Trump has been, for the duration of his presidency, fixated on staging military parades, but only of a certain sort. In a 2018 White House planning meeting for such an event, Trump asked his staff not to include wounded veterans, on grounds that spectators would feel uncomfortable in the presence of amputees. “Nobody wants to see that,” he said.

These are serious allegations. Trump has vigorously denied them:

It’s a disgrace that a magazine is able to write it. And anybody that — if the — if they really exist, if people really exist that would have said that, they’re low-lives and they’re liars. And I would be willing to swear on anything that I never said that about our fallen heroes. 2

Goldberg stands by his story. 3

Anonymous sources are always controversial, but other journalists, including Carl Bernstein, have defended using them:

The same thing happened in Watergate. We used anonymous sourcing at the Washington Post — Deep Throat — almost all 200 of our stories about Watergate were based on anonymous sourcing. That’s the only way to do this. And we must continue in the press to do our reporting day by day by day because that’s how we know who this president — what this presidency really is. 4

But the president has a point. Who are these sources? How reliable are they? Well, there’s one good way to find out: a civil claim for defamation. 5 To prevail, the President, as a public official, would have to prove “actual malice,”—that The Atlantic either knew its allegations were false or published them recklessly. 6 He can’t do that without knowing the identity of The Atlantic’s sources.

Florida, which Trump claims as his state of residence, has a press shield law, but it provides only qualified immunity. A plaintiff can overcome this immunity by demonstrating: 1) relevance; 2) inability to obtain the evidence elsewhere; and 3) a compelling need. 7 The President could make a strong case for elements one and three, relevance and need. He could prove the second element by deposing the relatively small group of people who might have knowledge of his alleged disrespect for the military—he knows who they are. If those witnesses testify, fine; if they refuse, the president will demonstrate his inability to obtain the identities of the confidential sources other than from The Atlantic itself.

In either event, the truth would likely come out. So if the President wants to disprove The Atlantic’s explosive claims, he can do so in a way that is far more effective than merely calling his critics “low lives.” He can simply go to court.

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7 Goldberg, Jeffrey, “Trump: Americans Who Died in War Are ‘Losers’ and ‘Suckers,’ The Atlantic, Sept. 9, 2020, available at: https://www.theatlantic.com/ politics/archive/2020/09/trump-americans-who-died-at-war-are-losers-andsuckers/615997/ “Remarks by President Trump After Air Force One Arrival , Joint Base Andrews, MD, September 3, 2020,” available at: https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-air-force-one-arrival-joint-base-andrewsmd-september-3-2020/. Video available at: https://www.cnn.com/videos/business/2020/09/06/goldbergto-trump-were-not-going-to-be-intimidated.cnn/video/playlists/business-reliablesources/. “Carl Bernstein defends Atlantic editor: ‘Almost all 200 of our stories about Watergate were based on anonymous sourcing’. The Washington Examiner, September 6, 2020. Available at: https://www.washingtonexaminer.com/news/carl-bernstein-defendsatlantic-editor-almost-all-200-of-our-stories-about-watergate-were-based-onanonymous-sourcing. As of this writing, the President has filed no such claim, and none of the anonymous sources has come forward. New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). 90.5015(2), Fla. Stat. (2019).

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.