“I will be so presidential, you will be so bored,” he said in 2016, a few weeks before clinching the Republican nomination. True story.

What’s not a true story is the detail about Lisa Page supposedly needing a restraining order to keep Peter Strzok away , according to Page herself. “This is a lie. Nothing like this ever happened,” she tweeted last night about this clip. “I wish we had a president who knew how to act like one. SAD!”

Is the president of the United States allowed to tell out-and-out lies about another person? Well, sure. What he’s doing here is sleazy as hell, but the First Amendment protects us all in telling untruths about others in *most* circumstances. Usually, so long as your false statement doesn’t damage a person’s reputation in a way that might cost them money (e.g., by discouraging people from hiring them), you’re safe. Even if it does cost them money, you’re still safe if you can show that you took reasonable care to get your facts right even if you ended up getting them wrong. In the case of a public figure like Peter Strzok, you’re even more protected: A public figure can’t win unless he can prove that you either knew your false statement about him was false or that you didn’t care at all to know whether it was false before you said it, i.e. you had reckless disregard for its truth or falsity.

Which … kind of sounds like what Trump did last night, according to Mr. Kellyanne Conway:

First of all, Trump’s statement was false. You can take @NatSecLisa’s word for it (below), but obviously if it were true we would have seen the public record of it long ago. https://t.co/SJXSk70cIX

— George Conway (@gtconway3d) December 11, 2019

Third, assuming that Strzok is a public figure and that New York Times v. Sullivan’s “actual malice” standard applies, that standard is met because Trump made clear that he entertained serious doubts as to whether what he was saying was true. “I don’t know if it’s true,” he said.

— George Conway (@gtconway3d) December 11, 2019

Fourth, under Clinton v. Jones, presidential immunity can’t apply because Trump’s statement did not come within his presidential duties: (a) this was a *campaign* rally; and (b) his assault on Strzok and Page’s *personal* relationship does not involve governmental business.

— George Conway (@gtconway3d) December 11, 2019

“I don’t know if it’s true” is tantamount to saying “I don’t care if it’s false,” which is a farked-up thing to do when accusing someone of something as serious as requiring legal intervention to prevent him from menacing a woman. Smells like actual malice! Which isn’t a surprise given the genuine, bona fide malice towards Strzok evident in many other public statements and tweets Trump has made about him over the past year.

Is George Conway, attorney at law, going to take this case? You may hate him, may think he’s the worst husband evah, but the man’s a formidable enough lawyer to have made many millions of dollars over the course of his career. I’m sure he’d relish the chance to hold his least favorite politician’s feet to the fire for casually smearing Strzok.

But would he win? Ken “Popehat” White, a criminal defense lawyer and First Amendment expert, thinks Conway’s too optimistic about a guilty verdict here. Defamation of a public figure is exceedingly hard to prove, particularly when the defendant switches between president of the United States and insult comic moment to moment. Did he say this seriously, as leader of the free world, or did he say it when he was in Don Rickles mode and everyone in the building knew it?

/2 Always start at the beginning: was there a provably false statement of fact?

It's not as obvious as it sounds. Look at what he said.

https://t.co/PpFFDzLwOB

— IncitementToResurrectionHat (@Popehat) December 11, 2019

/4 Here, it's (1) Trump, a notorious bullshitter, hated for it by half of America and loved (or at least forgiven) for it by the other half, (2) a political rally, where one expects overheated rhetoric and non-literal statements, let alone a Trump one.

— IncitementToResurrectionHat (@Popehat) December 11, 2019

/6 Generally you can't evade defamation by making a factual statement and then saying "that's just what I heard." But this fairly unique combination of circumstances means that it's by far a foregone conclusion that this was a provable statement of fact rather than trash-talk.

— IncitementToResurrectionHat (@Popehat) December 11, 2019

/8 A theme of all of Trump's legal troubles is that it's difficult to prove intent when someone constantly acts that way. Synapses fire in that wad of cheese he has for a brain and things fall out of his mouth. Did he understand or know whether they are true or not?

— IncitementToResurrectionHat (@Popehat) December 11, 2019

/10 Finally, how do you prove actual damages? What person watched that and believed it to be true who didn't already faithfully and obediently hate Strzok? How can he show that it moved the needle on his already pathologically-hated-by-Trumpalos reputation?

— IncitementToResurrectionHat (@Popehat) December 11, 2019

Look at the recent Elon Musk verdict, White went on to say. He called someone “pedo guy”(!!!) — and won the case. If he can get away with that, can’t Trump get away with this?

I think it’d be worth testing, if Strzok wants to risk the “Streisand effect” risk that would come with suing Trump over it. Even in Don Rickles mode, Trump does seem to be making an earnest statement of fact about Strzok in the clip. If all he wanted to do was goof on their affair, he could have said, “Pete was so hot for Lisa, I bet she needed a TRO to keep him away later!” He’s going out of his way to say that a TRO really might exist. And it can’t be — I hope — that Trump’s habit of believing rumors, half-truths, conspiracy theories, and other info-garbage that flatters his prejudices somehow immunizes him legally from accusing someone of something as grave as menacing a former lover. One reason defamation law exists, I thought, was to force people to make some meager effort to get their facts right before making a serious charge. (That’s why the media is usually safe from defamation suits. Even a half-assed effort to get the facts right usually protects them.) Did Trump make any effort whatsoever to find out if Strzok had a TRO out against him? It’s not like he doesn’t have an army of lawyers and intelligence pros who could have found that out for him in eight seconds before he said it.

Still, White’s point that “reckless disregard” for the truth isn’t easy to prove is well taken. In non-legal terms, Trump displays reckless disregard for the truth every day, but for defamation purposes, Strzok might need to show that Trump somehow actively ignored evidence that there was no restraining order against him. Although … what evidence? Why would there be evidence of that? Were newspapers supposed to be running stories over the past year like, “Still No Lisa Page TRO Against Peter Strzok”? One would think that an obvious “sign” that Strzok wasn’t under a TRO is that no one, certainly no credible media outlet, has claimed that he is.

But maybe Trump saying “I don’t know if it’s true” is enough for the defense to prevail. That would be ironic, since that’s what Conway is pointing to as proof that Trump was reckless in making his statement. But as White says, it also undermines the claim that Trump was making an assertion of fact. He specifically warned the audience that it might not be a fact, did he not? All he’s guilty of here is a little light rumormongering about a political enemy in front of an audience of seething partisans.

You know, like George Washington did.

White’s point about damages is also well taken, although it imagines a perverse dynamic in which Trump is legally *more protected* in defaming an adversary the more he works to destroy that adversary’s reputation in other contexts. For instance, now that he’s spent nearly two years telling his fans in a thousand different ways that James Comey is a scumbag and an enemy of the United States, why not go ahead and toss “and also I hear he fondles children, although I don’t know if it’s true” into his next Comey tweet? If all Trump fans already hate Comey as much as humanly possible, well, then calling him a kiddie-toucher can’t possibly do any more damage to his reputation. That can’t be how the law works, although maybe Trump’s defense could argue that since no one outside his fan base takes anything he says very seriously, no employer who’d hire Peter Strzok is apt to take the TRO thing seriously either. It’s something they could find out for themselves with a background check, in fact. Would that be enough to defeat Strzok’s claim for damages? Or would Strzok say that it’s “defamation per se” to accuse him of something quasi-criminal like having a TRO filed against him, in which case he doesn’t need to prove damages? Legal eagles are invited to weigh in.