In an unusual brief that cited exit-polling data on “moral values,” United States attorneys defending Rep. Cass Ballenger (R-N.C.) from a pending libel suit said the outgoing lawmaker had good reason to worry about what voters might think about his separation from his wife in late 2003.
The separation is at issue because Ballenger, in an interview with The Charlotte Observer in September 2003, blamed his marital break-up in part on the couple’s proximity to the headquarters of an Islamic group. After the article appeared, the group, the Council on American-Islamic Relations, filed a $2 million libel and slander suit.
CAIR, the nation’s largest Muslim civil-rights advocacy group, accused Ballenger of making false and defamatory statements harming its reputation when he referred to the group as a “fundraising arm for Hezbollah” and blamed it for the breakup of his 50-year marriage.
Ballenger, who is seeking to have the lawsuit dismissed, decided not to seek another term in 2004.
“Congressman Ballenger’s belief that matters relating to his personal life would be of interest to his constituents and might well affect his ability [to] work on the legislative agenda that the people of the Tenth District elected him to pursue was, to say the least, well founded,” the government lawyers argued in a Dec. 2 court filing.
Ballenger “represented a Congressional district where moral values and matters related to marriage and family matter a great deal,” the lawyers wrote, adding, “His decision to personally respond to a reporter’s questions about his marriage, and to answer those questions forthrightly, was therefore actuated by an interest to continue as an effective representative of those who elected him to office, and legitimately so.”
As evidence, the government lawyers cited a CNN exit poll of 2,167 voters in the Tar Heel State showing that “North Carolina residents listed ‘Moral Values’ as the single most important issue in the election. Further, 89 percent of voters who indicated that ‘Moral Values’ constituted the most important issue cast their votes for the Republican Presidential candidate.”
The use of exit polls in a legal brief is considered an unusual tactic — and especially so given the controversy surrounding the “moral values” question. After analysts began poring over the details of the national exit survey, pollsters from across the ideological spectrum have expressed various degrees of skepticism about the stock that should be placed in the moral values findings.
“The U.S. Attorney is straining to fit Congressman Ballenger’s conversation with a reporter on a purely personal matter — the state of his marriage — into the scope of his employment,” observed one lawyer, who declined to be named.
In the Observer article, Ballenger said his wife, Donna, had become distressed when CAIR moved into a Capitol Hill office on the same block where the couple lived after Sept. 11, 2001.
The 77-year-old lawmaker said the group’s presence “bugged the hell” out of his spouse — particularly when she saw women in “hoods” coming and going from the organization — and noted that the group was only “2 1/2 blocks from the Capitol” and “could blow it up.”
In their 17-page memorandum, Ballenger’s attorneys — U.S. Attorney Kenneth Wainstein, Assistant U.S. Attorney R. Craig Lawrence and Assistant U.S. Attorney Peter Blumberg — didn’t deny that the Congressman had made the derogatory statements about the group during a 15-minute interview.
But they argued that Ballenger’s remarks came in the course of legislative business, and thus cannot be sued under federal law.
Under the 1946 Federal Tort Claims Act, federal employees are immune from tort liability if they were acting within the scope of their official duties. Because the United States cannot be sued for libel or slander under the doctrine of sovereign immunity, the government is seeking to have CAIR’s lawsuit dismissed.
According to the court document — as well as affidavits filed by Ballenger and his chief of staff, Dan Gurley — The Charlotte Observer’s Washington correspondent, Tim Funk, had asked Gurley in late September whether it was true that the Congressman had separated from his wife.
Gurley confirmed that the pair had amicably separated after 50 years of marriage, and Ballenger discussed his separation with Funk in a follow-up interview the next day during a 15-minute interview from his Rayburn office.
Ballenger prides himself on his reputation in his district “as a straight-talking businessman rather than a politician, and I was acutely aware that my ability to continue advancing my legislative agenda in Congress and to effectively represent my district depended on the continued trust and respect of my constituents,” Ballenger said in a sworn affidavit signed on Nov. 19.
Ballenger said he knew that reports about his marital status would be “of concern in my socially conservative district” and was aware that a “public scandal” related to his marital status could undercut his ability to carry out his Congressional duties.
Ballenger said he decided to “clarify” his “family situation” with the journalist in order to “defuse an issue that could affect” his job as a Congressman.
Though Ballenger ultimately decided not to seek re-election, Wainstein and his colleagues said the “results from the 2004 election leave little doubt that matters relating to marriage and family matter greatly to North Carolina voters, including those voters within the state’s Tenth Congressional District.”
Referencing a wrongful-death lawsuit against former Rep. Bill Janklow (R-S.D.) that was recently dismissed by the court, Ballenger’s government lawyers argued that whether Ballenger’s statement was, in fact, defamatory is irrelevant in the determining whether he was acting in the scope of his employment.
While Janklow was driving his car when he hit an individual who was riding a motorcycle, killing that individual, the attorney general certified that at the time of the accident, the Congressman was acting in the scope of employment.
Ballenger’s lawyers noted that in that case plaintiffs failed to convince the court that Janklow’s driving in a reckless manner was “a significant departure from usual methods of achieving an authorized result.”