But for Trump, it seems impossible that anyone at MSNBC would find Andrew Weissmann tolerable, no less one of their “go to” federal prosecutors for all things legal, no matter how utterly ignorant he and his cohort may be about state criminal law and civil law. These are the very same prosecutors who gave us incarceration nation, who were complicit in putting tens of thousands of black men in prison, some of whom were even guilty, and happily skirted the Constitution when it served their flavor of justice.

And yet, Weissmann is an omnipresent persona on the MSNBC tube because he hates Trump and will say whatever it takes to show how everything bad in the legal universe leads back to Trump. And he does so with gravitas because of his ascribed credibility. He was a federal prosecutor. He was general counsel of the FBI. He was part of Mueller’s team. He’s a prof at NYU law school. He wrote a book deciphering the Trump indictments. And no one, but no one, challenges anything he says. Indeed, their gushing thanks for his legal brilliance would be embarrassing to anyone with a modicum of humility. But that’s not Weissmann.

So why would Weissmann have hesitated to call out another lawyer for impropriety?

Coached her to lie? Them’s fighting words, and Stefan Passantino, a lawyer with more than 30 years experience who served in the Trump administration in 2017-18 and went into private practice afterward, was up for the fight. Passantino sued Weissmann for defamation. Weissmann moved to dismiss upon the contention that calling Passantino the lawyer who “coached her to lie” wasn’t a factual assertion, but just Weissmann’s pundit-ish opinion.

After a lengthy recitation of what Passantino advised his then-client, Cassidy Hutchinson, which carefully skirts the outer fringes of disingenuous testimony, but never quite crosses the line into coaching to lie, D.C. District Court Judge Loren L. AliKhan addresses the thorny question of whether something that facially appears to be a clear factual assertion is what it says, which would then open the door to a defamation claim, or a matter of opinion which cannot, by definition, be defamatory.

The parties agree that this motion boils down to a core question: was Mr. Weissmann’s social media post that “[Mr. Passantino] coached [a witness] to lie” a verifiably false fact, or a subjective opinion? This is not an easy inquiry, and the answer in such cases is rarely clear cut.

Judge Alikhan applied the four prong test from the en banc Ollman v. Evans decision.

The first Ollman v. Evans (D.C. Cir. 1984) (en banc) factor requires the court to determine whether the challenged statement “has a precise meaning and thus is likely to give rise to clear factual implications.” The touchstone of this inquiry is whether “the average reader [could] fairly infer any specific factual content from [the statement].” As the Ollman court noted, “[a] classic example of a statement with a well-defined meaning is an accusation of a crime.” The allegedly defamatory portion of the post can be distilled into: “[Mr. Passantino] coached [Ms. Hutchinson] to lie.” …The definition of the verb “coach” is “to instruct, direct, or prompt.” While Mr. Weissmann argues that “coached” is “indefinite,” “ambiguous,” and “can ‘mean different things to different people at different times and in different situations,'” the court concludes that the word conveys a sufficiently precise meaning in the challenged social media post.

Readers of a statement do not isolate and parse individual words into all of their possible connotations. Mr. Weissmann wrote that Mr. Passantino “coached [a witness] to lie.” In that string of text, read as a whole, the clear factual implication is that Mr. Passantino “instruct[ed], direct[ed], or prompt[ed]” Ms. Hutchinson “to lie” to the Select Committee. While it is true that general statements that someone is “spreading lies” or “is a liar” are not categorically actionable in defamation, Mr. Weissmann’s post very directly claimed that Mr. Passantino had committed a specific act—encouraging or preparing a specific witness to make false statements. A reasonable reader is likely to take away a precise message from that representation.

If this seems like a lot of words to say the obvious, it is. When Weissman twitted “coached her to lie,” was there any question but that this was a direct, specific factual assertion of illegal and/or unethical conduct by the lawyer? It’s hard to imagine that this was even in doubt. But Weissmann has more up his sleeve.

The fourth and final Ollman factor evaluates the broader social context beyond the statement and its immediate surroundings…. Starting with X, the statement’s backdrop, Mr. Weissmann asserts that it is generally considered an “informal” and “freewheeling” internet forum. [S]ome courts have held that “the fact that Defendant’s allegedly defamatory statement … appeared on Twitter conveys a strong signal to a reasonable reader that [it] was Defendant’s opinion.”

Is there a twitter exception to defamation, that nothing that appears on the “‘freewheeling ‘internet forum” can be taken as factual? Is twitter a “safe space” for false and potentially defamatory factual assertions? Who knew? But that’s not the only claim Weissmann makes to contend that his factual assertions are never to be taken as factual assertions because Weissmann, whom MSNBC builds up as a legal god whose every utterance is unassailable, is a “pundit.”

This leads to Mr. Weissmann’s status as a “political pundit.” … Mr. Passantino asserts that Mr. Weissmann’s career as a former prosecutor, his twenty-plus years of experience in the Department of Justice, and his record as an accomplished author of a book about federal prosecutions make his audience more likely to view his statements as facts. And while Mr. Weissmann currently serves as a political commentator on MSNBC, Mr. Passantino argues that that should not shield his comments from liability.

And what does the court have to say about Weissmann’s free pundit pass?

At the same time, Mr. Weissmann is correct that reasonable readers know to expect subjective analysis from commentators. As a political pundit (rather than, say, a news anchor), his statements possess a general air of opinion rather than fact. “Reasonable consumers of political news and commentary understand that spokespeople are frequently (and often accurately) accused of putting a spin or gloss on the facts or taking an unnecessarily hostile stance toward the media or others.”

This is a particularly dangerous, bordering on nefarious, view. Whether reasonable people expect that pundits on the cables are basically spewing unreliable and often completely wrong horseshit is one thing, but the facts upon which their horseshit is based is entirely different. While I have significant doubts about what “reasonable people” know these days, or who these “reasonable people” might be, the distinction between reporting of facts which are then tossed to the pundits for spin should not be so easily blurred.

The case will proceed for the determination of all the other, normal elements of defamation, but even a former prosecutor and MSNBC pundit whom no reasonable person would ever otherwise believe like Weissmann can commit defamation. Assertions of fact, even when uttered by the otherwise incredible, are still assertions of fact.