Category: United States Law and Policy

Notes on gangster states: why legitimacy matters when the state has a monopoly on coercive and lethal force.

12th January 2026

One priority for a modern state – perhaps the highest priority – is for it to keep its citizens safe from harm.

And within that priority is the need for the state to to keep its citizens safe from harm inflicted by the state itself.

A modern state has – or should have – a monopoly on legitimate coercive and indeed lethal force.

By “legitimate” is meant that the force used will have a lawful basis, will be used in accordance with legal rules, is sanctioned ultimately by someone capable of being publicly accountable, and is capable of review by an independent court.

So what happens when this breaks down?

What happens when the it is the state that is inflicting injury and death on its own citizens – or on people in its care?

And what happens when that coercive and lethal force does not appear to have a legal basis and/or is not in accordance with legal rules and/or is sanctioned by those with no accountability and/or is not capable of independent judicial review?

That is: what happens, for any or all these reasons, the use of coercive and lethal use of force does not seem to have any legitimacy?

What happens when the only justification for the use of coercive and lethal use of force – or excuse or pretext – is that might is right?

Well, among other things, you have a fundamental failure in the functioning of a modern state.

For the key word here is “legitimacy”.

Anybody can (seek to) use coercive and lethal force – and many will get away with it.

And if that is possible, then you have a gangster state, an outlaw state, a pirate state – where anything goes by those who can use coercive and lethal force and be protected from any legal or political consequences.

Some may like the idea of such a state – some may read science fiction or fantasy fiction where there are cities or entire societies where might is right.

Or when may look at various places – now and throughout history – where any sense of a legitimate central order has broken down. And what one will often see are massacres and gangsterism.

That is why there is a quid pro quo – the state gets to have a monopoly on the use of coercive and lethal force, in return for that coercive and lethal force being used legitimately.

That is that the force used will have a lawful basis, will be used in accordance with legal rules, is sanctioned ultimately by someone capable of being publicly accountable, and is capable of review by an independent court.

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Now looking at the United States, there appears to be the free use of coercive and lethal force by the federal agency ICE (Immigration and Customs Enforcement).

Last week Renee Nicole Good was killed by ICE in circumstances that seem to have been murder: a state execution of an innocent person on the streets for no good reason.

At the start of that day three children had a mother and at the end of that day they did not, just because an ICE agent decided to shoot their mother three times in the face.

I have written about this over at Prospect in an article entitled Death in Minnesota – please click here to read it.

Fatalities happen, police shootings of innocent people happen – but what was especially striking about this killing was the response of the federal government and its supporters.

For want of a better word: they celebrated the killing.

The woman somehow deserved it because she was dubbed “domestic terrorist”.

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Now turning back to the general issue of legitimacy, we can see that this use of lethal (and not only coercive) force appears from from any of those elements which can (in limited circumstances) render it legitimate.

The extra-judicial execution of Renee Nicole Good seems not to have a legal basis, it was not in accordance with legal rules, was sanctioned (even implicitly) by those who seek to evade accountability, and it may not be capable of review by an independent court.

The federal state is resisting working with the local police.

It looks as if the state is confident it can get away with it.

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But.

The cost of the state getting away with it will be further diminution of the legitimacy of the state having a monopoly of coercive and legal power.

Yes, as a matter of realpolitik, the state can seemingly do as it wishes.

Yet in the medium term, legitimacy matters.

A society is not easy to govern unless there is at least acceptance of the powers of the police and the military: sheer repression is expensive and often unsustainable.

That is why the wise tyrant hides behind a veneer of legalism and constitutionality.

And that is also why gangster states rarely last very long.

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We are Christopher Isherwood, watching the scenes in the Berlin street below from our apartment window above.

8th January 2026

Watching from afar further shifts in a worsening polity

The Berlin novels and notebooks of Christopher Isherwood from the early 1930s contain fascinating characters – even though the apparent real-life inspirations for the likes of Sally Bowles (Jean Ross) and Arthur Norris (Gerald Hamilton) were somewhat different from their fictional counterparts.

But the most fascinating – and complex – creations in those works were the narrators – sometimes “Christopher Isherwood” (in inverted commas), sometimes William Bradshaw.

Do not be taken in by the deft misdirections of the narrator:

“I am a camera with its shutter open, quite passive, recording, not thinking.”

The narrator is not any passive camera, though he wants you to think so.

(For, as always, Isherwood is very charming.)

He is instead skilfully writing about difficult subjects – including the visible slide to Nazism and barbarity all around him – while making you feel you are working these things out for yourself from the details he provides.

He says he is recording, not thinking – but he is very much making you think.

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Like Isherwood – or “Isherwood” – walking the Berlin streets or looking down from his apartment window, we all – via social media and mobile phone footage – can now have glimpses of an ever-worsening situation in the United States (and also elsewhere).

And again like those reading his narrative, we can put two and two together and realise what is going on in what we don’t glimpse – which is not reported on social (or mainstream) media or recorded on mobile devices.

What happened yesterday to a woman in Minnesota was horrific – and yet we know that it cannot be unique. One can tell that the distinctive quality of this incident is that it was caught on camera when many others are not. There is no reason to believe it was a one-off.

As such anyone watching can tell what is happening off-camera – but, as with Isherwood and others in the early 1930s, there is very little which we can do (especially from the other side of the Atlantic).

(And, which is a fair point, the well-documented record of the United Kingdom state in killing and torturing people in Northern Ireland, Kenya, Iraq and Afghanistan confers on us no moral superiority.)

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No slide towards barbarity and Fascism is inevitable: even in the 1930s some countries were able to steer their polities in a different direction. Little or nothing is bound to happen in human affairs. Things can change for better, and sometimes do.

But nonetheless the sense of dread and doom that must have been a feature of the early 1930s is sometimes inescapable.

The evidence from our virtual apartment window does not point in an encouraging direction.

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But what about international law?

6th January 2026

What happens to an international legal order when a superpower goes rogue

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The notion of international law prompts strong opinions.

(Here is meant what lawyers call “public international law” – in general, the law which governs nation states and international organisations. There is also “private international law” which is generally dull and uncontroversial – cross-border contracts and what-not.)

Some even doubt international law exists.

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I once heard a very distinguished legal academic – whose name is on the spines of volumes in every law library throughout the land – aver the following:

“In court, the laws of England and Wales are a matter of law. You just have to show the relevant legal authority or instrument and the court should accept that as what the law is.

“Foreign law – say the law of France – is different. This is a matter of evidence – expert evidence. You get an expert in that foreign law and their evidence is put before the court.

And international law, well. (Pause.)

International law is a matter of fiction.”

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There is perhaps no other branch of law which is the subject of such scepticism, if not outright denial, among even lawyers themselves.

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From one perspective, this rejection is perhaps understandable.

A great deal of what is called (public) international law will never be determined or enforced by a court of competent jurisdiction – it will never be litigated, and the nation state (and head of state) breaching that law will feel confident there will not be any consequences.

As one famous jurist once put it: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

And if there ain’t a court that will “do” international law then it is little or nothing more than a polite political fiction – a set of normative assertions with no positive existence.

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But.

There is more to law than its determination or enforcement by a court.

Even domestically, the vast majority of statutory provisions – and indeed many statutes – have never been litigated and will probably never be litigated. Yet they are still the law.

And this is because – in very general terms – they are recognised to be the law and parties regulate themselves accordingly.

As the greatest of all contract law academics G. H. Treitel put it in his classic definition of a contract (emphasis added):

“A contract is an agreement giving rise to obligations which are enforced or recognised by law.”

Enforcement – and thereby the possibility of enforcement – is not the only test of whether a thing is a law or not.

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In (public) international law, many of the obligations are created and agreed by nation states themselves. These are usually in the form of treaties.

There can be treaties between states for particular purposes – and there can be treaties of general of general application. Sometimes the latter are called conventions, as in the Geneva convention. And there can be charters to which member states subscribe – sometimes to create international organisations. There are many ways in which obligations in public international law can be created and agreed.

And then there is what is called customary international law – the international laws which are said to govern nation states regardless of whether the nation state agrees to those laws.

Taken together all these laws constitute (public) international law.

The problem is, however, very little of that law can or will ever be litigated.

But it is treated generally- that is, recognised – by many nation states as law nonetheless.

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One may have sympathy with the view, to adapt the famous aphorism attributed to Gandhi about western civilisation, that international law would be a good idea.

And generally, when nation states recognise it and regulate their conduct accordingly, it is a good thing as well as a good idea.

But what happens when a nation state – a superpower no less – goes rogue?

Where just because it can – like a dog licking itself – it breaches international law again and again, with barely a shrug?

One response is to say that such (mis)conduct discredits the notion of international law entirely – that the polite fiction of international law has been undermined by the (to say the least) impolite.

It is certainly the case that the current administration of that superpower – the United States – do not seem to care less about international law when it would restrain them.

(No doubt they would plead international law against another country if it suited them.)

But the notion of being in breach of international law is not the same as international law not existing.

International law is still there – it is just not being complied with.

International law is still there – it is just not capable of being enforced in these instances (at least not yet).

Other nations will recognise and abide by those laws even if the United States will not.

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An eminent professor may say international law is a matter of fiction, but unfortunately the many breaches of international law by the United States are a not a matter of fiction.

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The United States is a gangster state at home and a rogue state abroad

 

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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How the BBC censored the line that Trump is “the most openly corrupt president in American history”

30th November 2025

 

 

The British Broadcasting Corporation’s Reith Lectures are prestigious things, a highlight of the broadcasting year.

The 2025 lecturer is Rutger Bregman.

The first of this year’s lectures is available to listen here and there is a BBC transcript of that lecture here.

But there is something missing from the broadcast lecture and the transcript.

The broadcast lecture and the published transcript are not a complete and accurate record of what was actually said.

What is missing – edited out by the BBC – is a single line.

The line is that Donald Trump is “the most openly corrupt president in American history”.

As a special treat for those who are kind enough to pay for subscriptions for this blog, I have done a close look at those “legal reasons” from an English media law perspective.

You can read it on Substack here and on Patreon here.

If you financially support this blog by other means (eg PayPal), leave a comment below (which will not be published) and I can either add you as a complementary subscriber or send the post to your email address.

Trump v the BBC cont’d: an odd and desperate letter from the US media regulator

22nd November 2025

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Why the BBC is right not to pay damages to Trump

14th November 2025

By apologising, the broadcaster has taken the sting out of Trump’s excessive attack

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I have done a piece at the New Statesman where I used to be legal correspondent, you can read it here.

You can comment below.

The letter the BBC could send to Trump in reply to his $1bn claim

12th November 2025

Yesterday this blog offered a close reading of the letter Trump’s lawyers had sent to the British Broadcasting Corporation. As a follow-up, this is a letter that the BBC could send in reply.

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Dear Sirs

We refer to your letter.

As a preliminary point, it is accepted that the edited video in the Panorama programme was an error which should not have been made by the production company or approved by us for broadcast. We apologise for that error both to our viewers generally and to your client in particular. It was a failure of commissioning, journalistic and editorial standards. The programme has been removed from our iPlayer online platform and it will not be broadcast again with the error.

But failures of commissioning, journalistic and editorial standards do not by themselves give rise to a legal claim. We have looked carefully at your client’s claim as set out in your letter, and for the reasons below that claim is denied.

Your letter provides no evidence that your client was aware of the programme when it was broadcast or for at least a year afterwards. If your client maintains this claim please disclose evidence for our pre-action inspection that your client was aware of the broadcast before the press coverage of the last two weeks. Please also inform us when you were first instructed in respect of this complaint. In your letter you are anxious that we retain relevant documents, and so we presume you also have relevant documents about your client’s awareness of the programme. If you do have such evidence, please confirm that is the case.

The programme was not broadcast in the United States generally or Florida in particular. Our programmes on iPlayer are not available in the United States. Please provide any evidence for our pre-action inspection that the programme was watched by any person in your jurisdiction. Again, given the document retention requirements you set out in your letter, you presumably have retained such documents. And again, if you do have such evidence, please confirm this is the case.

You state in your letter three times that your client has suffered “overwhelming financial and reputational harm”. This is presumably on the Beetlejuice principle that if you say something three times it somehow appears. But your letter contains no evidence of either financial or reputational harm, let alone both. And your letter certainly fails to provide evidence of any harm being “overwhelming”. Given that your client was actually re-elected to the presidency within days of this programme being shown (in the United Kingdom but not the United States) there is no obvious harm that was suffered by your client.

If you do have any evidence of the alleged harm, either “overwhelming” or at all , and if your client continues with this claim, please provide that for our pre-action inspection. Please also provide evidence that the programme was “widely disseminated throughout various digital mediums, which have reached tens of millions of people worldwide”.

Talking of “tens of millions” you provided no basis whatsoever for the figure of one billion dollars. Please confirm whether this is a billion in an English or an American sense. As the figure seems arbitrary, please provide your workings out of the quantum. As it stands, the figure has no more meaning than a demand for one trillion dollars, or for one dollar.

Both your client and the BBC believe in the value of freedom of expression. Your client benefits from the constitutional and other legal protections for free speech in the United States. The BBC also should have the benefit of the same protections. We made a mistake for which we have apologised and undertaken not to broadcast again. But this should not be a matter for the courts.

Thank you for your attention to this matter.

Yours faithfully

[ ]

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A close look at Trump’s $1 billion claim against the BBC

11th November 2025

The litigation letter is weak, but his underlying practical position is not weak

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The headlines are eye-catching.

Other, similar front pages are here.

What is going on?

And what can be usefully said from a United Kingdom perspective about this threat by the President of the United States of America to sue our state broadcaster, the British Broadcasting Corporation?

This post is divided into three parts: (1) what is being complained about, (2) what can be said about the threat from a legal perspective, and (3) how this threat fits into he context of how President Trump uses civil litigation and threats of civil litigation.

In essence: what are the facts, what is the legal analysis, and what is the practical position.

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Let us begin.

The complaint is in respect of a Panorama programme broadcast by the BBC on 28 October 2024, which is well over a year ago.

The BBC page for the programmes is here:

You will see on that page that “this episode is not currently available”.

You will also see that dates of the broadcast:

Note that the broadcast dates are before Trump’s successful election on 5 November 2024.

And if you look carefully at that page you will also see that the programme was not made by the BBC, but by a third-party production company. This was thereby not made directly by the BBC news teams, though they would have presumably reviewed and approved the content before broadcast.

This distinction between production and broadcast is not unusual for such programmes.

There is also no evidence that the programme broadcasts were readily available in the United States:

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As regards the content complained of, the Guardian have provided this handy comparison, which you should now click on and watch:

It is a speech by President Trump on 6 January 2021.

In the Panorama edit two parts of the speech are put together so to give the impression that a single statement was made – effectively a succinct incitement to violence:

“We’re going to walk down to the Capitol and I’ll be there with you, and we fight. We fight like hell.”

In fact the first part – “We’re going to walk down to the Capitol…” – and the last part – “…and we fight. We fight like hell” – were at different parts of the same speech. Indeed, the two passages are about 54 minutes apart.

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From a journalistic and editorial perspective, the Panorama edit is misleading. It conveys the false impression that the two statements were said in one go. There is nothing in the Panorama edit to suggest any passage of time between the two utterances.

As such, from a journalistic and editorial perspective, the Panorama edit is indefensible and it should not have been broadcast.

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However, not all journalistic and editorial errors are breaches of the law.

For such an error to be unlawful as well as unfortunate something else is needed. A complainant needs to bring the error into the scope of the applicable law, which in England and Wales, for example, would the laws of libel and of malicious falsehood.

A journalistic or editorial error is not, in and of itself, actionable at law.

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So what is the legal complaint of President Trump and his legal representatives?

According to Sky the legal letter is as follows:

Re: Demand to Retract False And Defamatory Statements About The President of the United States of America

Dear All:

This law firm serves as litigation counsel for President Donald J Trump (hereinafter referred to as “President Trump”). Please direct all future correspondence relating to this matter to my attention. This correspondence serves as a demand under Florida Statute § 770.011 that you immediately retract the false, defamatory, disparaging, and inflammatory statements made about President Trump, which were published in a Panorama documentary that was fabricated and aired by the BBC.

Failure to comply will leave President Trump with no choice but to pursue any and all legal rights and remedies available to recover damages for the overwhelming financial and reputational harm that the BBC has caused him to suffer, with all rights and remedies being expressly reserved by President Trump.

In the Panorama documentary, titled “Trump: A Second Chance”, which was first broadcast on October 28, 2024 – a week before the 2024 United States presidential election – the BBC intentionally sought to completely mislead its viewers by splicing together three separate parts of President Trump’s speech to supporters on January 6, 2021.

The documentary showed President Trump telling supporters: “We’re gonna walk down to the Capitol and I’ll be there with you and we fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.”

This fabricated depiction of President Trump was false and defamatory given that President Trump’s actual and full remarks were: “We’re going to walk down, and I’ll be there with you, we’re going to walk down, we’re going to walk down any one of you but I think right here, we’re going to walk down to the Capitol and we’re going to cheer on our brave senators and congressman and women.”

Moreover, the BBC edited out President Trump saying, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Thus, as set forth in an internal whistleblower memorandum, the BBC’s segment maliciously made it appear that President Trump “[said] things [he] never actually said,” by editing together footage from the start of the speech with a separate quote early an hour later.

Due to their salacious nature, the fabricated statements that were aired by the BBC have been widely disseminated throughout various digital mediums, which have reached tens of millions of people worldwide. Consequently, the BBC has caused President Trump to suffer overwhelming financial and reputational harm.

 

A. Applicable law

Words are defamatory under Florida law when “they tend to subject one to hatred, distrust, ridicule, contempt or disgrace or tend to injure one in one’s business or profession.” Johnston v. Borders, 36 F.4th 1254, 1275 (11th Cir. 2022) (quoting Am. Airlines, Inc. v. Geddes, 960 So. 2d 830, 833 (Fla. 3d DCA 2007) (citation and quotation marks omitted)). Statements are defamatory if “the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts.” Johnston v. Borders, 36 F.4th 1254, 1275 (11th Cir. 2022) (quoting Jews for Jesus, 997 So. 2d at 1108).

Further, “where the speaker or writer neglects to provide the audience with an adequate factual foundation prior to engaging in the offending discourse, liability may arise.” See Zambrano v. Devanesan, 484 So. 2d 603, 607 (Fla. 4th DCA 1986).

Even if the BBC attempts to whitewash its conduct as simply an expression of its opinions, Florida law makes clear that such a defense will not absolve its liability. See Dershowitz v. Cable News Network, Inc., 541 F. Supp. 3d 1354, 1362 (S.D. Fla. 2021); see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990) (”Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications.”) (emphasis added); see also Eastern Air Lines, Inc. v. Gellert, 438 So. 2d 923, 927 (Fla. 3d DCA 1983) (“[A] statement that although ostensibly in the form of an opinion ‘implies the allegation of undisclosed defamatory facts as the basis for the opinion’ is actionable.”) (emphasis added).

Consequently, the BBC lacks any viable defense to the overwhelming reputational and financial harm it has caused President Trump to suffer.

 

B. Demand

The above-referenced false, defamatory, malicious, disparaging, and inflammatory statements were published to deliberately denigrate President Trump. The timing of the fabricated documentary is evident.

The BBC’s reckless disregard for the truth underscores the actual malice behind the decision to publish the wrongful content, given the plain falsity of the statements.

Accordingly, President Trump hereby demands that you:

1) immediately issue a full and fair retraction of the documentary and any and all other false, defamatory, disparaging, misleading, and inflammatory statements about President Trump in as conspicuous a manner as they were originally published;

2) immediately issue an apology for the false, defamatory, disparaging, misleading, and inflammatory statements about President Trump; and

3) appropriately compensate President Trump for the harm caused.

Moreover, please allow this letter to serve as notice to you, to your affiliated entities, subsidiaries, to all of their employees, and any other person acting on behalf of or in concert with the BBC, to preserve any and all evidence related in any way to the above-mentioned malicious, false, and defamatory statements the BBC published, and any other statements that the BBC has published regarding President Trump.

By way of this letter, the BBC is hereby directed not to destroy, conceal, or alter any paper or electronic files, physical evidence, and/or other data relating in any way, no matter how remote, to your false claims regarding President Trump, and/or the circumstances leading to their dissemination, including, but not limited to:

1) all communications between you and any third party in any way related to your wrongful claims regarding President Trump;

2) all sources for your false claims regarding President Trump;

3) any and all documents and data referring to, reflecting, or relating to communications between you and any such third parties or sources regarding your false claims regarding President Trump; and

4) any and all documents in any way related to your false claims regarding President Trump. This includes any information alleged to be protected by Florida Statute § 90.5015. Monarch Air Group, LLC v. Journalism Dev. Network, Inc., No. 23-CV-61256, 2025 WL 445491, at *1 (S.D. Fla. Feb. 10, 2025) (interpreting Fla. Stat. § 90.5015 and explaining that the Eleventh Circuit “recognizes a qualified privilege for journalists, allowing them to resist compelled disclosure of their professional news gathering efforts. This privilege shields reporters in both criminal and civil proceedings.”) (quoting United States v. Capers, 708 F.3d 1286, 1303 (11th Cir. 2013)).

I understand that many records and files are maintained electronically. However, this letter specifically requests that all paper and hard copy originals be maintained and preserved in their original format.

By the same token, electronic documents and the storage media on which they reside may contain relevant, discoverable information beyond that which may be found in printed documents. Therefore, even where a paper copy exists and has been preserved, please preserve and maintain all electronically stored documents in their original native format, including all metadata.

This preservation demand specifically encompasses any and all electronic documents, including but not limited to, all word-processed files, emails, spreadsheets, all databases, log files, and any other electronically stored and/or generated documents or files.

If the BBC does not comply with the above by November 14, 2025, at 5:00 p.m. EST, President Trump will be left with no alternative but to enforce his legal and equitable rights, all of which are expressly reserved and are not waived, including by filing legal action for no less than $1,000,000,000 (One Billion Dollars) in damages.

The BBC is on notice.

PLEASE GOVERN YOURSELF ACCORDINGLY.

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(That last term in block capitals is a feature of US litigation letters.)

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There some rather odd things about this legal threat.

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First, the letter states in three places about the the reputational harm caused to Trump:

“…the BBC lacks any viable defense to the overwhelming reputational and financial harm it has caused President Trump to suffer”

“…the overwhelming financial and reputational harm that the BBC has caused him to suffer”

“…the BBC has caused President Trump to suffer overwhelming financial and reputational harm.”

The Panorama programme was broadcast in the United Kingdom days before Trump was re-elected in the United States.

It is impossible to see how Trump being re-elected is consistent with him suffering any harm by the broadcast, let alone “overwhelming financial and reputational harm”.

And if you look closely at the letter, no harm is even shown – let alone “overwhelming financial and reputational harm”.

Instead harm is merely asserted – rather than demonstrated.

As such this seems a weak litigation letter.

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The failure by this letter to show harm then feeds into the threat that Trump may sue for “no less than $1,000,000,000 (One Billion Dollars) in damages.”

Because no harm is shown, this figure is arbitrary.

The letter may have said one dollar or a trillion dollars and would have made as much rational sense.

It is a preposterous demand.

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The letter is also alert to the inconvenient truth that the programme was not actually broadcast in the United States. This is is why the following passage is included:

“…the fabricated statements that were aired by the BBC have been widely disseminated throughout various digital mediums, which have reached tens of millions of people worldwide.”

There is no evidence in the letter that anyone in the United States, let alone Florida, either saw the programme or even know of its existence.

Interestingly, in the demands for document retention, the letter fails to even ask the BBC for evidence of the extent of downloads and broadcasts of the programme. This is a strange omission, if this was a serious legal threat.

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I am not an American lawyer, and so I can offer no view on the merits of this legal threat under the laws of Florida. Even what can seem weak litigation letters may have traction in other jurisdictions.

But if this threat was made under the laws of England and Wales (Scotland and Northern Ireland have their own legal systems) one would say that this claim also had its weaknesses over here.

First, it is would be out of time: there is a one year limitation period.

Second: the claimant would have to show – and not merely assert – serious damage to their reputation. The letter does not do so.

And third: the ceiling for damages claims for libel in England and Wales is about £300,000 – and any award over £100,000 is rare.

This rules out one million pound claims, let alone one billion pound claims.

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Would the BBC have any defence in a hypothetical case brought in England, regardless of the above defences?

A straight defence of truth would not be available – Trump did not say what the Panorama edit had him saying, at least not in one go.

However, the truth defence also covers things which are “substantially” true. This is a riskier defence to mount, but if the BBC did mount it would be along the lines of Trump did effectively promote an insurrection, even if he did not say in one go what was said in the Panorama edit.

Here the BBC could point to findings of Congressional committees and the terms of the impeachment of Trump passed by the House of Representatives (even though he was not convicted by the Senate). The BBC could also say that the 54 minute gap between the statements did not necessarily mean that the latter statement – “fight like hell” – was not an incitement.

An English court would also have regard to the programme as a whole, and also to Trump’s speech as a whole.

Whether Trump was an insurrectionist would presumably not be something Trump would want to have decided by an English court on the basis of the civil standard of proof – the balance of probabilities.

On the other hand, it was a bad journalistic and editorial fail, and so the BBC would not relish this being decided by the London high court either.

On the face of it, if this was litigated at the high court in London (and assuming limitation was not a problem, and the claimant was able to show serious damage) one could see it going either way, though one would expect a successful claim to be worth only about £30,000.

*

Stepping back, what we have here is an overstated claim on a somewhat artificial basis. Until recent news reports, one suspects neither Trump nor anyone else in the US even knew about the Panorama programme.

And given he was re-elected president (in the USA) days after broadcast (in the UK), any claim for damages would seem to fall flat.

But.

The facts of the Panorama edit are ugly for the BBC. It was a bad mistake, and so it would not be one where a confident defence could be mounted.

And this, in turn, means Trump has leverage.

Trump loves leverage.

For Trump, civil litigation is a form of deal-making – the promotion of his political and business interests by other means.

One should not approach his legal manoeuvres as if they are cases that will go all the way. They are skirmishes intended to force a deal, a compromise, a back-down by the other side.

A confident BBC would admit a mistake and move on without admitting legal liability.

But we do not have a confident BBC.

We have a media corporation lacking confidence.

Trump loves media corporations -and other institutions – that lack confidence.

And although one would hope the BBC would mount a complete defence to any claim being brought in a jurisdiction where a programme was not even broadcast and where no damage has been shown, one can also imagine the BBC seeking to make amends including by means of compensation (of licence fee payers money) so as to avoid litigation.

The litigation letter may be weak, but Trump’s underlying practical position is strong: the BBC made a mistake, and he knows how to take full advantage of it.

So putting aside the theatrics of a bombastic letter with its senseless $1 billion claim, there is a power play here which Trump has done many times before.

And the real mistake of the BBC (and the production company) was opening itself up to such a play of power.

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The one-way constitution

29th October 2025

Some say Trump and his circle are disregarding the constitution – but that is only half right

We have a tendency to think in binaries – and this is certainly true about when we think about constitutions and constitutionalism.

We will take a view on whether a politician is acting either within a constitution or not.

And if not, we may use emphatic phrases with redundant adverbs: “[A] is completely disregarding the constitution” or “[B] is totally ignoring the constitution” – and so on.

But with the case of Trump and others, this is not correct, “completely” or “totally” or otherwise.

For in practice Trump keen on the constitutional protections that protect him and confer on him powers, and his various supporters are keen on the constitutional provisions that protect them and give them powers.

The constitution is not disregarded or ignored when it is to their advantage.

When it suits them, the constitution is very much intact.

They just do not want those elements of the constitution that check and balance them, or which confer rights on those they want to attack

It is one-way constitutionalism.

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Over at Prospect (click here) my latest “weekly constitutional” post applies this general observation to a couple of concrete examples: about how the Trump-allied Speaker of the House of Representatives is using his powers to not swear in a political opponent over a month after she was elected, and how the conservative majority on the Supreme Court are using a “shadow docket” to determine cases in the government’s favour without full hearings.

But there are many other examples – consider Trump’s use of the pardon power to circumvent and frustrate accountability in the criminal justice system, or how is using executive orders to usurp the proper role of Congress (with Congress nodding-along).

All these examples are, in their different ways, uses and abuses of powers and rights allocated by the constitution.

If Trump and his allies were genuinely disregarding the constitution they would not be able to do these things.

Instead what they are doing is gaming the constitution.

A constitution for me, but not for thee.

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As such, they are adopting a similar approach to how they deal with other matters of first principle.

Free speech for me, but not for thee.

Law and order for thee, but not for me.

And so on.

As someone once described conservatism, though it also is wider application:

Conservatism consists of exactly one proposition, to wit:

There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

There is nothing more or else to it, and there never has been, in any place or time.

This is formal power using a one-way valve.

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If full, two-way constitutionalism is to be restored in the United States and elsewhere it will not be a case of building up from ground zero.

It will be a far more difficult exercise stabilising and remedying a structure which has half-fallen down – and against the unwilling occupants of the still-stable bits.

Restoring constitutionalism will be a big job – and it will be more demanding than, say, having a revolution and starting again.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.