James MacDonald’s defamation lawsuit against his former confidant and friend, WLS-AM Radio Host Mancow Muller, is “no more than a vindictive fishing expedition” to relieve MacDonald of his “new financial predicament” and “maintain (MacDonald’s) lavish lifestyle.”
That’s according to a motion to dismiss the lawsuit and a memorandum filed yesterday by Muller’s lawyer, Michael J. Young.
MacDonald, a disgraced celebrity pastor, brought the lawsuit last December. In it, he accused Muller of fabricating stories about MacDonald being a “con man,” scheming to murder “rivals” and to plant “kiddie porn” on Muller’s computer.
The lawsuit also claimed that Muller had violated Illinois eavesdropping laws when he aired portions of a vulgar hot-mic recording of MacDonald joking about kiddie porn and disparaging me and other Christian media figures.
In the memorandum filed Friday, Young argues that MacDonald’s lawsuit is “frivolous” and that his claims against Muller do not withstand legal scrutiny.
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“Muller, a media member, was within his rights and obligations to hold Plaintiff up to public scrutiny, to share disturbing information about Plaintiff as he saw fit, and air the tape of Plaintiff’s own derogatory comments,” Young writes. “Muller’s opinions and statements may have been upsetting but were protected speech, privileged, or substantially true.”
Young also argues that any real “damage” MacDonald suffered recently was “the result of being exposed after months and years of investigative journalism, culminating in the explosive World Magazine article published in December 2018.” He further argues that the lawsuit is simply an attempt to “search for deep pockets to relieve Plaintiff of his new financial troubles.”
Prior to being fired by Harvest Bible Chapel in February 2019, MacDonald was making millions in salary, as well as drawing from private checking accounts he used for personal expenses like hunting trips, motorcycles, and entertainment.
In March, MacDonald’s $1.9 million home in the Chicago suburbs was listed for sale and MacDonald appeared to be delinquent on property tax payments on an adjacent five-acre plot he owns. Videos MacDonald recently posted online show him living inside what appears to be a motor home.
Lawyer: Muller’s Comments Not Defamation Because They’re True
Much of Young’s basis for his motion to dismiss is that Muller’s statements are true.
For example, Muller said on air that he believed MacDonald kept secret books at Harvest and that there might be racketeering claims against MacDonald and the church.
Young wrote that these allegations were substantiated in the World Magazine article, which included claims that part of the church’s budget is hidden. “The article also spoke of dishonest business dealings by MacDonald and the church, unethical co-mingling of funds, and unaccounted for church debts in excess of forty-million dollars,” Young wrote.
In addition, Young noted that a forensic audit by Harvest “concluded that there was a ‘massive corporate governance failure’ that was primarily due to MacDonald, numerous potential tax violations, and secret accounts.”
Similarly, Young argued that Muller’s claim that MacDonald wanted to plant “kiddie porn” on Muller’s computer was corroborated by MacDonald himself on the hot mic recording Muller aired.
“(I)mmediately after Muller made the complained of comments, (Muller) shared audiotape of Plaintiff making statement to others about putting child pornography on the computer of one of (MacDonald’s) critics,” Young wrote. “Plaintiff cannot now allege that Muller’s commentary regarding MacDonald’s criminal intentions to destroy someone’s reputation and credibility by planting child porn on a computer is a ‘false fact.’”
“Plaintiff cannot now allege that Muller’s commentary regarding MacDonald’s criminal intentions to destroy someone’s reputation and credibility by planting child porn on a computer is a ‘false fact.’”
In addition, in an affidavit included with the motion, Muller gives more detail about MacDonald’s alleged child porn plans, and the events leading up to it.
Muller recounts that in January 2019, after reading multiple accounts of MacDonald’s corruption, Muller began to “re-evaluate several private conversations I had had with James MacDonald as late as December 2018.”
Some of these private conversations allegedly involved child porn.
“(On) at least three occasions,” Muller said, “MacDonald suggested to me that he wanted to plant child porn on the computer of his critics. He even asked me if I could find someone to do it.”
Muller added, “Other conversations with MacDonald haunted me even more”—ones about hiring a hitman.
Murder for Hire?
Perhaps the most explosive comment that Muller aired about MacDonald was that “this great man of God asked me to find a hitman.” Muller also broadcast an interview in which an anonymous source (later identified as former Harvest deacon Emmanuel Bucur) claimed that MacDonald had once asked him to kill MacDonald’s son-in-law.
In his affidavit, Muller gives details concerning the alleged murder-for-hire.
“On three separate occasions, MacDonald asked if I could find him a hitman,” Mancow wrote. “Two of these occasions occurred at Camp Harvest and the other time I was speaking to MacDonald on the telephone.”
“On three separate occasions, MacDonald asked if I could find him a hitman. Two of these occasions occurred at Camp Harvest and the other time I was speaking to MacDonald on the telephone.”
Muller added that in early January 2019, “still rattled by MacDonald’s 2018 request that I find him a hitman,” he reached out to a longtime friend and pastor, Nathan Murray, “sharing that I was ‘freaked out’ by the requests.”
In the motion memorandum, Young argues that these murder-for-hire claims about MacDonald are true, as well. And he notes that even before the broadcast in which the murder-for-hire allegations was aired, I “investigated both Muller’s and Burcur’s claims and found corroborating witnesses who confirmed both men’s stories.”
These included Pastor Murray, who confirmed his conversation with Muller about MacDonald’s alleged request for a hitman. It also included Steve Lupella, a friend of Bucur’s who had confirmed that Bucur had told him that MacDonald had shared the murder-for-hire plot with him.
Did Mancow Violate Eavesdropping Laws?
One of the interesting aspects of MacDonald’s lawsuit, with free speech implications, is MacDonald’s assertion that Muller violated the Illinois Eavesdropping Act when he broadcast MacDonald’s hot-mic recording.
As Young notes in the memorandum, a person commits eavesdropping when he knowingly uses or discloses a recording that he “reasonably should know was obtained from a private conversation without the consent of all the parties to that conversation.”
According to MacDonald’s own amended complaint, the hot-mic recording that Muller aired was recorded while MacDonald was with several parties in a recording booth at Harvest Bible Chapel. This recording was then delivered anonymously to Muller at his home in mid-February 2019, according to Muller’s affidavit.
In his memorandum, Young argued that MacDonald’s expectation of privacy was “unreasonable,” given that the recording occurred “in a public building, in a room designed for recordings, in the presence of several people, and while on a speakerphone.”
Beyond that, Young said U.S. Supreme Court precedent supports Muller’s First Amendment Right to broadcast a secret recording, provided the recording is about a matter of public interest.
For example, in Bartnicki v. Vopper, an unknown party recorded a private cell phone conversation between a union leader and the union negotiator during a contentious school board/union negotiation. That secret recording was then passed to a radio personality who broadcast it.
“To find against Muller in this case would have a chilling effect on the First Amendment.”
The Supreme Court ruled in favor of the radio personality, noting that “privacy concerns give way when balanced against the interest in publishing matters of public importance.”
“Therefore, even if the tape was made in violation of Illinois’ eavesdropping statute, and even if Muller’s airing of the tape violated the Illinois eavesdropping statute, the Supreme Court makes clear that Muller’s actions are protected under the First Amendment,” Young wrote.
“To find against Muller in this case would have a chilling effect on the First Amendment. Doing so would also go against the public policy of protecting free speech and allowing anonymous sources to provide important information to the media.”
Below, I’ve posted all the documents filed Friday in this case.
UPDATE: In response to Young’s motion, MacDonald’s attorney, Phil Zisook, said that Young was “several months late” to respond to the lawsuit and that Young’s 42-page response exceeded the court’s 15-page limit. Zisook added that he is seeking to have Young disqualified because Young has acted as MacDonald’s attorney in the past.
(Young actually represented MacDonald and Harvest in their defamation lawsuit against me and four others, which MacDonald and Harvest eventually dropped and then reimbursed me and the other defendants for our court costs. According to Muller, he had recommended Young to MacDonald back when Muller and MacDonald were friends.)
Young responded to Zisook’s allegations, saying that Young had filed a motion on April 9, seeking an additional 45 days to answer MacDonald’s amended complaint. (April 9 was the date Muller was required to file an answer or otherwise plead.) Due to COVID-19, the motion for additional time was scheduled but has not yet been heard. Young added that Zisook has not filed a motion for default.
Concerning the page limit, Young said that page limits on briefs “are summarily waived upon request” and are a “non issue.”
Lastly, regarding the conflict of interest, Young said that Zisook had filed a motion to have Young disqualified. Young said he will be responding to that motion within the next 14 days.
Young added: “What is most interesting to us is that MacDonald’s attorney’s response completely fails to address the substance of Mancow’s Motion to Dismiss, pointing only to perceived procedural issues.”
The two sides are scheduled to appear in court on June 12. Young has filed a demand for trial by jury. (Both the jury demand and motion for additional time are included at the end of this post.)
Motion to Dismiss:5.15.20 1 MULLER MT TO DISMISS
Memorandum in Support of Motion to Dismiss & Muller’s Affidavit (at the end):5_15_20 MEMO FOR MOTION TO DISMISS
Exhibits 1 to 11:5.15.20 1 EXHIBITS 1 to 11
Exhibits 12-22:5.15.20 2 EXHIBITS 12 to 22