Opinion | Is a Mystery Donor Funding Sarah Palin’s crusade against the New York Times?

Sarah Palin’s libel suit against the New York Times, filed four-and-half years ago, was decided against her two ways this week. The jury rejected her claim, and the judge, acting during jury deliberations, dismissed the case, saying Palin’s lawyers had failed to provide enough evidence for the jury to consider.

But the matter is far from over. Palin has signaled that she might exercise her right to appeal, which means the case could have an afterlife of months and, who knows, maybe longer. Perhaps as Palin’s attorneys prepare their briefs and the press corps reassembles the legal challenge, we’ll get a proper idea of why she sued in the first place — because nothing in her three-and-a-half hours on the stand in the one-week trial provided much of a clue. Substitute gym teachers put more industry in their work than Palin did in her testimony. What gives in a case that may have already cost Palin’s side up to $2 million in legal fees?

The Palin case looked like a long shot from the beginning, which is why the judge tossed it originally in 2017. Libel law presents a higher standard of proof for public figures like Palin, and the judge ruled that she had failed to show that the Times editorial, which published an egregiously false charge against her, had done so maliciously. But when an appeals court reinstated Palin’s case, she got her time before a judge and jury.

If you listened to the livestream of Palin’s testimony or read one of the accounts by the pack of journalists who covered it, you can’t help but notice Palin’s lackadaisical performance. In most cases — and certainly, in this one — plaintiff witnesses are “coached“ prior to taking the stand. A witness needs not a script, lest they sound too manufactured, but they need an outline, Law360 advises. They need to keep from fidgeting as testimony might take hours. To convince a jury, they need to seem credible, to stay on point and to be prepared for tough cross-examination. But Palin, an accomplished political speaker and former broadcaster, inexplicably bombed.

Slate’s Seth Stevenson’s report from the court described her as starting out strong but then faltering, spinning off those “looping, meaningless sentences” she’s noted for. Reuters reporters Jody Godoy and Jonathan Stemple found that she “struggled to provide specific examples about how the editorial harmed her reputation.” Washington Post media columnist Erik Wemple found Palin lacking, too, in a headline that reads, “Sarah Palin craters in her testimony in New York Times defamation case.” NPR reporter David Folkenflik wrote, “Palin was a less-than-commanding witness under cross-examination.” When the Times' defense attorney brought up Palin’s guest appearance on The Masked Singer, she said "objection,” which prompted courtroom laughter. POLITICO reported that when asked by the Times’ attorney why she was playing at her lawyer’s job, Palin responded, “I just thought it was funny.”

Of the many venues suitable for joke-cracking, a courtroom where you’re the plaintiff in a libel suit can’t rank in the top ten. Had her counsel not warned her against playing to the cheap seats? Had he not urged her to prepare better than she apparently did? She could have sung an aria about all the pain the Times editorial, which falsely connected her to the 2011 shooting of Arizona Democratic Rep. Gabrielle Giffords, had caused her. But she didn’t.

Could it be that she’s just not that personally invested in the case? Court-watchers noted from the outset that Palin’s lawyers were the same team that helped win Hulk Hogan a $140 million jury verdict against Gawker and, as was later revealed, the case had been financed by billionaire Peter Thiel. Charles Harder, the superstar attorney who worked on the Hogan case and on others for Trump interests, including one against the New York Times, attended the Palin trial, and Slate’s Stevenson interviewed him, asking him if he knew who was paying the legal bills. “He said he didn’t know,” Stevenson wrote. Why was Harder attending the trial and taking notes if he wasn’t working for Palin? “I’m just here to observe and learn.” The Daily Mail has asked Palin’s attorneys who paid her legal fees but has yet to get a response. (Nota bene: Harder sued the Daily Mail at the behest of Melania Trump in 2016 when it published a since-retracted story about her. The publication later settled for unspecified damages.)

POLITICO asked a Thiel representative for comment on speculation that he’s funding the Palin suit, but no response was received.

Nobody can criticize Palin for passing the hat to finance her case — if that’s what she did. Lawsuits are expensive and crowdfunding them without naming the funders is a time-honored practice — civil liberties groups do it routinely — and the practice is especially praiseworthy when the litigation is of the “impact” variety, designed to change the law and protect rights. But as the Gawker case demonstrated, such lawsuits can also be seen as punitive exercises, financed by a third party as payback. Thiel, who had been outed by a Gawker site, denied this was his motive for financing the Gawker piece. “It’s less about revenge and more about specific deterrence,” Thiel told the New York Times in 2016.

If Palin’s attorneys respond to the Daily Mail question about who paid the former governor’s tab, or if Thiel ever makes his own announcement, we’ll have a clearer lens on what the main goal of her lawsuit was. Was she just pursuing her day in court? Or was she looking to establish a legal precedent that would make libel cases easier to win (a move Donald Trump favors)? Or was her intention to punish the New York Times with a big defense bill as a warning of more to come? Or all three? Palin’s pallid performance and the unanswered question about her lawsuit’s funding invite our speculation. Libel suits are always big news, but the identity of their financiers could turn out to be the bigger story.

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