Nebraska Republican Senate primary candidate Shane Osborn is under attack for helping create a fake Navy memo exonerating his decision to land a damaged spy plane in China rather than crashing it into the ocean, and now he’s sicked his lawyers on the TV stations running a negative ad about the issue.
Osborn’s legal complaint is that a television ad from the 60 Plus Association says he “created” the fake memo. The memo was written by an unknown friend of Osborn’s who is still in the Navy. The friend authored it at the request of John Comerford, a close friend of Osborn’s who served with him in Navy.
Osborn told the Omaha World-Herald that he asked Comerford to “go back and get the instructions (for such missions) to show that what we did was right.” In other words, Osborn claims he asked Comerford to help him vindicate his decision, and Comerford asked another person in the Navy to write a memo that that person did not authorize through the Navy’s official channels.
The Aug. 8 memo is on official Navy letterhead and says in 2001, when the crash landing occurred, there were no specific rules against a Navy pilot crash landing in China. Osborn was given an award after the Chinese released him and 23 others who were on board the spy plane after an intense period of interrogation. Sen. John McCain (R-AZ) has defended Osborn’s actions, but other veterans have said he should have “ditched” the plane in the ocean.
The 60 Plus Association ad, titled “Dishonorable,” features several veterans questioning the fabrication of the memorandum in question, with one veteran wondering why he would “put his friend’s career in jeopardy,” and another concluding that it shows “a total lack of character.”
In a letter sent to television stations airing the ad, obtained by Breitbart News, attorney Patrick Borchers warned networks that the ad in question “contains materially false statements concerning Former Lt. Cmdr. Osborn’s service in the Navy and subsequent actions.”
“Your station has a legal duty ‘to protect the public from false, misleading or deceptive advertising,'” he writes, citing a 1961 court case, and adds that “broadcasting stations are not protected from legal liability for airing false and misleading advertisements,” suggesting that the Osborn campaign may take legal action against stations that air the ad.
Borchers, a longtime Osborn supporter who has defended Osborn on his personal blog, confirms to Breitbart News that he sent the letter “as legal counsel to Osborn for Senate.” He clarified via email that “the letter says that it is written ‘without prejudice’ to whatever avenues there may be, meaning simply that Osborn for Senate and Mr. Osborn were not waiving any legal rights by sending the letter.”
The Osborn campaign has roundly condemned the ad. Osborn campaign manager Bill Novotny responded to the ad by blaming opponent Ben Sasse. “Ben Sasse is not a veteran, and has never risked his life for the sake of our great nation. Sasse and his Washington allies should be ashamed of themselves,” he said in a statement. Roger P. Lempke, Chairman of the Veterans for Shane coalition, echoed this sentiment: “Let’s be clear, this smear is owned by one person, Ben Sasse, a man who has never stood in defense of our nation, and he needs to answer for it.” Neither statement mentioned the 60 Plus Association.
In the time since the letter was sent, The Hill reports that two television stations have removed the ad from circulation.
Jason Torchinsky, counsel to the 60 Plus Association, sent a response letter to television stations in defense of the ad and obtained by Breitbart News. “Mr. Osborn… has no right to suppress speech that he determines is politically damaging,” Torchinsky writes, affirming that “the advertisement at issue is accurate, correct, and fully documented, and it is only Mr. Borchers’ letter that makes false assertions.”
Torchinsky said Osborn did “create” the memo because he was involved in its creation. “It is evident that Mr. Osborn, Mr. Comerford, and the unnamed author of the memorandum were all involved in that memorandum’s creation,” he said.
Borchers responded in a third letter, in which he argues that Torchinsky’s position would be akin to saying “someone who said to J.K. Rowling over lunch one day: ‘Gee, wouldn’t it be nice if there were chapter books about young adults with magical powers’ would be a ‘creator’ of the Harry Potter series of books.”
Observers of Nebraska politics question whether resorting to legal tactics will help quell the growing concern that Osborn used connections in the military to embellish his record. A Nebraska strategist closely following the race describes Osborn’s claim to Breitbart News as “curious:” “He already apologized for faking the memo, so attacking 60 Plus is perplexing. And today he’s basically saying, ‘I didn’t personally write the memo. I just got someone else to write the memo.’ It’s a remarkable thing for someone asking for the public trust to say.”
The 60 Plus Association, meanwhile, continues to support the ad. In a statement to Breitbart News, the organization noted that it has been “in touch with two outlets who have asked for clarification” and that the ad is still running in Nebraska. “The bottom line is we stand by our ad,” the statement notes, “It’s a little cute by half for Osborn to suggest he had nothing to do with this memo’s creation, especially when it’s a matter of record that he asked a friend in the Pentagon to obtain it for him.”
Neither the Sasse campaign nor the Osborn campaign commented to Breitbart News on the matter.