Should Kerry sue the Swift Vets?

Kenneth Baer thinks so.

My first reaction reading this article was "stupid, stupid idea.  Crazy."  Baer points out:

Doing so [suing] would magnify the impact of the charges made in the ads, which as of now are only playing in seven small media markets, and keep them in the news for the duration of the campaign. It would also derail the campaign from its message, underscore the litigious history of his vice presidential pick, and open the candidate up to a possibly invasive subpoena.

Not only that, but Baer probably underestimates the frothing such a suit would cause on the right, frothing that would quickly make its way quickly onto CNN and MSNBC.  Freepers are already making jokes all over the Internet about how Kerry & Edwards' War on Terror will amount to "suing the terrorists for bodily harm."  The right would go absolutely wild if Kerry were to initiate a suit.

But then I read on.  Baer (not a lawyer) thinks that precedent and the general sloppiness of the SBVT smear campaign could make for legal vulnerabilities:

Gunner's Mate Van O'Dell says that: "John Kerry lied to get his Bronze Star. I know, I was there, I saw what happened." O'Dell did not serve on Kerry's boat, but was on another boat in his division. O'Dell claims to have witnessed the entire incident in which Kerry won his Bronze Star. Yet, his account does not show up in any official Naval documents--from the spot reports filed immediately after the incident that detail damage to two boats, including Kerry's, and Kerry's injury report to the eyewitness accounts of Jim Rassman, the man who Kerry pulled out of the river. Either O'Dell is right, and Rassman, Kerry, and the US Navy are wrong--or O'Dell has a big legal problem on his hands.

And of course there's the Corsi/Freeper business (note: there's already an excellent diary about this in the recommendeds with more links) and George Elliott's laughably on-again off again on again charges about Kerry's service.  And there's O'Neill's republican history and the fact that not one of these guys ever actually formally challenged Kerry's medals with the Navy in real time...

But here's the crux of Baer's -- a veteran of the Clinton White House's -- argument: this ad is just the beginning and is a taste of things to come if (when) Kerry wins in November:

Since [1992], the political atmosphere has gotten only more toxic, and the attacks more ferocious (it still amazes me that President Bush mocks and derides his opponent by name and from a podium with the presidential seal on it). In an environment where the president and his allies believe that he is on a divine mission, the right will stop at nothing to win this race.

That is why if Bush should lose this November, there won't be any honeymoon for Kerry His first few months in office will look like the last years of the Clinton presidency: congressional inquiries, constant talk radio trash-talking, and book deals for anyone with a charge to make. Simply, Kerry can't afford to let the SBVT charges go unanswered if he wants to govern effectively.

Moreover:

"...[A] lawsuit will send a message that there will be serious repercussions for anyone who wants to fund or appear in an ad that is patently false. Discovery procedures could lift the curtain of anonymity on those funding these ads, potentially compelling them to disclose their financial and political interests and connections. In addition, a lawsuit will have an equally chilling effect on the political consultants who make these ads. Even the largest political ad-makers can't afford costly litigation; from a financial perspective, getting involved with groups like SBVT would be too big a risk no matter a consultant's politics.

So will the media continue to properly scrutinize this Corzi-O'Neill slander-fest?  Will we be seeing Kerry Murder Lists being offered up on Hardball in two years time?  If Josh Marshall is right, the answer to the first question is likely "no": the media -- particularly cable news -- will play the ad and the book "objectively", reporting the "news" of its effect on "swing voters".  And its effectiveness, could well lead to a "yes" answer to question two.

And of course, laying the groundwork of allegations and sowing general seeds of doubt about Kerry's tour of duty is especially useful for the Right because it sets up a say-anything environment in dealing with long-ago issues and events that are hard to formally analyze, while treading on emotionally sensitive turf for both the right and the anti-war left.  As president, Kerry will have a much harder time than he does as a candidate dealing with such controversies. Allegations like those being made by the Swifties (not to mention twits from the other side of the spectrum like Cockburn and St Clair -- if you read that, make sure to also read Robert Sam Anson's excellent rebuttal) have the potential to resonate both with conservatives who believe Kerry's post-war protesting defamed the military, and with liberals who might be put off by the allegations that Kerry, as a Captain, was quick-on-the-trigger.

Personally, I still think Baer is wrong: a lawsuit is a bad idea, that it would backfire in the campaign and it has the further potential to cripple Kerry's presidency if he eventually lost in court.  But I'm not sure that it's a crazy idea.

Thoughts?