By Ken Silverstein 

September 7, 2021 - Don Blankenship is pugnacious. He has battled federal prosecutors. And he just delivered a staggering blow to Donald Trump, Jr., who tried to upend the former coal baron’s 2018 bid for a U.S. Senate seat — a plan that went offtrack when Junior falsely tweeted that Blankenship was a “felon.” Blankenship sued for defamation and a U.S. federal judge just decided that the case can go forward. 

Blankenship was convicted of a single misdemeanor for violating federal mine safety laws. He was found not guilty on two felony counts of securities fraud and of making false statements. Any search of the internet would reveal this. And thus the judge said that the public could infer that Junior knowingly sought to destroy Blankenship’s reputation. Junior, who argued it was a mistake, left up the incriminating tweets long after they were originally posted. 

This is a huge win for Blankenship, reached just before the Labor Day weekend. This dispute won’t settle. The former coal baron had been accused by federal prosecutors of crimes that could have landed him in prison for 30-plus years. But prosecutors told this writer that he never wanted to negotiate. In the end, he was convicted of the one misdemeanor that got him a year in prison. During that time, he authored a booklet called An American Political Prisoner. 

Blankenship’s “allegations are sufficient at this stage to create a ‘plausible inference’ that Trump, Jr. published his tweet with knowledge of its falsity,” writes Judge John Copenhaver, a federal judge for the U.S. District Court for the Southern District of West Virginia. “Trump, Jr.’s remaining arguments fail because labeling (Blankenship) a felon can constitute a provably false assertion of fact.”

Legally, defamation is to knowingly make a false statement that can damage someone’s reputation. And if it is in written form, it is called “libel.” To prove defamation, plaintiffs who are public officials — Blankenship was a candidate for the U.S. Senate — must have “clear and convincing evidence.” And they must show that the statements were made with “actual malice.” That is the standard set by New York Times v. Sullivan, which is a tough hurdle. In West Virginia, “actual malice” can be proven by circumstantial evidence. 

Some background: Blankenship’s trial ended in December 2015 and he was sentenced in April 2016. He served his time. In January 2018, he announced his candidacy for the U.S. Senate from the state of West Virginia. In the run-up to the election, the coal exec had been gathering steam and some speculated that Blankenship could win the Republican nomination. 

Enter Trump, Jr., a ne'er do well who insinuated that Blankenship was a “felon” — words for which he never corrected or apologized: Blankenship says that this act caused him “enormous damages” that also led to his defeat. A statement is considered “defamatory” if it harms someone’s reputation — meaning it lowers their value in the eyes of a community or it prevents professional associations. 

“Regardless of whatever reputation (Blankenship) may have had in West Virginia, the complaint plausibly alleges that Trump, Jr.’s tweets lowered (Blankenship’s) reputation in communities both within the state and outside the state, particularly since the plaintiff was in a campaign for federal political office,” Judge Copenhaver writes in his order. 

No Settlement 

The criminal case against Blankenship was multifaceted. But the gist of it had been whether the former coal baron skimped on safety measures in favor of increasing productivity and profits. Blankenship remains convinced of his innocence: hiring more miners to avert “non-willful” mine safety violations would not have prevented the deaths of 29 miners, he wrote in his booklet. 

He had pointed to a different coal mine, which he said most resembles that of the ill-fated Upper Big Branch facility. The “Harris Mine,” he noted, had 35 more miners but received 250 more violations than did Upper Big Branch.

The prosecution says that it just followed the facts and that accountability had been paramount: between January 2008 and April 2010, the coal mine in question had received 835 citations for such infractions as poor ventilation and excessive coal dust. At the time of the accident in April 2010, Blankenship’s company had been assessed penalties of nearly $900,000 but it had only paid about $168,000 of that. Then the unthinkable happened: 29 miners were engulfed in an underground explosion. Blankenship was accused of violating mine safety laws. 

Blankenship had been one of three major Republican candidates vying for the seat held by Senator Joe Manchin, a Democrat. Ultimately, WV Attorney General Patrick Morrissey had been declared the Republican winner, who Manchin defeated. Blankenship refused to support Morrissey, calling him complicit in the state’s opioid crisis — one that is still devastating southern West Virginia. His son-in-law told this reporter that Morrissey’s involvement was “disqualifying.” It’s an interesting position given that Manchin had earlier said that the coal exec had “blood on his hands.” 

“Under the conspiracy charge, the jury was also asked to decide whether there was an intent to defraud the United States,” Blankenship wrote in his book. “If the jury believed there was such an intent, it would be a felony conviction and subject to five years in prison.” 

Judge Copenhaver rightly notes that anyone with the ability to type keywords into a search engine could have discovered that Blankenship was found guilty of a misdemeanor. If Junior had “mistakenly” thought it to be a felony, he could have immediately corrected himself — something he failed to do. Moreover, in the specific tweet to which Junior implies that Blankenship is a felon, he references a CNN story that clearly says that the verdict resulted in one misdemeanor.  

Where does this leave Trump, Jr.? Unfortunately for him, Blankenship is an unrelenting hard-ass who wants to get his pound of flesh. He won’t settle it. He wants justice, not money. A jury will ultimately hear the evidence. The facts favor Blankenship. But the fog from the Upper Big Branch mine explosion has never lifted and the memories of 29 men who perished that day are still fresh.