A divided appeals court has upheld a lower court’s dismissal of Donald Trump ally Devin Nunes’s defamation case against CNN over a story linking the then-congressman to the then-president’s alleged efforts to get damaging information about Joe Biden from Ukrainian officials.
Nunes, the former GOP congressman from California who now runs Trump’s social media platform Truth Social, had sued CNN following a 2019 story reporting that former Rudy Giuliani associate Lev Parnas was willing to tell Congress about meetings Nunes allegedly had in Vienna in 2018 with Ukrainian Prosecutor General Viktor Shokin. The story directly linked Nunes to the alleged efforts to enlist Ukraine in digging up dirt against Joe Biden and his son Hunter Biden—efforts that formed the basis of Trump’s first impeachment trial.
Nunes had originally sued in federal court in Virginia, but a federal judge, citing concerns about “form shopping” and noting that there was “no logical connection between the events in this case and this district,” transferred the case to New York.
Chief U.S. District Judge Laura Taylor Swain dismissed Nunes’ claim in February 2021. Swain found that California law should apply to Nunes’ case, since that is where he lived and would have presumably suffered the greatest damage to his reputation.
In applying California law, Swain further found that Nunes had failed to meet the statutory requirement that a plaintiff alleging defamation must make a written demand for a retraction within a short period of time after publication. Nunes had not done so, and Swain determined that he could not maintain his claim.
The district court dismissed the case with prejudice, meaning Nunes cannot file the claims again.
On Thursday, the U.S. Circuit Court of Appeals for the Second Circuit affirmed the dismissal with prejudice of Nunes’s defamation and civil conspiracy claims.
“[W]e hold that the district court correctly determined that under the circumstances presented in this case, the Virginia Supreme Court would apply the substantive law of the state where the plaintiff incurred the greatest reputational injury, with a presumption that absent countervailing circumstances, a plaintiff suffers the most harm in his state of domicile,” the decision from U.S. Circuit Judges Michael Park and William Nardini, both Trump appointees, said.
The judges rejected Nunes’ argument that New York law should apply since, according to him, that’s where the allegedly defamation originated.
“The complaint says nothing about where the content was uploaded or where the relevant server resided, much less that either event occurred in New York,” the opinion says. “To the contrary, the complaint asserts that ‘CNN published the CNN Article . . . in Virginia and around the World’ and that CNN is ‘a Delaware corporation, headquartered in Georgia.'”
U.S. Circuit Judge Steven Menashi, also a Trump appointee, broke from his colleagues and dissented.
Menashi agreed with Nunes and would apply the “place of broadcast” rule, writing that “no one disputes that the place of broadcast was New York.”
Menashi also said that Nunes had properly alleged facts that the greatest damage to his reputation occurred in Washington, D.C., not California, and this should have been enough to survive a motion to dismiss.
“The amended complaint, however, alleges that CNN ‘intentionally and unlawfully imped[ed] … [Nunes’s] duties as a United States Congressman, including the performance of his duties as a Ranking Member of the House Intelligence Committee during the impeachment inquiry,'” Menashi wrote. “It alleges that CNN aimed to inflict ‘maximum damage to [his] reputation … and to cause him to be removed from the impeachment inquiry.’ The broadcast and the article were focused directly on the impeachment inquiry, which was occurring in Washington. The complaint demonstrates the effect of the allegations on the impeachment inquiry.”
CNN declined to comment on the ruling. Nunes’ lawyer did not immediately reply to Law&Crime’s request for comment.
Read the opinion and the dissent here:
[Image via Mark Wilson/Getty Images]
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