Devin Nunes appears in a March 2019 file photo.
A federal judge ruled ruled Wednesday that a defamation lawsuit by Rep. Devin Nunes (R) could continue against the Washington Post. In the lawsuit, Nunes complained that the newspaper described some of his theories as “baseless” and that previous Post reporting indicated that some of those theories were, indeed, correct. The Post‘s contradictions led the judge to rule that Nunes had a shot at recovery despite a subsequent correction by the newspaper.
U.S. District Judge Carl J. Nichols, a Donald Trump appointee who on the same day granted procedural wins to voting system company U.S. Dominion in a defamation lawsuits against election conspiracy theorists Sidney Powell, Rudy Giuliani, Mike Lindell, and several associated organizations, also ruled that the Nunes case should similarly stay alive.
“Although the question is a close one,” Judge Nichols wrote, “Nunes’s allegations suffice to survive dismissal as to his defamation claim, but not as to his negligence claim.”
The lawsuit centers around a November 9, 2020 Washington Post article which accused Nunes of airing “baseless claims of the Obama administration spying on Trump Tower.” That line appeared in a story which largely centered on Michael Ellis, who was selected as general counsel of the National Security Agency after serving as Nunes’s Chief of Staff.
The lawsuit recapped at length the theories of Trump Tower spying and explained why the defamation lawsuit arose:
This was not the first time that the Post (and other news outlets) had reported on claims that the Obama administration had spied on Trump Tower or that intelligence gathering had been directed toward the Trump campaign. Those reports began three and a half years earlier. In March 2017, then-President Trump tweeted that President “Obama had [Trump’s] ‘wires tapped’ in Trump Tower.” Thereafter, various officials made public statements about whether there had been a wiretap on Trump Tower phones or other intelligence gathering directed toward the Trump campaign. For his part, Nunes stated publicly that there was never “a physical wiretap of Trump Tower” nor a “FISA warrant . . . to tap Trump Tower.” But Nunes also expressed his “concern[] that other surveillance activities were used against President Trump and his associates,” and that he thought it was “very possible” that Trump (or others at the White House) might have been swept up in surveillance targeting foreign nationals on U.S. soil.
As particularly relevant here, during this period, the Post published at least two articles emphasizing that a meaningful difference separated Trump’s and Nunes’s positions. In one article (published on March 15, 2017), the Post laid out “a brief list of people who have said that President Trump’s allegation that President Barack Obama ordered a wiretap of Trump Tower . . . is simply not true.” Nunes was the first person on the list; the Post identified him as “one of the few defenders of Trump’s claims,” but explained that he had “made clear . . . that there is zero evidence to suggest Trump Tower was wiretapped.” In a second article, published eleven days later, the Post described the situation as the “most notabl[e]” example of the “few cases” in which “Nunes [was] at odds with Trump.”
But the Post’s November 9, 2020 article did not draw this distinction, and eight days after its publication, Nunes notified the Post that he believed the article was false and defamatory. He also demanded that it remove the statements about Nunes making “baseless claims” and visiting the White House “late at night” and issue a retraction or correction.
The Post, in turn, edited its online article and issued copious corrections both online and in print. Here’s one of them:
As originally published, this article inaccurately attributed claims that the Obama administration spied on Trump Tower to Rep. Devin Nunes (R-Calif.), rather than to President Trump. Nunes has stated that he did not believe there had been any wiretapping of Trump Tower. This article has also been updated to note that Nunes says an incident known as the “midnight run” took place during daylight hours.
Despite the corrections, Nunes sued.
Judge Nichols, after contemplating the legal standards for defamation lawsuits against public officials, said there was a difference between “[m]inor inaccuracies” and claims that Nunes was airing “baseless” complaints:
The Post doesn’t really contend that Nunes has ever made that claim; instead, it argues that the article is substantially true because a claim about the Obama administration “spying on Trump Tower” is not materially different from Nunes’s public claims about the Obama administration “spying on the Trump campaign” and conducting “surveillance activities” against President Trump and his associates.
[ . . . ]
This argument might be persuasive if the article stated merely that Nunes had made claims about spying on Trump Tower; without more, a reader might think there is no meaningful difference between “spying on Trump Tower” and “surveillance activities . . . used against President Trump and his associates.” But the article also labeled Nunes’s claims as “baseless[].” By November 2020, there was evidence to support (at least to a certain extent) Nunes’s claims about intelligence activities that touched on the Trump campaign; by that time, an Inspector General report had concluded there had been an investigation “to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the Government of Russia,” and that the investigation targeted certain U.S. persons affiliated with the campaign.
What remained baseless in November 2020 (or at least what Nunes alleges remained baseless) was the claim President Trump asserted in his March 2017 tweet: that the Obama administration had wiretapped Trump Tower. But Nunes alleges he never made such a claim. This is an important difference: A reasonable juror could conclude that there is a material difference between stating that Nunes had made a claim supported by evidence (that the Obama administration had undertaken intelligence activities related to individuals involved in the Trump campaign) and stating that Nunes had made a baseless claim (that the Obama administration had wiretapped Trump Tower). A reasonable juror could therefore conclude that the article was materially false because it stated that Nunes had made such a baseless claim (when he had not).
That precise splitting of legal hairs is why Judge Nichols ruled that the lawsuit should survive a motion to dismiss. And Judge Nichols said the Post’s subsequent attempt to legally argue around the use of the word “baseless” was rubbish at best:
The Post further urges the Court to discount the relevance of its use of the term “baseless” for purposes of the defamatory meaning analysis because, without that word, the article would be “otherwise accurate” — presumably on the theory that a single word cannot transform an “otherwise accurate” article into one with defamatory meaning. But that argument proves too much; the Court is required to consider the article as a whole, and the insertion of a single word can substantially change the meaning of a statement.
The judge also rubbished many of Nunes’s claims that the Post acted with “actual malice,” but left some of them alive.
“Actual malice” is the much-heralded standard of defamation law which requires public figures and public officials to prove that a defendant published information with actual knowledge that it was false or with reckless disregard for whether it was true or false. The standard measures the defendant publication’s attitude toward the truth, not whether or not the defendant publication held “malice” (or hatred) in a lay sense against the plaintiff. Again, per the judge:
A newspaper’s own prior (and correct) reporting that is inconsistent with its later (and incorrect) reporting could certainly give the paper reason to seriously doubt the truth of its later publication — just as a source’s pre-publication recantation may be evidence that a publisher had reason to doubt the source’s original claims.
[ . . . ]
The Post urges the Court to conclude that its November 9, 2020 article merely misattributed the baseless claims to Nunes (rather than to President Trump) and was therefore a “simple misstatement of the Post’s prior reporting.” That may very well be true.
[ . . .]
[A] reasonable juror could conclude meant that Nunes did believe the baseless claims. Later in this case, Nunes will have to establish by clear and convincing evidence that, even in light of the corrections the Post did issue, it published its statements with actual malice. But for now, he has sufficiently pleaded that, in November 2020, the Post published its article with at least reckless disregard of the truth that it had previously reported.
The opinion as a whole was skeptical of Nunes’s ability to secure a large victory. The Post‘s “correction ‘is significant and tends to negate any inference of actual malice,'” the judge noted. But “even a full retraction, without more, does not foreclose the possibility that a defendant acted with actual malice.”
Read the full opinion below:
[Editor’s note: citations to the court record and to case law were omitted in various quotes in this piece to make them easier to read. Law&Crime also italicized references to the Washington Post within the quotes to match its styleguide, but they were not italicized in the underlying judge’s opinion.]
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