Over the weekend, House Intelligence Committee Ranking Member Devin Nunes (R-Calif.) threatened to sue CNN and the Daily Beast for publishing articles claiming the he secretly met with a former Ukrainian official in 2018 to obtain dirt on former Vice President Joe Biden. The stories, both of which were based on statements from an attorney representing recently indicted Rudy Giuliani associate Lev Parnas, alleged that Nunes employed Parnas’s help in arranging a meeting with Ukraine’s former Prosecutor General Victor Shokin. But according to George Washington University constitutional law Prof. Jonathan Turley, Nunes’s arguments actually undermine many of the defenses he and the White House have been repeating for weeks.
“Nunes may be doing greater damage to the White House than the media in declaring his intent to sue,” Turley reasoned.
Nunes’s “Criminal in Nature” Claim
Nunes claimed the defamatory statements about him were “criminal in nature,” adding, “The problem with this week’s fake news story is — we actually caught them. And we caught them badly and it also involves criminal activity…We are going to take both CNN and the Daily Beast likely into federal court, right after Thanksgiving and we hope they cooperate.”
There are four categories of “per se” defamation: 1) statements charging a crime; 2) statements imputing a loathsome disease; 3) statements imputing unchaste conduct; and 4) statements charging professional misconduct.
According to Turley, if Nunes meant the statement asserted he committed a crime, that crime would be using public funds for political purposes – the precise conduct that is at the heart of the impeachment inquiry against President Trump.
“One defense (raised by acting Chief of Staff Mick Mulvaney) is that such quid pro quos have always been part of foreign policy so, ‘I have news for everybody: Get over it,’” he wrote. “If the criminal matter is the intermixing of politics with public-funded work, Nunes could find himself in the unenviable position of rivaling Mulvaney as one of the most quoted Republicans in this scandal.”
Nunes’ “Serious” Federal Crime Claim
“It is not OK to work with someone who has been indicted on [a] serious federal crime, to build a media narrative and dirty up a member of Congress,” Nunes said on Sunday. To be clear, Nunes was castigating the media outlets for publishing claims made by an attorney who is representing an individual indicted for federal offenses.
This line of defense also seemed odd, Turley pointed out, because both Parnas and Igor Fruman worked closely with Giuliani, the president’s personal attorney.
“If it was untoward to be working with them, Nunes could have a problem in explaining why Giuliani maintained his own association with them in Ukraine,” Turley wrote.
Nunes’ So-Called “Odd Standard”
The claim that articles alleging Nunes associated with criminals is damaging to the congressman’s reputation is legally and politically absurd, particularly in light of the plethora of former Trump associates who count themselves as felons.
“You cannot allege that it is per se defamatory to associate you with two individuals who have only two degrees of separation from the president himself,” Turley wrote. “Indeed, the president has associated directly with a number of proven felons including his former personal counsel Michael Cohen and his former campaign chair Paul Manafort.”
Unwanted Discovery
Despite Nunes’s stated hope that CNN and the Daily Beast will “cooperate” with the lawsuit, he should be wary that discovery is a two-way street, and that a “treasure trove” of previously unreleased documents and information could very well end up in the hands of organizations he considers hostile.
“With such a lawsuit will come depositions and discovery into Nunes’ travel, associations and efforts. That could prove a treasure trove for two organizations with diminishing access to Republican sources,” Turley concluded.
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