A federal judge in the nation’s capital rejected the Washington Post‘s motion to dismiss a defamation lawsuit against the newspaper from Rep. Devin Nunes (R-CA) late Wednesday, instead allowing the suit to proceed to discovery where the powerful California conservative will be able to gather information about the newspaper’s internal communications about the congressman and the 2016 election.
This means that Nunes, the ranking GOP member of the House Intelligence Committee, will be able to engage in discovery and seek email and other evidence including depositions of Washington Post employees involved in publishing a story about him that contained inaccurate information.
The Washington Post story in question, a broader piece about a man named Michael Ellis whom the Pentagon had named to be general counsel of the National Security Agency (NSA) after the November election and in the waning days of now former President Donald Trump’s administration, contained multiple inaccuracies about Nunes later in the copy.
Specifically, the article claimed Nunes engaged in what has become known as the “midnight run,” where establishment media outlets alleged Nunes viewed documents critical to uncovering the origins of the Russia hoax scandal in the middle of the night but instead he actually viewed them during daytime hours. It also falsely claimed that Nunes believed the Obama administration spied on Trump Tower in 2016, another inaccuracy as Nunes had previously stated he did not believe that.
The Washington Post has affixed two corrections to that effect to the top of the story online, admitting its original story was incorrect. The multi-part correction reads as follows:
Correction: 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.
Nunes, however, proceeded with litigation against the Post and its reporter Ellen Nakashima claiming these corrections — the one online and a slightly different one issued in print — were insufficient to resolving the matter. The corrections were only granted in December 2020, after Nunes first filed his original lawsuit against the Post and Nakashima. In his amended complaint filed in federal court in Virginia — before the case’s venue was changed to Washington, DC — Nunes’s legal team addresses the correction he views as insufficient.
“Defendants refused to retract or to make and publish any further corrections,” page 5 of the 22-page amended complaint from Nunes after the original correction from the Post reads:
They failed to publish any correction on Twitter. In spite of the admitted inaccuracy of the Article, Defendants continued to misreport and misrepresent that ‘Nunes … was given access at the White House to intelligence files that Nunes believed would buttress Trump’s baseless claims of the Obama administration spying on Trump Tower.’ Plaintiff never held this belief. He said so publicly at the time. He never took any action to support or buttress any claim by the President of spying on Trump Tower.
Later in the amended complaint, Nunes’s team specifically lays out a case for why the inaccurate statements the Post and Nakashima published — which they now admit were inaccurate through their correction — rise to the level of meeting the very high standard of “actual malice” set out in the 1964 Supreme Court case New York Times v. Sullivan, which sets the standard for public figures to sue for libel or defamation. Nunes, as a sitting member of Congress, clearly rises to the level of a public figure for the intent and purpose of these legal matters, and actual malice is an extremely high standard to meet: the plaintiff must demonstrate that they were made with either a reckless disregard for the truth or with actual knowledge that the statement was false when it was made.
In addition to actual malice, another heightened standard under Sullivan is that while plaintiffs in typical defamation cases must prove their assertions by a preponderance of the evidence — meaning that the evidence shows more than likely that the plaintiff is correct — for public figures, they must prove their case through clear and convincing evidence.
To make that case, Nunes’s lawsuit points to a CNN appearance from Nakashima from 2017 — more than three years before she published this story — in which she explicitly contradicted what she later admittedly falsely printed about Nunes.
“Prior to publication of the Article, Nakashima knew the Defamatory Statements were false and harbored serious doubts as to the veracity of her sources,” a key paragraph of Nunes’s amended complaint begins on page 12, concluding on page 13.
First, Nakashima knew there was no ‘midnight run’. In March 2017, Plaintiff’s communications director, Jack Langer, expressly advised Nakashima, both off the record and on the record, that the story about a ‘dead-of-night excursion’ or ‘midnight run’ was inaccurate. Further, on March 27, 2017, Plaintiff appeared on CNN and repeated that there was no ‘surreptitious’ ‘midnight run’. Plaintiff confirmed on air that, far from the ‘surreptitious’ visit to the White House grounds that WaPo reported on March 30, 2017, Plaintiff met with a source in the middle of the day ‘when the sun was out’ and spontaneously stopped to chat with numerous people he saw there, including foreign dignitaries. His visit was part of the House Intelligence Committee’s ongoing oversight investigation into concerns that Americans’ identities were not protected (masked) properly in intelligence reports or were unmasked improperly.
On the second claim, the idea that Nunes believed Trump’s claims that Trump Tower was wiretapped in 2016, Nunes’s lawsuit points to two articles from different Washington Post reporters from 2017 that specifically point to Nunes disagreeing with Trump about that — again both more than three years before this November 2020 Nakashima article for which Nunes is suing the newspaper — that demonstrate the newspaper had previously printed the opposite of what it later admittedly falsely printed under Nakashima’s byline. One of the articles, from now-CNN writer, then-Washington Post writer Chris Cillizza, literally includes the facts that contradict Nakashima’s false claims in its headline.
“Devin Nunes confirms it: The evidence of Trump Tower being wiretapped just doesn’t seem to exist,” was Cillizza’s headline from March 2017.
The second, from two other Post reporters Greg Miller and Karoun Demirjian, includes this statement halfway through the story: “Nunes has been at odds with Trump in a few cases, most notably when Nunes said that Trump was simply ‘wrong’ about the claim that Obama had ordered a wiretap of Trump Tower to listen to the Republican presidential candidate.”
Nunes’s amended complaint, on page 14, addresses this point. “Nakashima did not have one shred of evidence to support her statement about Plaintiff’s ‘belief’ because, in truth, she completely fabricated the accusation,” the lawsuit reads:
Based on her own prior reporting and her review of reporting by numerous other media outlets, including the New York Times, CNBC, CBS, Politico, Mother Jones, Business Insider and the AP, Nakashima knew that Plaintiff had made no ‘claims’ – ‘baseless’ or otherwise – that the Obama administration spied on Trump Tower. Indeed, Nakashima knew that in each and every reported instance, without any exception, Plaintiff stated the exact opposite: that there was no spying on Trump Tower.
After fighting for a change of venue to D.C., the Post sought to have the suit dismissed. But Judge Carl Nichols of the U.S. District Court for the District of Columbia denied the motion, thereby allowing Nunes’s suit to proceed to the discovery phase. In that opinion, Judge Nichols — who was appointed by Trump — reasoned that a “reasonable juror,” should the case proceed to a jury trial as Nunes’s complaint seeks, could, using the above-explained evidence and more contained in Nunes’s suit and the judge’s decision, “conclude that the article was materially false.”
As for actual malice, the judge said that Nunes would have to show more as the lawsuit proceeded, but that he had shown enough for this early stage of litigation. “Most of Nunes’s allegations, without more, do not demonstrate actual malice. As an initial matter, Nunes’s bald assertions that the Post knew that its statements were false are no more than ‘labels and conclusions’ referencing the relevant legal standard,” Judge Nichols wrote. “And his conclusory references to the Post’s purported animus and lack of standards fare little better; actual malice requires more.”
The judge also panned Nunes’s claims his denials of the inaccurate claims the Post originally printed, saying a denial from a subject does not help meet the standard of actual malice.
But the judge adds that Nunes’s complaint contains specific factual allegations to elaborate on the claim these false statements were printed with actual malice. “But Nunes pleads more than just legal conclusions. In March 2017 the Post itself had reported that Nunes had denied President Trump’s claims about a wiretap at Trump Tower,” Judge Nichols continues:
In the article at issue here, the Post reported that Nunes made that baseless claim himself. 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.
A paragraph and a half later, Judge Nichols spells out clearly what Nunes needs to do to win his case: “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.”