WASHINGTON (Legal Newsline) - Last week a federal judge sided with the Washington Post’s motion to dismiss a negligence claim by Congressman Devin Nunes (R-California), but not its motion to dismiss a defamation claim by the congressman.
Allowing both claims to move forward would have occurred only under rare circumstances, an expert in defamation law said.
“You need a separate set of facts to bring a second claim alongside a defamation claim,” said Deanna Shullman, a media/First Amendment lawyer with the West Palm Beach office of Shullman Fugate PLLC.
“If, for instance, a reporter promised that an interview was off the record, and then identified and quoted the source in the copy and also made false statements about the source, you might be able to bring a breach of contract or promissory estoppel claim in the same cause of action with a defamation claim because the facts that support your defamation claim are different from the facts that support your breach of promise claim.”
The Nunes case centers on a November 17, 2020 article by Post reporter Ellen Nakashima over the selection of Michael Ellis, who had been Nunes’s chief of staff, as general counsel of the National Security Agency.
The article stated: “In March 2017, he (Ellis) gained publicity for his involvement in a questionable episode involving Nunes, who 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.”
It continued: “News reports stated that Ellis was among the White House officials who helped Nunes see the documents — reportedly late at night, earning the episode the nickname ‘the midnight run.’ The precise timing of the visit is unclear, and Nunes says it took place during daylight hours.”
Judge Carl Nichols for the U.S. District Court for the District of Columbia ruled that a later correction by the Post that Nunes never claimed that Obama had spied on Trump Tower and, citing an assertion by Nunes, that the “midnight run” actually took place during daylight hours, wasn’t enough to dismiss the defamation claim. The judge focused on the inclusion of “baseless” in the story.
“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,” the judge wrote in his Aug. 11 opinion.
“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).”
Besides concluding that the article was “materially false,” a juror, the judge said, could conclude that the article checked another box in a valid defamation claim: “…a reasonable juror could conclude that an elected official is ridiculous or unfit for office if he searched for evidence to support baseless claims.”
And, the judge ruled, the story could constitute reckless disregard for the truth – another necessary check in a defamatory claim involving a public official. He noted that the newspaper’s own earlier reporting quoted Nunes as saying that Trump’s claim about Obama ordering a wiretap of Trump Towers was “simply wrong.”
“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…”
Finally, the judge disagreed with the Washington Post’s argument that Nunes, a California congressman, should have relied on California defamation laws in supporting his claims. He said that Nunes’s injuries were primarily suffered in Washington, D.C.