Rep. Devin Nunes’ (R–Tulare) defamation lawsuit against the Washington Post can move forward, a Federal judge ruled Wednesday, giving the San Joaquin Valley representative a victory against the Post’s dismissal attempt.
In his ruling, U.S. District Court Judge Carl Nichols struck down Nunes’ claim that the paper acted negligently, but allowed the key claim – that it defamed him – to continue.
“Although the question is a close one, Nunes’s allegations suffice to survive dismissal as to his defamation claim, but not as to his negligence claim,” Nichols ruled. “Defendants’ Motion is therefore granted in part and denied in part.”
Nunes is suing The Post over an article published on Nov. 9, 2020, that was centered on Michael Ellis – former counsel for Nunes on the House Intelligence Committee – being selected as general counsel for the National Security Agency.
The print article stated: “In March 2017, [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 his baseless claims of the Obama administration spying on Trump Tower.”
The Post also published the article online, which included the following additional sentence which included Nunes: “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.’”
Nunes’ lawsuit hinges on the Post saying he made “baseless claims” in regards to the Obama Administration wiretapping Trump Tower.
While various public officials made wiretapping claims, as Nichols noted in his ruling, Nunes was not one of them.
“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,” Nichols wrote.
Nichols also pointed out two Washington Post articles from March 2017 which state that Nunes contradicted Trump by saying there was no evidence to the wiretapping claims. The Post called the situation the most notable example of the “few cases” in which “Nunes [was] at odds with Trump.”
On the other hand, the November 2020 article did not make that distinction, leading Nunes to request a retraction of the statements regarding the “baseless claims” and the “late at night” evidence search.
The Post changed its story to reflect Nunes’ demands and issued the following correction online, as well as a similar correction in print:
“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 correction, Nunes went ahead and filed a lawsuit, which the newspaper quickly moved to dismiss, saying the article was neither materially false nor defamatory.
Nichols disagreed. Along with taking issue with the Washington Post saying Nunes made “baseless claims,” Nichols ruled that the “late at night” statement could suggest “something untoward about the outing” and lead people to believe that Nunes is unfit for office.
And while Nichols said that most of Nunes’ claims for actual malice to prove the defamation allegation will not hold up, he allowed the lawsuit to continue because of the Post’s own previous reporting on the subject.
“In the article at issue here, the Post reported that Nunes made that baseless claim himself,” Nichols wrote. “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.”