Congressman Devin Nunes, a California Republican, on Christmas Eve received the legal equivalent of a lump of coal in his stocking: a federal district court judge in Washington, D.C. dismissed a defamation case Nunes launched against The Washington Post and writer Shane Harris. Thus, Nunes, the perennial loser of lawsuits, lost yet again. The case is but one of several Nunes has filed against the Post in a lengthy docket of litigation.
Judge Amit P. Mehta, a Barack Obama appointee, noted out of the gate that Nunes failed to serve Harris with a copy of the relevant case documents as required by the Federal Rules of Civil Procedure. A party must be served with a summons and a complaint within 90 days. Nunes first filed the case on March 2nd in the Eastern District of Virginia; the Post successfully sought to have it transferred it to the District of Columbia at the end of that month.
That was not the only serious blunder in the Nunes case, the judge decided.
The case surrounds an article titled “Senior intelligence official told lawmakers that Russia wants to see Trump reelected.” The judge’s opinion contains a lengthy recitation of the core reporting; the following truncated version will suffice (citations omitted):
The Article reported that Shelby Pierson, a senior U.S. intelligence official, told members of the House Intelligence Committee, including Plaintiff [Nunes], that Russia had “developed a preference” for President Trump and wanted to see him reelected. According to an unnamed committee official, the briefing was open to all Committee members and covered “election security and foreign interference in the run-up to the 2020 election.” The Article did not specify the date of the briefing.
The Article went on to report that President Trump “learned about Pierson’s remarks from Rep. Devin Nunes (Calif.), the committee’s ranking Republican and staunch Trump ally.” The Article continued: “Trump grew angry at his acting director of national intelligence, Joseph Maguire, in the Oval Office, seeing Maguire and his staff as disloyal for speaking to Congress about Russia’s perceived preference.” Citing “people familiar with the matter,” the Article noted that “Trump erroneously believed that Pierson had given the assessment exclusively to Rep. Adam B. Schiff (D-Calif.), the chairman of the House Intelligence Committee.”
Nunes sought $250 million in compensatory damages and $350,000 in punitive damages.
He alleged that the report accused him of “criminal misconduct” and caused him “prejudice . . . in his profession and employment as a United States Congressman.” Per the judge’s opinion, Nunes attempted to claim two statements were “false and defamatory: (1) that [Nunes] told President Trump that Pierson had given her assessment of Russia’s preference for President Trump ‘exclusively to Rep. Adam Schiff’ and (2) that the President’s ‘opinion of Maguire shifted’ after hearing from [Nunes] about Pierson’s remarks.” Besides defamation, Nunes also accused the Post of conspiring against him with House Democrats.
The Post moved to dismiss the case by arguing that California law applied. It states that notice must be given before a defamation lawsuit is launched. If it is not, a plaintiff (here, Nunes) can only claim special damages. Nunes did not ask for special damages; the Post argued he therefore asked for nothing.
Nunes moved several months to file an amended complaint several months after filing the original complaint. The court said the amended complaint did not cure the aforementioned errors and blocked Nunes from filing it.
As to the defamation claims, Nunes claimed the Post committed “defamation per se,” which is when statements are defamatory on their face. The court said Nunes was actually alleging defamation by implication and characterized his complaint as such.
Notably, Judge Mehta said Nunes’s complaint “does not challenge the substantial truth of any statement in the Article.” Per the judge (citations and internal punctuation omitted):
Rather, [Nunes] alleges that the defamatory gist of the Article is that [Nunes] lied to and deceived the President of the United States. Thus, [Nunes] contests not any assertion of fact contained in the Article but, rather, the meaning conveyed by those facts.
To establish defamation by implication, the plaintiff must demonstrate (1) that a defamatory inference can reasonably be drawn and (2) that the particular manner or language in which the true facts are conveyed supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference. Here, the Complaint alleges two defamatory implications stemming from statements in the Article, neither of which can rationally be considered reasonable or intended or endorsed.
In other words, the Post‘s reporting does not say what Nunes poorly alleged that it says. The judge said it would not make sense for the average reader to conclude that a “staunch ally” of Donald Trump would lie to Trump — to use the Post‘s own words to describe Nunes.
Read the entire opinion below.
[Photo by Doug Mills/Pool/Getty Images]
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