Rep. Devin Nunes’ Libel Lawsuit Against the Washington Post Can Proceed
So Judge Carl J. Nichols (D.D.C.) just held today, in Nunes v. WP Company LLC:
Representative Devin Nunes alleges that the Washington Post and its reporter Ellen Nakashima (together, “the Post”) defamed him in an article published on November 9, 2020…. Although the question is a close one, Nunes’s allegations suffice to survive dismissal as to his defamation claim ….
Nunes is the Ranking Member of the House Permanent Select Committee on Intelligence. On November 9, 2020, the Post published an article about the selection of Michael Ellis as general counsel of the National Security Agency. Ellis had once served as Nunes’s chief of staff. The article focused principally on Ellis—including that his appointment was made “under pressure from the White House”—but it also discussed Nunes. In particular, the article stated that:
“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.” [Emphasis added.]
The online version of the article (but not the print version) included another sentence that mentioned 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.” [Emphasis added.]
Nakashima is listed as the author of both versions of the article.
This was not the first time that the Post (and other news outlets) had reported on claims that the Obama administration had spied on Trump Tower or that intelligence gathering had been directed toward the Trump campaign. Those reports began three and a half years earlier. In March 2017, then-President Trump tweeted that President “Obama had [Trump’s] ‘wires tapped’ in Trump Tower.” Thereafter, various officials made public statements about whether there had been a wiretap on Trump Tower phones or other intelligence gathering directed toward the Trump campaign. 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.
As particularly relevant here, during this period, the Post published at least two articles emphasizing that a meaningful difference separated Trump’s and Nunes’s positions. In one article (published on March 15, 2017), the Post laid out “a brief list of people who have said that President Trump’s allegation that President Barack Obama ordered a wiretap of Trump Tower … is simply not true.” Nunes was the first person on the list; the Post identified him as “one of the few defenders of Trump’s claims,” but explained that he had “made clear … that there is zero evidence to suggest Trump Tower was wiretapped.” In a second article, published eleven days later, the Post described the situation as the “most notabl[e]” example of the “few cases” in which “Nunes [was] at odds with Trump.”
But the Post’s November 9, 2020 article did not draw this distinction, and eight days after its publication, Nunes notified the Post that he believed the article was false and defamatory. He also demanded that it remove the statements about Nunes making “baseless claims” and visiting the White House “late at night” and issue a retraction or correction. On December 8, the Post revised its online article to state that “[i]n March 2017, … Nunes … was given access at the W
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