MSNBC Pundit’s Tweet Accusing Lawyer of “Coach[ing a Witness] to Lie” Is a Potentially Defamatory Factual Assertion, Not an Opinion
From Judge Loren L. AliKhan’s decision yesterday in Passantino v. Weissmann (D.D.C.):
The following factual allegations drawn from Mr. Passantino’s complaint, are accepted as true for the purpose of evaluating the motion before the court. Mr. Passantino has been a lawyer for more than thirty years. In 2017 and 2018, he served as a senior lawyer in the Trump administration. Since then, he has been in private practice.
Following the attack on the U.S. Capitol on January 6, 2021, the House of Representatives established a Select Committee to investigate what had happened. As part of its investigation, the Select Committee interviewed numerous witnesses, including Cassidy Hutchinson, a former special assistant to President Trump who had been serving under the direction of White House Chief of Staff Mark Meadows on January 6, 2021.
Mr. Passantino represented Ms. Hutchinson at her first three closed-door Select Committee depositions on February 23, March 7, and May 17, 2022. While the complaint does not specify exactly when this occurred, Ms. Hutchinson sent text messages to a friend expressing that she “d[idn]’t want to comply” with the Committee’s requests. In the same conversation, however, she noted that “Stefan [Passantino] want[ed] [her] to comply.”
Following the second deposition, Ms. Hutchinson felt that she had “withheld things” from the Select Committee and wanted to “go in and … elaborate … and kind of expand” on some topics. Unbeknownst to Mr. Passantino, Ms. Hutchinson asked a friend to “back channel to the committee and say that there [were] a few things that [she] want[ed] to talk about.” While Ms. Hutchinson deliberately kept this from Mr. Passantino, she explained at a future deposition that, at that time, she “wasn’t at a place where [she] wanted to terminate [her] attorney-client relationship with [Mr. Passantino].”
In early June 2022, after the third deposition, Ms. Hutchinson fired Mr. Passantino and retained Bill Jordan and Jody Hunt as her new counsel. She subsequently gave a fourth, televised deposition on June 28, which received substantial media coverage.
After her fourth deposition, Ms. Hutchinson sent a letter to the Select Committee stating that she intended to “waive [her] attorney-client privilege [with Mr. Passantino] in order to share information with the Committee that [was] relevant to [her] prior testimony.” The Select Committee accordingly scheduled her for a fifth deposition for September 14, 2022.
At her fifth deposition, Ms. Hutchinson revealed additional details about the preparation she and Mr. Passantino had done ahead of her first Select Committee deposition. Specifically, the two had met “for a couple hours” on February 16, 2022 to discuss her upcoming testimony. When Ms. Hutchinson suggested printing out a calendar so that she could “get[] the dates right” with respect to timelines of events, Mr. Passantino said “No, no, no.” He told her that the plan was “to downplay [her] role” and that “the less [she] remember[ed], the better.” Id. 30:19-31:2. When Ms. Hutchinson brought up an incident that occurred inside the Presidential limousine on January 6 (which she had been told about by a colleague), Mr. Passantino said “No, no, no, no, no. We don’t want to go there. We don’t want to talk about that.”
Mr. Passantino then told Ms. Hutchinson: “If you don’t 100 percent recall something, even if you don’t recall a date or somebody who may or may not have been in the room, [‘I don’t recall’ is] an entirely fine answer, and we want you to use that response as much as you deem necessary.” Id. 36:7-10. Ms. Hutchinson then asked, “if I do recall something but not every little detail, … can I still say I don’t recall?” to which Mr. Passantino replied, “Yes.” The morning of the first deposition, Mr. Passantino reminded Ms. Hutchinson to “[j]ust downplay [her] position,” telling her that her “go-to [response was] ‘I don’t recall.'”
At her fifth deposition, Ms. Hutchinson discussed a line of questioning from her first deposition about the January 6 incident in the Presidential limousine. She explained that, during a break after facing repeated questions on the topic, she had told Mr. Passantino in private, “I’m f*****. I just lied.” Mr. Passantino responded, “You didn’t lie…. They don’t know what you know, Cassidy. They don’t know that you can recall some of these things. So you [sic] saying ‘I don’t recall’ is an en
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