Former Rep. Devin Nunes, R-Calif., applauds in the audience as former President Donald Trump announces he is running for president for the third time as he speaks at Mar-a-Lago in Palm Beach, Fla., Tuesday, Nov. 15, 2022. (AP Photo/Andrew Harnik)
Trump Media & Technology Group CEO Devin Nunes, the Republican former U.S. representative for California, failed in his yearslong efforts to sue the Washington Post for defamation over a 2020 article that said he backed the Donald Trump-amplified notion that the Obama administration wiretapped Trump Tower, a now unsealed opinion shows.
The opinion from U.S. District Judge Carl Nichols, a Trump appointee, is dated June 14, but the docket reviewed by Law&Crime shows that there were some lingering questions about whether redactions were needed. On June 24, having heard the “parties’ representation that no redactions are necessary,” the judge ordered the opinion unsealed, and now it has been.
The dispute stemmed from the Post’s Nov. 9, 2020, article headlined “White House official and former GOP political operative Michael Ellis named as NSA general counsel” and bylined by Ellen Nakashima.
While still a congressional representative, Nunes through his lawyer Steven Biss sued in Virginia federal court eight days after the article’s publication. He alleged that the newspaper published defamatory statements about a supposed late-night White House visit in 2017, dubbed the “midnight run,” and falsely attributed statements to Nunes that the Obama administration “spied” on — wiretapped — Trump and his associates in Trump Tower.
“Plaintiff never made the ‘baseless’ claim – or any claim – that the Obama administration spied on Trump Tower. Indeed, prior to publication of the Article, Defendants knew from prior reporting that Plaintiff said the exact opposite – that there was no evidence of any wiretap on Trump Tower,” the Nunes complaint stated.
The Virginia-based lawsuit was eventually moved to federal court in Washington, D.C., where in 2021 Nichols ruled the lawsuit could move forward even though the Post added a correction to the article in question.
Nunes had made the case that the Post also defamed him in the corrected version of the article, shifting the language from “intelligence files that Nunes believed would buttress his baseless claims of the Obama administration spying on Trump Tower” to “intelligence files that Nunes believed would buttress Trump’s baseless claims of the Obama administration spying on Trump Tower.”
The correction in the present day reads at the very top of the November 2020 article as follows:
Correction: 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.
“Although the question is a close one,” Nichols wrote at the time, tossing a negligence allegation but not a defamation claim, “Nunes’s allegations suffice to survive dismissal[.]”
In his since unsealed opinion granting the Post summary judgment on Nunes’ lingering claims, Nichols indicated that even though Nunes had as early as 2017 said “[w]e know there was not a wiretap on Trump Tower,” his suggestion it was possible that “other surveillance activities were used against President Trump and his associates” ended up working against him.
“Here, the Court concludes that a reasonable jury could not conclude that the correction was materially false. After all, as Defendants correctly contend, the record demonstrates that Nunes’s public statements in March 2017 after the White House visit had ‘provided some credence to Trump’s concerns,”” the ruling said. “It was therefore not materially false to say that Nunes’s comments in March 2017, as reflected in public reporting around that period, were directed toward bolstering President Trump’s claims (even if baseless) about wiretapping ‘by comparing it to other potential evidence of Obama administration surveillance of Trump or his associates.’”
The judge further believed that Nakashima’s “failure to remember” Nunes’ 2017 denials in November 2020 did not rise the level of actual malice, as she “simply made a mistake.”
“More important, Defendants have proffered undisputed evidence that Nakashima simply made a mistake when she wrote the sentence in question—and a mistake is not actual malice. Even with the benefit of voluminous discovery, Nunes has failed to identify sufficient facts from which a jury could decide, by clear and convincing evidence, that Nakashima’s failure to remember in November 2020 that Nunes had objected to Trump’s claims of wiretapping in March 2017 was anything more than an honest mistake,” Nichols wrote. “Summary judgment is therefore appropriate as to this statement.”
Read the ruling here.
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