Trump Media & Technology Group CEO Devin Nunes is seen outside the U.S. Capitol July 26, 2023 (Francis Chung/POLITICO via AP Images).
After Republican former U.S. representative for California Devin Nunes‘ long-running defamation lawsuit against the Washington Post suffered a damaging blow in June when the trial judge tossed what was left of the case, it seemed that he was prepared to avail himself of the appellate process to the end. A notice that hit the D.C. Circuit docket on Tuesday confirmed, however, that the case is permanently over.
Lawyers for Nunes and the Post have agreed to cover their own costs in an agreement that the case be “voluntarily dismissed with prejudice,” meaning it cannot be brought again.
The defamation case arose just a week after the Post published Ellen Nakashima’s Nov. 9, 2020, article “White House official and former GOP political operative Michael Ellis named as NSA general counsel,” telling of the then congressman’s reported 2017 “midnight run” and attributing statements to Nunes that the Obama administration “spied” on — wiretapped — Donald Trump and his associates in Trump Tower.
Nunes had countered that he “never made the ‘baseless’ claim – or any claim – that the Obama administration spied on Trump Tower” and that he instead “said the exact opposite – that there was no evidence of any wiretap on Trump Tower.” The former House Intelligence Committee chairman said Nakashima should have known his stance on the issue because, in the course of her own reporting from 2017, she wrote down notes with his denials. He also asserted the so-called “midnight run” — through which he “was given access at the White House to intelligence files,” as Nakashima’s report put it — did not actually occur under the cover of darkness.
Though the Post moved to issue a correction, Nunes claimed the fixes defamed him too, only slightly shifting 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.” That revision didn’t stop giving readers the impression that Nunes believed the wiretapping theory, he said, so he moved forward with a lawsuit for nearly four years.
U.S. District Judge Carl Nichols, a Trump appointee, presided over the lawsuit after it was moved from Virginia state court to federal court in Washington, D.C., where, as recently as June, he granted the Washington Post’s motion for summary judgment. In one part of the ruling, the judge noted that even though Nunes had as early as 2017 said “[w]e know there was not a wiretap on Trump Tower,” his suggestion that it was possible “other surveillance activities were used against President Trump and his associates” worked 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,”” Nichols wrote. “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 also concluded that Nakashima “simply made a mistake” — an “honest mistake” even — when she didn’t remember Nunes’ 2017 denials when writing the article in question three years later.
Currently, a correction does show prominently atop the article relaying Nunes’ account of what took place:
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.
Law&Crime reached out to attorneys of record for Nunes and the Post on the ending of the lawsuit.
Read the dismissal notice here.
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