WASHINGTON (CN) — A federal judge heard arguments Tuesday in a defamation case brought by former Republican Representative Devin Nunes against the Washington Post over a 2020 article linking the California politician to baseless claims that the Barack Obama administration wiretapped Trump Tower.
Nunes — now the CEO of Trump Media and Technology Group, the parent company of Truth Social — first sued the paper in federal court in Virginia in 2021. The article he says defamed him mostly focuses on the appointment of GOP operative Michael Ellis as the National Security Agency's general counsel.
In the article, reporter Ellen Nakashima wrote that Nunes had been the source of claims about wiretapping at Trump Tower. After Nunes sued, the Washington Post issued a correction, stating it had inaccurately attributed the claim to him and that Nunes did not believe any wiretapping had occurred.
Still, the corrected article nonetheless said that Nunes believed "intelligence files" would "buttress Trump’s baseless claims" about spying at Trump Tower.
Nunes took issue with the correction, filing an amended complaint. The case was then transferred to the District of Columbia.
After a lengthy and contentious discovery process — during which the Washington Post suggested Nunes be subject to sanctions for refusing to turn over evidence — the news organization requested summary judgment last December in an effort to close the case.
During a hearing on Tuesday, U.S. District Judge Carl Nichols, a Donald Trump appointee, seemed doubtful that Nunes could prove Nakashima and the Post acted with actual malice to defame him.
Actual malice — a legal standard under which a plaintiff proves a defendant wrote an article intending harm his or her reputation — is already a high burden, and even more so for a public figure like Nunes.
The standard, created in the landmark Supreme Court case New York Times v. Sullivan, is intended to protect news organizations and members of the public from retaliation by politicians and other public figures unless they knowingly or recklessly make false claims.
Thomas Hentoff, an attorney with D.C.-based Williams Connolly who is representing the newspaper and Nakashima, explained at the hearing that in her initial article, Nakashima relied on two articles: one from the New York Times, the other from the Washington Post. She misread the articles as attributing the wiretapping claims to Nunes himself, Hentoff said.
After Nunes filed suit, the corrected version was reviewed by a team of Washington Post editors and lawyers. None of them considered the “buttress" statement to be defamatory, Hentoff said.
In both instances, Hentoff argued there was no evidence that any party had acted with actual malice. Even if Nunes were not a public figure, the issue would at most be negligence, he said — not defamation.
Jason Greaves — an attorney with the Alexandria, Virginia-based firm Binnall Law who is representing Nunes — strongly disagreed in court on Tuesday that the errors could be chalked up to Nakashima acting carelessly in a breaking-news situation.
He pointed to her years of experience as a reporter for one of the most well-known and influential news organizations in the country, as well as to prior reporting by Washington Post reporters in 2017, which noted that Trump himself had made the wiretapping claims.
Even the corrected article was false, Greaves said, as Nunes had only used the intelligence files in his investigation into claims of collusion between Russia and the Trump 2016 campaign. At no point did Nunes specifically seek out those files to validate Trump’s claims, Greaves said — and any such support was a byproduct of that separate probe.
Greaves argued that Nakashima should have sought out alternative news sources rather than the New York Times and the Washington Post.
Hentoff said those were the top results in a relevant Google search. Greaves did not offer any alternative new sources but argued they would be beyond the first page on Google results.
In court on Tuesday, Nichols did not seem convinced that Nakashima or the editorial team’s actions reached the actual malice standard. In an exchange with Hentoff, he suggested the only way the standard could be reached is if the corrected article included a statement that “everyone in the world” would agree is false.
Nichols took the summary judgment motion under advisement. He also indicated that after he had resolved that issue, he might take up the question of sanctions against Nunes.
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