Judge: CNN Can Shield Reporting From Congressman Nunes

(CN) — In a First Amendment victory for the network, CNN can protect its newsgathering from Trump-loyalist Congressman Devin Nunes until a federal judge decides whether to dismiss the litigation-happy representative’s case.

“I'm quite concerned about the broad scope of discovery sought by plaintiff [Rep. Nunes]," U.S. Magistrate Judge Ona Wang said in a telephone conference on Tuesday afternoon.

In 28 separate requests to the network, Nunes demanded that CNN turn over its notes, communications and other documents related to prominent U.S. and Ukrainian officials implicated in the impeachment saga. Those requests included three present or former Democratic members of Congress — ex-Representative Katie Hill and sitting Representatives Adam Schiff and Maxine Waters.

Nunes also demanded information on his current political opponent Phil Arballo and Trump’s rival, former Vice President Joe Biden.

"Your honor, this is really a remarkable lawsuit," CNN’s attorney Stephen Fuzesi told the judge.

During the height of the impeachment inquiry, Nunes sued over CNN’s reporting that he met with Ukraine’s former prosecutor general Victor Shokin in Austria to get dirt on Biden and his son, Hunter. The congressman filed his lawsuit in Virginia, before a federal judge there cited "significant concerns about forum shopping" to take advantage of the state’s permissive libel laws and transferred the case to New York.

Immediately seeking to dismiss the lawsuit upon its transfer, CNN warned about the threat to press freedom in allowing a U.S. congressman to force a news organization to crack open its reporters’ notebooks in a case involving a president.

"There is no reason to open this can of worms unless we really have to," Fuzesi remarked.

Amplifying those concerns, the case also involves Rudy Giuliani’s former business associate Lev Parnas, who was a source of CNN’s reporting and is currently indicted for campaign-finance violations in the Southern District of New York.

If the First Amendment and legal privilege issues surrounding a news organization, U.S. and Ukrainian politicians, and a criminal defendant were not thorny enough, the case arrived here during the coronavirus pandemic. Tuesday’s proceedings were conducted via telephone because the court remains closed.

The congressman’s attorney Steven Biss, who is not licensed to appear in the Southern District but received permission to speak during today’s arguments, downplayed what he derisively described as “‘freedom’ of the press” issues in written briefings. He said press freedom does not protect defamation, and he claimed that the case turned on simple factual issues.

“Either Congressman Nunes was in Vienna, or he wasn't," Biss said. "He either met Shokin, or he didn't.”

A disgraced Ukrainian ex-prosecutor, Shokin faced overwhelming pressure by the international community for his ouster for corruption. Trump supporters recast him as a hero opposing Biden, a narrative overwhelmingly rejected by the Western world and Ukrainian anti-corruption activists.

On behalf of Nunes, Biss valued Shokin’s word enough to cite his interview with the fledgling pro-Trump broadcaster One America in support of the congressman’s claims.

Calling Nunes’ case legally deficient, CNN’s attorney made clear the network stands by the reporting.

"CNN certainly contests allegations of actual malice,” Fuzesi said. “It certainly contests allegations of false and defamatory statements."

Judge Wang’s decision maintains the status quo until CNN’s motion to dismiss is decided. A prolific filer of defamation lawsuits, Nunes recently lost another case attempting to force Twitter to reveal the identity of a parody account spoofing him as his cartoon cow.

The Campaign Legal Center, a nonpartisan ethics watchdog, called for an investigation earlier this year probing how Nunes manages to bankroll his extensive litigation on a congressman's salary. 

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