WASHINGTON — A panel of judges ruled that former U.S. Rep. Devin Nunes could not sue The Washington Post over a 2020 article that described a House Intelligence Committee hearing about the presidential election.
Nunes, who was the ranking member of the House Intelligence Committee from January 2019 to January 2022, alleged in his lawsuit that the article defamed him and that the Post conspired with Democrats in the U.S. House of Representatives to do so.
On Friday, a panel of three judges in the U.S. Court of Appeals for the District of Columbia Circuit affirmed a lower court ruling that the former congressman from Tulare, California, could not continue to sue the Post because “Nunes failed to plausibly allege a claim of defamation,” they wrote in their ruling.
The Post’s article, published on Feb. 21, 2020, detailed a classified briefing in which a U.S. intelligence official said that Russia wanted former President Donald Trump to win the 2020 election. It said that Nunes informed Trump of the meeting.
It is the first of two lawsuits that the California Republican filed against the Post. The other, also filed in 2020, is ongoing in the U.S. District Court for the District of Columbia over an article that referenced a “midnight run” in which Nunes allegedly went to the White House to gather information about the FBI monitoring Trump’s 2016 campaign.
The lawsuits are two of the 10 that Nunes has filed since 2019 against media companies and critics whom he claims have defamed him. The judges’ ruling Friday is Nunes’ most recent legal setback, as more of the defendants in his lawsuits have been dismissed and appeals denied. He has voluntarily withdrawn two, including one against McClatchy, the parent company of The Fresno Bee.
He has not won or settled in any case.
The article’s authors — Ellen Nakashima, Shane Harris, Josh Dawsey and Anne Gearan — wrote that when Trump heard about the briefing from Nunes, he was “furious” and subsequently blamed Joseph Maguire, then the acting Director of National Intelligence who was being considered for the permanent position.
Trump announced that he was replacing Maguire with Richard Grenell, who was the U.S. ambassador to Germany at the time, after learning about the briefing’s contents.
The article also included that Trump “erroneously believed” that the official who gave the briefing, Shelby Pierson, exclusively gave the information to Rep. Adam Schiff, D-Calif., the chairman of the House Intelligence Committee who was then the leading impeachment manager in Trump’s first impeachment trial. Sources told the Post that Trump also thought the information would aid Democrats in the election if it were shared, the authors wrote.
It said that Nunes, described as “a staunch Trump ally,” told Trump about Pierson’s remarks.
Nunes, who represented the area surrounding Tulare in Congress for almost two decades, left Congress this year to lead Trump’s social media venture. The former president’s new application, Truth Social, officially launched in February.
A special election will decide who will finish Nunes’ term in the U.S. House.
Neither a lawyer for Nunes nor lawyers for the Post immediately replied to a request for comment. A spokesperson for the Post declined to comment.
In the lawsuit filed in March 2020, Nunes claimed that the article, titled “Senior intelligence official told lawmakers that Russia wants to see Trump reelected,” implied that he lied to Trump about who Pierson gave the information to and blamed him for ruining Maguire’s promotion.
Nunes sought more than $250 million in damages in the suit that was originally filed in the U.S. District Court for the Eastern District of Virginia. A judge there moved the suit to the U.S. District Court for the District of Columbia.
A federal judge at that court dismissed Nunes’ suit against the Post in December 2020, finding that Nunes could not prove statements in the Post’s article were either defamatory outright or defamatory by implication. The article never suggested that Nunes deceived Trump, the judge ruled.
The judge added that even if Nunes were able to prove defamation by implication, the former congressman failed to show actual malice — that the Post knew statements it published were false or acted with “reckless disregard” for whether statements were true. Public figures such as Nunes have to prove that stories are published with actual malice to recover damages in defamation suits.
Nunes immediately appealed the decision. The appeals court decided in September 2021 that it did not need to hear oral arguments to make its decision.
In the decision dated April 1, the appeals court judges agreed that there was no defamation by implication and that made further contentions — whether a California rule for retraction applied or his claims about conspiracy had merit — moot.
“Nothing in the article suggests an intent on the part of the Post to imply that Nunes lied to President Trump or that his communications were responsible for Maguire’s loss of the top intelligence position,” they decided.
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