OA657: Devin Nunes Defamation Suit Against Rachel Maddow Survives Motion to Dismiss. HOW!?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 657. Those numbers are turning fast. And I'm Thomas Person. That's Andrew Torres, lawyer. How you doing?

0:01:22 Andrew: Woo! I am fantastic, still riding the high of all the good news we've been able to report over the past couple of days.

0:01:35 Thomas: Yeah, this has been fun, fun couple episodes here.

0:01:38 Andrew: Indeed. And I got another fun one. This is drawing together a lot of stuff. Do It, not take legal advice from a podcast. I'm a lawyer, but I'm not your lawyer. But, you You know, answers some questions that people have about, you know, how imagine you're us and you'd like to occasionally, occasionally break news.

0:01:52 Thomas: Okay, I'm us. Sure.

0:01:56 Andrew: You'd like to have long form journalism where you're emphasizing certain aspects and really delving into the weeds. How do you do that against a public figure in such a way that does not expose you to a serious risk of a legitimate defamation lawsuit?

0:02:03 Thomas: Okay.

0:02:14 Thomas: Ah, okay. So you're saying like when there's incomplete information, but you still need to break news, how do you not defame somebody accidentally kind of thing?

0:02:15 Andrew: Exactly. Right. Yeah. What, what kind of things do you do? And the object of our lesson here is going to be, uh, Rachel Maddow's coverage of serial litigate you do. You don't, not get more litigious than former congress thing Devin Nunes, who has lost his defamation lawsuits against an Internet cow. And yeah, I mean, it's just a serial frivolous litigator.

0:02:23 Thomas: OK, cool.

0:02:51 Thomas: Let's delve into it. This is good information. I need to know this.

0:02:54 Andrew: Yeah, you do. It also this this story, as we weave together, all the elements will involve just how much of a scumbag Rudy Giuliani is, in addition to being, you know, drunk and flatulent as as the 1-6 Committee took pains to remind us.

0:03:10 Thomas: OK, well, I've let he who is without drunkness and flatulence cast the first stone, Andrew. Drew

0:03:16 Andrew: Devin Nunes, know who he is if you listen to the show, but former California Republican member of Congress who resigned after the 2021-2022 term, uh, to become the CEO of the Trump Media and Technology Group, which is still under investigation by the SEC, um,

0:03:33 Thomas: It that just goes without saying for any trump company like I I imagine the like orientation package for new employees okay and this is uh where this is how you log into your computer oh that's the investigation that we're under like that's just a it's totally normal you'll get used to it it's yeah every it's part of the onboarding packet the fact that any trump company is under investigation for somebody buddy

0:03:48 Andrew: He Yep. Yeah. That's, that's HR. It's my first day. Like, Like, how you shred all the documents. So Nunes, no stranger to defamation lawsuits, including the Twitter accounts at Devin Nunes' mom and at Deven Nunes his cow. How he has sued former Republican Party strategist Liz Mayer over, you know, saying mean things about him on Twitter. When we say has sued the like at Nunes cow account, I mean, that account called him, quote, a treasonous cowpoke who is utterly worthless. Right. Like we are not talking about, you close calls here. Right. We're talking about a grotesquely frivolous abuse of the system.

0:04:44 Thomas: Well plus truth is always the uh get out of jail free card and he is utterly ridiculous let's face it

0:04:46 Andrew: Right. Right. Yeah. In response to being called utterly worthless, Nunes claimed in his lawsuit, I'm not making this up, I am reading word for word from the complaint that, quote, these remarks are part of, quote. An orchestrated defamation campaign of stunning breadth and scope, one that no human being should ever have to bear and suffer in their whole life, end of quote. Quote, yes, that is people being mean to you on Twitter.

0:05:12 Thomas: How did we never cover this as a Law'd Awful Movies this lawsuit jeez I

0:05:20 Andrew: We certainly should have. So he's lost at basically every stage and every connection and continues to go after, you ordinary folks who point out what a buffoon Devin Nunes is on social media. Now exit Devin Nunes for a minute. And enter Andre Dirkhach, okay? I'm not going to try and pronounce his patronymic because I tried three times and you had to edit it out. And all of this information, by the way, comes from Derkach's Wikipedia page and documentation and linked entries, right? Right. So that's that's the source for this. You will become familiar with why I am sourcing these allegations as we cover this story. So who is Andrei Derkach? He's a pro-Russian stooge who is a Ukrainian politician and businessman.

0:06:11 Andrew: So he was a member of the Ukrainian parliament since 1998, serving seven terms in the Ukrainian Parliament. Uh it's not just me saying that he is a pro-russian stooge in 2021 the u.s government labeled him a quote russian agent and sanctioned him for interference in the 2020 u.S. elections yeah a russian ancient is you know pretty close uh and they impose sanctions that you know have gone uncollected uh on Derkach for interfering with the U.S. elections okay the Ukrainian government has sanctioned Derkach for spreading Russian propaganda. In June of 2022, the Ukrainian Secret Service said that Derkach received funds from the Russian GRU, that's the Russian Secret Service, to create private security companies that Russia planned to use to capture Ukraine in connection with their invasion. And the prosecutor general of Ukraine has started a pretrial investigation into, you know, whether to bring criminal charges and which charges to bring against Dirk Hatch. OK, so that's kind of the background. In August of 2020, U.S. counterintelligence chief William Evanina identified Dirk Katch as a key participant in Russian efforts to harm the Biden candidacy in the U.K.

0:06:30 Thomas: Was really hoping they labeled him a pro-Russia stooge like that's an actual designation yeah burisma

0:07:29 Andrew: Uh, 2020 presidential election. The intelligence community analysis released in March of 2021, and again released from the, you incoming uh 50-50 intelligence committee, but by and large information collected in a bipartisan fashion, right, found that Derkach was among proxies of Russian intelligence who promoted and laundered misleading or unsubstantiated narratives about Joe Biden, quote, "to U.S. media organizations, U.F. officials and prominent U.N. individuals, including some close close to former President Trump and his administration." So, you know, again, no collusion, but an awful lot of standing by and letting our geostrategic international enemies fabricate stories on your behalf.

0:08:16 Andrew: So what kind of stories did Derkach fabricate to try and help Donald Trump win reelection and try and torpedo the candidacy of Joe Biden. For example, on October 9th of 2019, Derkach alleged that Joe Biden had been involved in an international money laundering scheme with Ukrainian energy company, say it with me, Burisma Holdings, and the U.S.-based Rosemont Seneca Partners. He claimed that Burisma's payments to four of its board members, including, say with me Hunter Biden, which were neither secret nor illegal, OK, that's that's the line from Wikipedia were, quote, and this is Dirk Hatch's allegations, a sinister plot involving Ukraine's former president Poroshenko. And then Wikipedia notes that his claims were, unquote, mostly ignored in Ukraine and abroad. Broad, the Atlantic Council senior fellow, Anders Aslund, investigating the Dirk Hatch allegations, found them, quote, not credible and the work of, quote. A professional disinformer, end of quote. So spreading deliberately false narratives about Hunter Biden and Burisma. Um, Derkach, of course, met with Rudy Giuliani two months later, December 2019, December 5th, 2019.

0:08:38 Thomas: Hunter biden yeah

0:09:36 Andrew: He met with Donald Trump's personal lawyer, Rudy Giuliani in Kiev, uh, to try and put together a corruption case against Hunter Biden. And now this is information from the treasury department. Rudy Giuliani collaborated with active Russian agent Andrei Derkach, a Ukrainian lawmaker, to spread anti-Biden material during Trump's impeachment. The Treasury Department said that Derkach waged a covert influence campaign centered on cultivating false and unsubstantiated narratives concerning U.S. officials in the 2020 presidential election, including the release of, quote, edited audio tapes and other unsupported information with the intent to discredit U.S. officials, end of quote. So who he is. As Trump's closest allies attempted to cover for pro-Russian stooges like this, what remains of the national security wing of the Republican Party looked on in horror.

0:10:35 Andrew: And we have talked about by that North Carolina Senator Richard Burr. We've talked about him a lot as being the guardian of the apex of Yodel Mountain. Well, in late 2019, the Republican chairman of the Senate committee that was investigating these issues, Ron Johnson, was warned by career intelligence officials that his efforts to basically launder the results in favor of President Trump could be, quote, playing into the hands of Russian intelligence agents looking to spread disinformation, end of quote. And Republican Senator Richard Burr, chair for at then chair of the Senate Intelligence Committee, warned Wisconsin Senator Ron Johnson, key Trump ally, that his investigation could aid Russian efforts to promote distrust in the United States. So, super bad dude.

0:11:26 Andrew: On December 11th, this was kept secret. We did not know this at the time. December 11, 2019, Derkach delivered a package to the House Permanent Select Committee on Intelligence, of which Devin Nunes was the ranking member. It was addressed to Devin Nunes from Andre Derkach Yeah.

0:11:26 Thomas: Re

0:11:50 Andrew: Now, as far as we can tell, Nunes' staff delivered that package unopened to the FBI and sent an email, sent a letter to Attorney General Bill Barr saying, "Oh, hey, package just came in from Russian agent to me." Right. So, OK, it's disturbing that Derkach was like, "Hey, Devin Nunes is a great conduit for Russian disinformation." But, one grudging point to Nunes for, if this is to be believed, turning over that information without looking at it to the FBI. I said this was kept secret from us because Nunes certainly didn't act like the kind of person who turned over treasonous materials to the FBI. Because I think, again, this is solely speculation on my part, I think he knew

0:11:48 Thomas: Treason and why

0:12:36 Andrew: Having to explain, like saying, hey, I turned over the stuff that the pro-Russian stooge secret agent sent to my address kind of prompt the question of like, well, why are Russian intelligence agents sending you information packets? Yeah, happens

0:12:48 Thomas: Did they do that it's weird I don't has that ever happened to you andrew do you have you I don'T THINK I'VE EVER RECEIVED ANY PRO RUSSIA STOOGE PACKAGES TO MY DOMICILE

0:13:01 Andrew: Rarely. And so at this point, Democrats had retaken the House, and so the House Intelligence Committee held an open meeting. At that meeting, Representative, now former Representative, Sean Maloney from New York, asked Nunes two questions. First, Maloney asked if Nunes had received any materials from Derkach. And second, Malony asked if, in the event he had received materials, whether he was prepared to share them with the committee. When asked if he wished to respond to the questions, Nunes declined.

OK, so that was a matter of public records. Nunes said, I'm not cooperating with this Democratic investigation into whether I received information from a Russian asset. Said right, all we knew at time that, uh, and then, uh, March 10th, 2021, the National Intelligence Council declassified a report that was titled Foreign Threats to the 2020 U.S. Federal Elections, that was from the office, uh, of national, uh, intelligence, right, the DNI report, the DNI reports stated that Derkach sought to use prominent Americans, quote, launder their narratives to U.S. officials and audiences. And the report also stated that Derkach provided materials to individuals linked to the Trump administration and attempted to contact several U.S. senior officials. OK, so that's March 10th, March 18th, 2021. Rachel Maddow goes to press. And, right, she discussed, as we often do on the show, that document. Right.

Being able to look, look at the declassified DNI report, weaved it into a long form segment, kind of like what we're doing here, about Dirk Hatch, about Russian disinformation and about the ongoing efforts that were present in 2016 and present in 2020 that reflected active efforts by our geostrategic enemy, Russia, to first elect and then reelect President Donald Trump and to discredit his

0:13:02 Thomas: YEAH

0:14:57 Andrew: As a result of that broadcast, Nunes sued Rachel Maddow. And I want to cut to the chase, because you may have read somewhere that he won. And unlike, being you technically correct as the best part of correct, me explain what he, quote, won. On, uh, and

0:15:16 Thomas: LET'S TELL HIM WHAT HE'S WON TO

0:15:19 Andrew: And look, this should serve as a cautionary tale to to us and to people like us who want to who want to to break news or comment, uh, on news in in long form journalism, and and it is a reflection of the fact that defamation lawsuits are really really difficult to get rid of on motions to dismiss unless you have companion robust anti-slap laws, right?

0:15:24 Thomas: ALL RACHEL'S MADDOW ALL RIGHT YEAH Yeah.

0:15:42 Andrew: This lawsuit was filed in the Southern District of New York, right, the U.S. District Court for the Southern District of York, pursuant to New York law. And New York does not, yeah, not the same level as, California, for example. Nunes' complaint alleges that three statements from that Rachel Maddow broadcast are false and defamatory. And those statements are as follows. Statement number one, Andrei Dirkash is sanctioned by the U.S. government as a Russian agent. He is singled out by name by the director of national intelligence as someone under Vladimir Putin's direct purview who helped run this organization targeting our election last year. Congressman Nunes accepted a package from him. What was in it? Statement two, Congressman Nunez has refused to answer questions about what he received from Andrei Derkach. He has refused to show the contents of the package to other members of the intelligence community. He is refused to hand it over to the FBI, which is what you should do if you get something from somebody who is sanctioned by the U.S.

0:15:51 Thomas: Does New York not have, really? They don't have good anti-slap stuff? Huh.

0:16:41 Andrew: As a Russian agent. Statement three. Still, the Republicans have kept Mr. Nunes on as the top Republican on the Intelligence Committee. How does that stand? How does datestay a thing?

So now the punchline of those three statements, you know comprising comprising 147 words all but 10 are fine okay absolutely completely fine on the basis of reasonable investigating and reporting and I thought it might be interesting to take a look at how a court goes about parsing a defamation lawsuit like this when you are admittedly like Rachel Matthews or talking about something of of really if not first impression yeah like you're the first people to do you know like what we do, hey, I read this whole 600 page report and I want to tell you what's in it, it's part right of why I love Rachel.

I really miss not being able to watch the Rachel Maddow Show, but don't, I don't watch, we've talked about this before, I know, I uh I I don't want to because I don't want to influence our coverage, but I love Rachel Maddow, I like Chris Hayes a lot. So the absence of a specific anti-slap statute, a court is going to look at this under a standard Rule 12 b6 motion to dismiss, and to do that, the complaint must contain sufficient factual matter, if accepted as true, sufficient factual allegations, if accepted it is true, to state a claim to relief that is plausible on its face, okay, that's the Ickball and Twombly standard of

0:17:40 Thomas: Yeah. I watch zero, zero cable news.

0:18:12 Thomas: Yeah, right.

0:18:13 Andrew: Yeah, of whether you've, you construe all alleged facts in favor of the plaintiff and then you say, if everything you've said here is true, does it state a cause of action. So a court assessing the sufficiency of a complaint must disregard legal labels or conclusions, which, which are not entitled to a presumption of the truth. So in other words, you can't evade this by saying Hillary Clinton or Rachel Maddow defamed me, right? That's, you're not, you know, right.

0:18:42 Thomas: Well, stipulated as true. I gotcha.

0:18:45 Andrew: Instead, the court must examine what we call well-pleaded factual allegations and then determine whether they plausibly give rise to an entitlement of relief. That is, they meet the elements of the claim that they're offered and supportive. Court of so does it mean to be well pleaded? Good question, right, it's it's there's kind of a feel standard to it. Right, it's the kind of the vibe of the thing. Dismissal is appropriate when it is clear from the face of the complaint and matters of which the court may take judicial notice that the plaintiff's claims are barred as a matter of law. What's a kind of thing of which the court may take judicial notice?

Well, that is any facts that are alleged in the complaint, complaint, any documents that are attached to that complaint, anything that is necessary to understand kind of that, that we, we call that, again, the the eight corners rule, right? Like the the four corners of the document are just what does the complaint say, and then the four quarters of any additional document that are attach to it, right, and you can take judicial notice of things that are true. So, so, for example, if the allegation says, know, under the blazing sun at 2:15 in the morning, you know, Andrew Torres broke into my house, right?

0:19:04 Thomas: The vibe of the thing.

0:19:54 Andrew: Like the court could strike, could legitimately strike that, right, and say the court takes judicial notice of the fact that at 2 15 in the evening, the court the middle of the night and it's dark and there's no sun. So this allegation is nonsense. We are not going to pretend like the sun is out at 2 2.15 in the morning for purposes of a well-pleaded complaint, right? Have to plead a plausible claim of action, right, can't just assert the law and you can'T assert things that are contrary to fact, But right. In adjudicating a motion to dismiss, a court takes no account of the complaint's basis in evidence otherwise and may review only a narrow universe of materials. And again, yeah, yep,

0:20:29 Thomas: Right. This all makes sense. That's pretty reasonable. It's like, all right, we're going to give you the best interpretation just to see, because at this stage is dismissing. This is, this is what it would take to not even get your day in court at at all. So it makes sense that there's pretty high standard there, but there's also the qualifications that's like, well, you can't just allege stuff that's physically impossible and then make us take that and grant that for you, right? Did you have that right?

0:20:55 Andrew: That's exactly right.

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0:22:49 Andrew: So the very first step in trying to figure that out is first asking, is this alleged defamatory statement the kind of thing that can be defamation, right? We've and we've talked about this. So this is might be a test of our new standards. But, you know, for example, if I say, Thomas Smith is an asshole. I never say that.

0:23:08 Thomas: Sure, sure.

0:23:09 Andrew: However hurtful that is. You can't sue me for defamation for that, because that is not a statement that is capable of being proven true or false. You're Right. An asshole as a matter. Or so so How do you go about assessing whether a statement is capable of defamatory meaning at all? Right, that's sort of the first level, um, and the way in which you do that is by, uh, and again I'm reading here from the court's opinion, looking at the full context of the communication in which the statement appears, and defamation is the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.

0:23:19 Thomas: You could probably prove that, honestly. Wouldn't be that hard.

0:23:57 Thomas: I'd like to have some friendly intercourse in society. Sounds nice.

0:23:59 Andrew: The elements are a false statement published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, obviously higher here because we're talking about a public figure, and it must either cause special harm or constitute defamation per se. So those, are the elements, right? Defamation per se, uh, are things that suggest improper performance of one's professional duties, unprofessional conduct, having a loathsome disease, we've been down that category before, yeah, a lot. So, as a result of that, that's what has led to the sort of common aphorism in public circles of, you truth is an absolute defense to defamation. That's exactly how this court or how I would put it. Right. This court puts it. And again, remember, this court is analyzing New York law, but this is substantively similar to the law of defamation virtually anywhere in the country. And as you can imagine, lots of New York case law has

0:24:26 Thomas: Yeah, yeah, I love that one.

0:24:39 Thomas: Mm-hmm. Hmm. Okay. Yeah.

0:24:58 Andrew: Built up because of the New York Times. Right? So, for example, what one New York appellate court said: because of the falsity of the statement is an element of the defamation claim, the statement's truth or substantial truth is an absolute defense. Oh, what's a substantial truth? A right statement is substantially true if the statement would not have a different effect on the mind of the reader from that which the pleaded truth would have produced.

0:25:23 Thomas: Hmm. Okay. That's an interesting standard. I like that.

0:25:23 Andrew: Right. So, How do you figure that out? Courts typically compare the complained of language with the alleged truth to determine whether the truth would have a different effect on the mind of the average reader. When the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of defamation, no legal harm has been done. Okay.

0:25:33 Thomas: Sure. Right. I like that.

0:25:48 Andrew: Yeah, um, and then also, you know, statements of pure opinion are privileged. I don't think I have to unpack that. So, for example, that first statement, which concludes with the line, Congressman Nunes accepted a package from him what was in it, from Derkach of accepting a package from Andrei Derkach. The complaint of statement was as follows. Andrei Derkach is sanctioned by the U.S. government as a Russian agent. He's singled out by name. Again, this is Rachel Maddow talking. As someone under Vladimir Putin's direct purview who helped run this organization targeting our election, Congressman Nunes accepted a package from him what is in it. NBC says, yeah, that's substantially true.

0:25:51 Thomas: Sure. Yeah.

0:26:33 Thomas: Mm-mm.

0:26:33 Andrew: What do we mean by substantially true? Well, Nunes says, I never personally accepted the package, but, House you Intelligence Committee and my staff member received it and took it to the FBI. So you can't say I that accepted the Package.

0:26:46 Thomas: Hmm. Yeah, so that's what I was suspecting was going to be the key there based. If somebody it and then, sent it to the FBI and it wasn't even Devin Nunes, I don't know. I do kind of think that isn't quite fair to say he accepted a package from, you Russian whatever. I think if we were to do that test of like, okay, how would sub in the actual truth or whatever and see, or the alleged truth, and see the different effect, I think that might have a different effect. If you say, this person accepted a a package from Vladimir Putin or whatever versus this person was sent a package and their staff just turned it in the FBI, I think that's pretty different really.

0:27:25 Andrew: It's interesting because the court comes to the opposite conclusion. The court says that it is substantially true. It does not make a difference to say Nunes accepted the package or Nunes' staff accepted the package. Staff acts as an extension of you. We understand when we say Nunez did X that you might mean NuneZ's office did X. Who Right. Know? And this is not I'm going beyond the opinion now. But, you who knows which tweaks were personally written by Devin Nunes and which were written by like his sarcastic assistant who, you know, you write stupid tweets. Right.

0:27:28 Thomas: Okay. Yeah. I guess I was focused more on the fact that like accepted makes it sound like you just received and opened and read the contents and whatever, I guess I was focusing more on that distinction rather than just like they got out a package and turned it into the FBI. Oh.

0:28:12 Andrew: Yeah. I think And if it drilled down, if Rachel Maddow had used word a other than accepted, right, that that could have been a problem. But Right. Accepted just means that the the mail arrive, accept right? A certified letter, even if you really don't like the contents that they're in, right. It's just a question of, did that package arrive at your desk, right, was this sent to you?

0:28:27 Thomas: Okay. Oh. I might just have the wrong idea of these because I would think that's like receiving versus accepting sounds more like some sort of endorsement of it but no I think you're right, I think I had the wrong kind of connotations there, so now I see that makes sense.

0:28:37 Andrew: It does sound, I agree that it tends to, that's statement one is substantively, substantially true. Other element of that is actually true. Derkach is sanctioned by the U.S. government as a Russian agent. He is singled out by name in the report as someone under Putin's direct purview. He did help run the organization that interfered with our elections. And it is substantially true that Nunes, through his office, accepted a package from him. What's in it? All right. So that's statement one. Nunes also says statement two is incorrect in that it says Congressman Nunes has refused to answer questions about what he received from Derkach. That that, of course, is absolutely true. He has refused TO SHOW THE CONTENTS.

0:29:17 Thomas: But now it said received, though. Hmm.

0:29:23 Andrew: Yeah. Well, and again, think about that. Think, like, about our show. I I may have except down in my notes, but as I'm giving you an off-the-cuff answer to a question, I might insert received, right?

0:29:23 Thomas: Yeah. Right. But like. I just want to make sure I have the facts correct. Nunes wouldn't actually know what he received, would he?

0:29:40 Andrew: It is correct, and again, remember, we don't know, right, we have we have Nunes's words in his complaint that this thing came into his office and his staffer immediately took it to the FBI without opening it and that he wrote Bill Barr a letter.

0:29:43 Thomas: We don't know. Uh-huh. Okay. But you're free as a journalist to be like, I don't believe that?

0:29:56 Andrew: You're absolutely free to say, I don't believe that. And we're going to talk about that in a second. But you're also free to draw adverse inferences from a congressional committee tried to ask you questions and you declined. And here, Nunes says that the defamation is he has refused to show the contents of the package to other members of the intelligence community.

0:29:58 Thomas: Okay. Okay? Hmm.

0:30:18 Andrew: And his argument is intelligence community means the independent bureaucratic apparatus, including the FBI. And I gave it to the FBI and I told the attorney general, I just wouldn't give it to Congress, right? NBC's argument is Nunes's refusal to the intelligence community is substantially fair because that would include the intelligence committee, the House Intelligence Committee. And, quote, the difference between intelligence community and intelligence committee would not change the statement's effect on a reasonable viewer. And I think that's absolutely true as well. In Other words, you you've used a word that indicates that that Nunes, you know, refused to talk to the House Intelligence Committee. And is it fair to describe that as other members of the intelligence community? Sure, that's fair to prescribe it that way. I'm going to skip over, I've already flagged for you, the refused to hand it over to the the FBI, and get to statement number three, which is still the Republicans have kept Mr. Nunez on as the top Republican on the Intelligence Committee.

How does that stand? How does that remain a thing? Um, and and again, obviously that is uh a protected opinion. As the court notes, the complaint does not plausibly allege a defamatory meaning to rhetorical questions, questions. And so, you know, the complaint says that Nunes did not violate any rules, so therefore there was no basis to question him, so therefore those statements are defamatory.

0:30:54 Thomas: Hmm. Okay,

0:31:49 Andrew: And the court's like, you're in here suing for defamation all the time. How do you not know this by now? So now the question is, and here's where the court very, very narrowly says, of all of that stuff, right? What is potentially defamatory for purposes of surviving only emotion to dismiss is that Nunes refused to hand it over to the FBI when Nunes alleges, I handed it over to the FBI. And what comes into play here are two separate things, okay? The first is that on her her show, Rachel Maddow credited a report from CNN. And that report from CNN the following. Devin Nunes declines to say whether he received foreign information meant to damage Biden. The information in question pertained to packets reportedly sent to Republican members of Congress, including Nunes, by Ukrainian lawmaker Andrei Derkach. Nunes declined to say at a closed door meeting, whether he had received foreign information. That was a the CNN article that Rachel Maddow credited as

0:32:09 Thomas: Motion to dismiss. Yep, yep.

0:32:58 Thomas: Hmm,

0:32:59 Andrew: Her source on the, on that show. Now, at the same time, and also raised, uh, as an exhibit to their motion to dismiss miss was a July 23rd, 2020 Politico article. It had the headline, "Democrats: Packets Sent to Trump Allies Are Part of Foreign Plot to Damage Biden." And the article described concerns of top congressional Democrats, including Sean Maloney, right? That packets were mailed to prominent allies of President Donald Trump, including Nunes and then White House Chief of Staff Mick Mulvaney. The article then included the following passage, so right in talking about the delivery, it said, "The packets described to Politico by two people who have seen the classified portion of the letter were sent late last year to Devin Nunes, Lindsey Graham, Chuck Grassley, and McMulvaney. The packets were sent amid a Democratic push to impeach Trump over his effort to pressure Ukraine's president to investigate Biden and his son Hunter. Graham and Grassley denied having, having received the material,"

0:32:59 Thomas: For that claim. Okay.

0:34:01 Andrew: And Mulvaney and Nunes declined repeated requests for comments. And then this is word for word sentence in the Political article. "One person familiar with the matter said the information was not turned over to the FBI. The FBI declined to comment." So Rachel Maddow's argument was, "Look, this Devin Nunes, he's a member of Congress. He alleges now that he did turn it over tothe FBI. But in compiling this segment, among the sources that I looked at were this Politico article that said nothing was turned over to the FBI.

So it was reasonable for me in journalistic integrity to rely on that reporting that had been done by Politico and repeat the allegation that, as, quote, 'he has refused to hand it over to the FBI,'" that's not a terrible argument, right, as again, as somebody who thinks about these things when we put together segments like this, right? Here's what the court says, right. The court says drawing every reasonable inference in favor of the plaintiff in front of Devin Nunes as the non-movement, the facts in the complaint plausibly allege actual malice as to the assertion that Nunes has refused to hand it, that is the dirt catch package, over to the FBI. The speaker, Rachel Maddow, did not attribute that statement to any source, including the Politico article submitted by NBC on this motion. The

0:34:55 Thomas: Hmm-hmm.

0:35:24 Thomas: Hmm...

0:35:24 Andrew: CNN article, shown and cited on screen, did NOT speak to the issue of whether Nunes refused to give the... At the Rule 12(b)(6) stage, the court cannot draw the factual inference that the speaker or others responsible for the segment had knowledge of the Politico article and based the statement on its contents. While it is plausible that the statement was made with knowledge of that article, the complaint also describes why the statement plausibly could have, have been made with knowledge of falsity or reckless disregard as to the same. A court does not weigh competing plausible theories of actual malice on a motion to dismiss. Therefore, the motion to dismissed the defamation claim based as to final sentence of statement two will therefore be denied.

And that brings us sort of full circle to the lesson, If right? Rachel Maddow had put that Politico article on the screen, then this case would have been dismissed outright in on that motion to dismiss, notwithstanding how difficult it is to maintain a motion to dismiss because she cited to an article on the screen and said, hey, I'm getting this information from this CNN reporting and that underlying CNN reporting did not speak to the FBI at all. Right. Then it's plausible because remember, the actual malice standard is either knowing falsity or reckless Reckless disregard for the truth. Well, no there's no allegation here. Ironically enough, that that matter was reckless in her disregard

0:36:17 Thomas: Ah, interesting.

0:36:53 Thomas: Hmm.

0:36:53 Andrew: For the truth, right? There's nothing about her failure to because reckless disregard for the truth means complete disregard for journalistic standard, you know, means being info wars, right, like, oh, not for much longer, my friend, it is plausible if Rachel Maddow had never read that Politico article. Right. And had absolutely no knowledge at the time that refused to turn it over to the FBI and that Congressman that Nunes in fact turned it over Which, again, I want to emphasize, we still don't know. Like, I can't say this right now that I know that he did turn it over to the FBI. I know he pled that in his complaint.

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0:39:09 Thomas: Go to bombas.com slash opening arguments and use code opening arguments for 20% off your first purchase. That's bombas dot com slash opening agreements, code opening for 20% off bombas.com slash opening arguments, code opening arguments. That's interesting. So I know that we're at the, you stage where you grant everything in the whatever. But when this goes or when or if this went to actual trial, how do you deal with something that's like, you confidential? I think we've had this question before, like how if if it turns out that for whatever reason, the the inflammation of whether ou not he turned It over to the FBI. If that is something, let's say, that is just part of like government secrety stuff that we can't know the answer to, how do you have a defamation trial with that, about that?

0:39:46 Andrew: So that really good question. Um, and you would do a couple of things. Number one, uh, you could provide that information to the court under seal, assuming that the court is authorized to see it. Um, it certainly makes it a challenge, and this is one of the things that is going to come into play with, uh, public coverage of the, you know, know, continuing Nara Lago disaster is, you know, how do you describe a document that remains, you subject to a security classification?

0:40:27 Thomas: Yeah. Well, and not only that, how can you say, hey, Rachel Maddow, you acted with disregard for this thing that we had to like secretly tell a judge. Like you couldn't have known this. You literally couldn't have known it. So how do you say therefore you were not only wrong but reckless in what you said?

0:40:46 Andrew: And that's right. And look, the underlying fact is either true or false, right? Either Nunes turned that packet over to the FBI or he didn't. If Nunes didn't turn that packet over to the FBI, right, and that's what the evidence establishes on discovery, then court will dismiss out the case right on summary judgment. You'll move, you'll say, in light of, uh, you know, this court's 11 28 2022 order, the sole remaining potentially defamatory allegation was, uh, concerning refusal to hand over to the FBI.

The undisputed evidence now establishes that Nunes in fact refused to hand it over to the FBI. That is substantially true, so we want out on summary judgment, uh, and they would get out. But but the question is, what if the plaintiff does nothing because that information itself is classified or not in their hands or whatever, they can't. Well, remember, the plaintiff bears the burden of proof, right? On a motion to dismiss, you construe all factual inferences in favor of the plaintiff. But if if you go through the entire discovery process and you produce zero documents to the other side or to the court, even under a protective order or, you know, however, all the myriad ways in which you might expose the court to that material without, causing a problem, right, without compromising documents, if at the end of the day you put out no evidence, this is a perfect example of where a motion for summary judgment is appropriate. That is to say,

0:41:38 Thomas: Yeah. Okay. Yeah.

0:42:15 Andrew: There is no longer a disputed factual question because you have adduced nothing. No evidence. Like, just saying. Yeah, I

0:42:21 Thomas: Okay. So That seems like a better fit for what's going to happen because the fact that we don't even know yet, and we can't even point to this, the truth or falsity, is of that claim, seems to be pretty strong evidence that Rachel Maddow could not have have defamed him by saying this. Like, we don't even have the truth.

0:42:25 Andrew: Think that's right.

0:42:39 Andrew: Think that's right. And I would add one more component, which is all Rachel Maddow has to do to win out on summary judgment is to testify and to have no statements that contradict her testimony, that in the scope of her research in preparing for the article that she read the Politico article and that that is, yep,

0:42:53 Thomas: Yeah, and I imagine that in the process of prepping for those shows, I'm sure there's plenty of documentation of that kind of thing

0:43:05 Andrew: Yep. Yep. If if there is. But But I want to point out, you would not be incumbent upon because you can remember Rachel Maddow is the defendant here. Rachel Maddo does not have to produce an email from, you know, staffer number seven. Hi, staff or number seven, we know you listen to the show from staffer, number seven that says, oh, hey, I've attached the political article here for summary. Right.

0:43:06 Thomas: Right. Oh, I see

0:43:26 Andrew: That would be great.

0:43:22 Thomas: Right. She just, it just can't be proved the other, like she's just in trouble if it's proved definitively the other way. Okay.

0:43:29 Andrew: It just can't be proved the other way. Yeah, that's exactly or again, not definitively more likely than not. Right. Remember, civil case.

0:43:33 Thomas: Oh, more likely okay. Okay, gotcha.

0:43:38 Andrew: So it's preponderance of the evidence if it is just so. Let's break this down. Assuming that this remains the sole disputed issue. Assume that Nunes is able to establish that he did, in fact, hand over the dirt catch package to the FBI. So then the sole issue is, was Rachel Maddow reasonable in her reporting at the time, even though that turned out to be false, right? Is it covered by a news gathering privilege that you could rely upon? And the analysis would then be, would essentially break down as follows. If Rachel Maddow testifies, I absolutely saw the Politico article, but has no supporting documentation whatsoever, but Nunes has absolutely no documentation to impeach that statement, right, and no reason beyond kind of a bare allegation of, well, you know, she could be lying, right? Then I think that is the kind of situation that a court could resolve on summary judgment and would say there is no dispute as to the fact that Rachel Maddow reviewed the

0:43:38 Thomas: Okay. Okay. Yeah. That's

0:44:41 Andrew: Article that

0:44:41 Thomas: What I was going to ask. So, like, in this more likely than not paradigm, if we have an issue that the only evidence either way is she says she did, you say she didn't. It feels to me like definitionally you could never say that. Okay, well, there you go. It's more likely. I mean, unless you had some way of, like. Like, you establishing credibility in a general sense or something.

0:45:03 Andrew: That that's that's exactly right. Right. Now, what what if you had nothing to the contrary, right? Suppose you have nothing specific. Something that might help you survive a motion for summary judgment would be if you add some other piece of evidence indicating that there is a reason to believe that, you MSNBC's on air talent will exaggerate or retroactively date. Right. Like if you had an email from staffer number seven to staffer number six, you know, that says, gosh, I hope, you know, Rachel remembers that we always lie when we're on the stand or something. Right. You know, you might have something like that.

But otherwise, yeah, the court would say, and you've seized on exactly correctly that, that what preponderance of the evidence means, that the court would say you might believe or disbelieve one person's testimony, but you would have no grounds to say that it is more likely than not that X piece of uncorroborated testimony is more true. You could say it's exactly as true. Right? They're both uncorrobarated, uh, but you would have no basis in fact for saying, uh, that it is more likely than not, and therefore this is not a disputed issue of material fact just because you say it is. Right? Like to

0:45:54 Thomas: Yeah. Yeah. Okay.

0:46:19 Andrew: Dispute it, you have to have a scintilla of evidence, right, the smallest conceivable portion of evidence that supports your interpretation over their interpretation, and we've, you know, talked about what some of those might be, right? A supporting piece of evidence might be inconsistency in Maddow's testimony. And how would you get that out? You could get that out at a deposition. So I'm going to show you, Ms. Maddow, what's been marked as plaintiff's exhibit 17. Do you recognize this? Yeah, this is a Politico article dated July 17th, 2020. Ms. Mado, did you rely upon this in crafting your story? Yes. How do you know that? And then she says, well, you know, because I at

0:46:57 Thomas: Because I looked at the clock and I was wondering where'd that political article go with the shot off shotgun and it's handed. Right.

0:47:04 Andrew: 7.15 in the morning, you know, and she might say, well I read Politico every day, and then I would ask on cross-examination, right, but this was a year earlier. Can you be certain that you reviewed this article in connection with a story that you did a a year later? Yeah, well, because I write down my sources on on X particular information. Oh, have you produced that written document? No, I haven't. Or right, right. I might ask, uh, determining which sources. Right, we definitely. You put the CNN article on the screen, Ms. Maddow? That's correct. Right. Yes. So how did you know to put that CNN particle on the street? Well, well, I sent an email to my producer saying, let's credit CNN. Did you send an email? Do your producer saying let's create a Political? No. Did you spend any email to your producer on X day that involved Political?

0:47:52 Andrew: No. So that would be a good way of establishing and notice, by the way, again, I'm giving more free cross-examination tips. Notice that I don't ask the question too far there, right? Which would give Rachel Maddow the opportunity. So how do you know then that you relied upon the political article, right, and then I'm, I stop off where, uh, I can establish my inferences. So lots of different ways that you might try and discredit her testimony. So, uh, from a practical basis it might not be the case that that it would go through uncorroborated, but you that's sort of how that that is going to break down. And to me, I mean, I think this is, you, it's annoyed to NBC, uh, that they're going to have to, uh, produce discovery and incur some additional legal expenses on this, but that this, you like every Devin Nunez defamation claim, this is not long for the world, I think, so.

0:48:02 Thomas: Yeah. Yeah. Yep. Yep. Right. Right.

0:48:41 Andrew: But, um, but it gives you, again, right, let's coalesce sort of down to the message as we bring the show to a close. If you're breaking long form news, right, it behooves you to make sure that you can document and you can show to a potential litigant, hey, here are the contemporaneous sources upon which I've relied in preparing this report, right? Here's what I added that was novel. And it's why I always say, you know, when we break news, we do it because I have access to a document and I'm able to go through and read that document and say, it says X. And And from a legal perspective, that means why, because then I'm not relying on, you know, Politico's reporting or NBC's reporting. But I am entitled to rely on that so long as I describe that.

0:49:28 Andrew: So that was why to kind of go back to the foreshadowing. That's why I began all that potentially defamatory stuff I said about Andrei Dirkhach being a Russian stooge. I gave my sources for that. Right. That's Wikipedia and the and the linked articles from within Wikipedia. That's more than sufficient, uh, for a public figure to survive against a claim of actual malice in this, uh, kind of context. And, and if Rachel Maddow had just put the political article on the screen, right, she could have said

0:49:53 Thomas: Could have saved quite a bit of legal fees.

0:49:55 Andrew: Yep, yep, yep, we would be done, we would be out. So, uh, don't take legal advice for a podcast. I'm a lawyer, but I'm not your lawyer. That, cite your sources, oversight, if, if you have to, uh, that's always a good lesson.

0:49:57 Thomas: Yeah.

0:50:08 Thomas: So if you saw reports that were like, Matt Al loses in this case, you know, or or Devin Nunes wins or anything, anything that gave you that indication. What has really happened here, just to sum up from my non-lawyer perspective, is in this first stage, this motion to dismiss stage, which we've covered a bunch of times, is you want to decide everything. You want to stipulate everything as favorable to possible, possible. In that phase, there was one point on which Devin Nunes, the court was forced to say, yeah, all right, I guess if we stipulate everything in his favor, then there could be defamation hypothetically here. But you're predicting that this isn't something that's so potentially meritorious that it would go all the way to like a trial and all that. It's going to be dismissed in like basically the second phase of things,

0:50:58 Andrew: The summary judgment stage, yeah, I think That's

0:50:59 Thomas: Yeah. So So wait, when is the summary judgment? I don't remember.

0:51:01 Andrew: Correct, uh, it depends. You can file a motion for summary judgment at any time, uh, in fact it is common for defendants to file their motion to dismiss as a motion to dismissed and then you put in a footnote. If the court finds it necessary to convert this into a motion for summary judgment, you please do so. I file that all the time. Court responds to that? It says the Politico article is not cited or referenced in the complaint, nor is it cited or referenced in the segment, because the article goes beyond the pleadings, and the materials that are integral to the pleadings, right, that's the four corners rule, it is not properly considered on a motion to dismiss. And on this bare record, the court declines to convert the motion to one for summary judgment.

0:51:19 Thomas: Interesting.

0:51:45 Thomas: Right.

0:51:45 Andrew: So they could have. They had the opportunity to do that.

0:51:47 Thomas: But you would need, I was actually going to ask before you read that, how would it just auto convert to summary judgment given like just based on maybe the burden shift rule, but like, yeah. Okay. So they're saying there's nothing, we don't have enough here to be able to just convert that to a motion for summary judgment.

0:52:03 Andrew: But the predicate that is there. If either the complaint, which would have truly been an own goal, but you know, Devin Nunes scores a bunch of those, right? Or if the underlying segment itself to what is being referred as the basis for the defamation, had listed the Politico article, then even though that might have potentially been a fact, right, they would have said, "OK, you you have said factually that you did, in fact, hand it over to the FBI. And that what is defamatory is the statement that says you refuse to. We now know as something that is integral to these proceedings that other news outlets were saying the same thing at the same time and in fact were sourced as the origin of that claim at the time the statement was made. Therefore, this is protected by ordinary journalistic privilege and you would get out. And again, I don't think you would have to convert it to a motion to dismiss. Yeah, it

0:52:11 Thomas: Yeah. Yeah.

0:52:56 Thomas: So I was going to say, yeah, that's what I was trying to get at is, but wouldn't that just be the normal motion like you would have just dismissed?

0:53:03 Andrew: Is.

0:53:04 Thomas: I'm trying to understand like how, what's a scenario where this do the motion to dismiss, the court would say, well, no, no on that, but yes on we will convert this to a summary judgment and it will Work? Work.

0:53:15 Andrew: Yeah, I'll give you a real life example from my practice. The complaint is a complaint for breach of contract. It attaches the contract and says, hey, you promised to deliver a thousand pounds. I'm now I'm this was settled, so I'm Obscuring the details. But, you know, you promised to deliver a thousand pounds, a thousand pound of corn to our grocery store on April 5th. You didn't. We're attaching the contract that proves that you agreed to do that.

And, you know, the court will construe in our favor our allegation that you didn't deliver the corn, and then I, uh, write a motion to dismiss, and I attach there to uh, an affidavit from my client that attaches an email that attests to the validity of an email from the plaintiff, uh, that is dated April 5th, that says, "Oh, hey, we don't need that thousand pounds of corn uh this week.

Feel Feel free, you know, to resume next week." And so the court would then look at it and go, "OK, this is clearly an extrinsic piece of evidence. This is an email." But in the absence of, you know, a reply from the plaintiff going, "That's not my email.

0:53:36 Thomas: Sure. Okay.

0:54:26 Andrew: I didn't send that. They're making it up." You would say, okay, the the facts of the matter contradict that assertion that, you know, you you didn't ship out the corn because plaintiff told you not to ship out the corn. So,

0:54:41 Thomas: But it sounds like they would still get a chance to respond to that.

0:54:42 Andrew: They Would get a chance to respond to my my pleading. Yeah, that's right. There's no. There's no se kick case in which you would convert one into a motion for summary judgment and not give the plaintiff a shot, right? Like that's you know that's getting your day in court is all about. Yeah.

0:54:44 Thomas: Okay. Right. Gotcha. Yeah. Right. Right. Right. Okay. Gotcha. That makes sense. I was because otherwise I was wondering how it would, like, suffice for the second one but not the first. But okay, that makes sense. Interesting. Yeah.

0:54:57 Andrew: Yeah. So that would be a fact that comes in, but it's such a dispositive fact that the court's like, "Yeah, okay, we're gonna," and

0:55:10 Thomas: Barring some contrary evidence that you could present in a reply. Lie this is a summary judgment, cool. Right. Well, I love that deep dive, so just goes to show Devin Nunez is still an idiot and we'll still lose, but but always, uh, always cite your sources and And of course, Andrew, we've got one whole day off until you're going to hear from us again with that. It sounds like I'm done, messed up and released the episode early last week. We're still getting our handle on this new schedule, but in general, you will hear from us Wednesday night slash Tuesday AM and then Thursday night slash Friday AM for the next two. So that's what you can expect for the rest of the week. Thanks so much for listening. We'll see you then.

0:55:11 Andrew: Yep. Exactly right. Exactly. Right. Yep.

0:55:54 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

0:56:28 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.

0:57:03 Andrew: Andrei Leonard, Leonardo, Andrei Dirkhach, okay?