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Devin Nunes’s quest for vengeance against media companies who hurt his wee feefees has largely been in vain. His cases against CNN, McClatchy, and the Washington Post have all run aground, as has his longstanding quest to sue a Twitter cow. But yesterday a court in New York gave him a win of sorts in his defamation suit against NBC for comments made in March of 2021 by liberal host Rachel Maddow.
While US District Judge Kevin Castel, a George W. Bush appointee, dismissed the case as to two of three allegedly defamatory statements, he found that the former Republican congressman had plausibly alleged that one of Maddow’s statements was both false and made with actual malice under the New York Times v. Sullivan standard.
The case, which was originally filed in Texas where no party resides, concerned a story about Nunes receiving a package in December of 2019 from Ukrainian politician Andriy Derkach, who was later sanctioned by the US government for trying to influence the election by falsely smearing Joe Biden.
Giuliani meets with Ukrainian lawmaker Andriy Derkach in Kyiv, Ukraine, Thursday, Dec. 5, 2019. Photo provided by Derkach’s press office.
Later Nunes released an email demonstrating that he immediately turned the package over to the FBI, but at the time he refused to comment, perhaps loath to discredit the smear operation that Trump’s lawyer Rudy Giuliani was conducting on the future president and his son Hunter Biden.
Maddow’s allegedly defamatory statements suggested that Nunes “accepted a package” from Derkach, that he “refused to hand it over to the FBI,” and that “Republicans have kept Mr. Nunes on as the top Republican on the intelligence committee.” The court dismissed the complaint as to the first and third statements, because they were quite clearly true. As to the second, Nunes points to a Breitbart story quoting Rick Crawford, a Republican member of Congress, as saying:
Here’s the thing: it’s standard practice that if you get a package from unknown source in a foreign country, it’s probably a good idea to call the FBI and let them handle it and not handle those packages and don’t open them and go, ‘Hey I wonder what this is? I guess it’s Christmas came early this year.’ No, you follow the protocol, which is you turn that over to the FBI. That’s what happened.
NBC counters with a Politico story suggesting that Nunes had not turned the package over to the FBI. But since that wasn’t in the original pleading, the court will not consider it yet: “NBCU’s argument about actual malice relies on factual inferences that go beyond the pleadings and the segment.
“This 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 integral thereto, it is not properly considered on a motion to dismiss,” Judge Castel went on. “On this bare record, the Court declines to convert the motion to one for summary judgment.”
It’s a victory, albeit perhaps a temporary one, for the former congressman. So, congrats little Cowpoke. You finally won a round!
Nunes v. NBC Universal Media, Inc. [Docket via Court Listener]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
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