Rep. Devin Nunes's defamation lawsuit against The Washington Post can proceed, a federal judge ruled on Wednesday.
Judge Carl Nichols of the U.S. District Court for the District of Columbia rejected the Post's motion to dismiss, thereby allowing Nunes's suit to proceed to the discovery phase, Breitbart News reported.
The ruling paves the way for Nunes, California Republican, to seek email and other evidence including depositions of Washington Post employees involved in publishing a story about him that he said contained inaccurate information.
The Washington Post story in question in the lawsuit, published on Nov. 9, 2020, claimed Nunes engaged in what has become known as the “midnight run,” where establishment media outlets alleged Nunes viewed documents critical to uncovering the origins of the Russia hoax scandal in the middle of the night but instead he actually viewed them during daytime hours. It also falsely claimed that Nunes believed the Obama administration spied on Trump Tower in 2016, another inaccuracy as Nunes had previously stated he did not believe that.
The Washington Post added two corrections to the article online, admitting its original story was incorrect.
The multi-part correction reads as follows:
Correction: As originally published, this article inaccurately attributed claims that the Obama administration spied on Trump Tower to Rep. Devin Nunes (R-Calif.), rather than to President Trump. Nunes has stated that he did not believe there had been any wiretapping of Trump Tower. This article has also been updated to note that Nunes says an incident known as the “midnight run” took place during daylight hours.
Nunes proceeded with litigation against the Post and reporter Ellen Nakashima claiming the corrections — the one online and a slightly different one issued in print — were insufficient to resolving the matter, the Breitbart report noted.
In his amended complaint, Nunes's legal team specifically lays out a case for why they say the inaccurate statements the Post and Nakashima published — which they now admit were inaccurate through their correction — rise to the level of meeting the very high standard of “actual malice” set out in the 1964 Supreme Court case New York Times v. Sullivan, which sets the standard for public figures to sue for libel or defamation.
"Nunes, as a sitting member of Congress, clearly rises to the level of a public figure for the intent and purpose of these legal matters, and actual malice is an extremely high standard to meet: the plaintiff must demonstrate that they were made with either a reckless disregard for the truth or with actual knowledge that the statement was false when it was made," the Breitbart report noted.
A key paragraph of Nunes’s amended complaint states: “Prior to publication of the Article, Nakashima knew the Defamatory Statements were false and harbored serious doubts as to the veracity of her sources.”
Judge Nichols stated what Nunes needs to do to win his case: “Later in this case, Nunes will have to establish by clear and convincing evidence that, even in light of the corrections the Post did issue, it published its statements with actual malice. But for now, he has sufficiently pleaded that, in November 2020, the Post published its article with at least reckless disregard of the truth that it had previously reported.”