OPINION: This article may contain commentary which reflects the author's opinion.
A federal court gave former California Republican Rep. Devin Nunes some good news on Monday in a defamation lawsuit. U.S. District Judge P. Kevin Castel in Manhattan ruled that the suit against MSNBC and one of its former prime-time hosts, Rachel Maddow, can proceed.
The suit relates to a report by Maddow when Nunes, who is currently the CEO of Trump Media and Technology Group, was still serving in Congress. She alleged that the then-chairman of the House Intelligence Committee was sent a package from Andriy Derkach, a pro-Russia Ukrainian legislator, but that Nunes “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. as a Russian agent.”
But in fact, a report noted, a staffer for Nunes handed the unopened package to the FBI on the day it was received.
In his ruling, Castel rejected NBC’s argument that Maddow’s statements were a matter of opinion protected under the U.S. Constitution’s First Amendment. He wrote that when Maddow asserted Nunes did not hand over the package to the FBI, she made the claim as a matter of fact, not as an opinion.
— Lyndsey Wajert (@Lwajert) November 29, 2022
“The statement in this respect was false, not just technically but also in substance and meaning, and capable of injuring Nunes in his profession,” the judge wrote, before dismissing two more claims made by Nunes.
The former lawmaker “plausibly allege[d] actual malice,” Castel wrote.
The judge also noted Maddow did not have a source for her claims about Nunes and while she may have relied on a Politico report at the time, “a court does not weigh competing, plausible theories of actual malice on a motion to dismiss.”
In his lawsuit, Nunes argued that MSNBC and Maddow knew the package had been turned over, but instead “set out to inflict maximum pain and suffering on plaintiff in order to harm plaintiff’s reputation.”
From Castel’s ruling, per Reason:
On December 11, 2019, a package was delivered to the House Permanent Select Committee on Intelligence …, of which Nunes was Ranking Member. It was addressed to Nunes from Andriy Derkach and was handled solely by Nunes’ staff and delivered, unopened, to the offices of the FBI. That same day, Nunes sent a letter to Attorney General William P. Barr advising him of the receipt of the package.
On July 29, 2020, the Intelligence Committee held an open business meeting. During this meeting, Representative Sean Maloney asked Nunes two questions. First, Maloney asked if Nunes had received materials from Derkach. Second, Maloney asked if, in the event that Nunes 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.
In March 10, 2021, the National Intelligence Council declassified a report titled “Foreign Threats to the 2020 US Federal Elections” (the “DNI Report”). The report stated that Derkach and his associates sought to use prominent Americans to “launder their narratives to US officials and audiences.” The report also stated that Derkach provided materials to individuals linked to the Trump administration and attempted to contact several senior U.S. officials.
In the March 18, 2021 broadcast of The Rachel Maddow Show, host Rachel Maddow discussed the declassified DNI Report as part of a longer segment about Derkach, Russian disinformation and election interference. Maddow referred to the report and discussed the package addressed to Nunes, as well as the interaction between Nunes and Maloney at the Intelligence Committee meeting. Maddow said that Nunes had accepted a package from Derkach and refused to answer questions about the package. Maddow also said that Nunes refused to hand the package to the FBI.
A reasonable viewer could plausibly understand the speaker to assert that Nunes “refused” turn over the Derkach package to the FBI. A reasonable viewer could conclude that such conduct is significantly more serious than what was suggested in the Committee proceeding. A refusal to turn over the package to the law-enforcement body tasked with investigating and enforcing the intelligence laws is factually distinct from declining to publicly answer questions raised in a public legislative proceeding, and could plausibly be understood by a reasonable viewer to suggest unlawful conduct on the part of Nunes.