Court Says Comey And Other DOJ Officials Must Answer BuzzFeed's Questions About The Steele Dossier

from the not-as-big-as-you'd-think,-but-still-kind-of-big dept

Since publishing the urine-soaked “Steele Dossier,” BuzzFeed has been targeted with multiple defamation lawsuits. Trump’s former lawyer, Michael Cohen, ultimately dropped his lawsuit against the website after his own legal problems pretty much demanded he focus his legal attention elsewhere. Oh, and it was a lawsuit he was likely to lose, what with a lot of the alleged defamation being factual statements and any remaining defamation having been penned by the author of the dossier, not BuzzFeed itself.

Another doomed lawsuit is still active — this one brought by Aleksej Gubarev and a couple of his companies (XBT Holdings and Webzilla, Inc.). Gubarev claims the next-to-last paragraph of the Steele Dossier defames him and his by linking Gubarv to Russian hacking attempts targeting the Democratic National Committee.

This lawsuit is likely doomed to fail as well, what with the alleged defamation having been penned by Steele, not BuzzFeed. But while it rolls towards this seemingly inevitable conclusion, the process continues with the subpoenaing of witnesses for both sides. BuzzFeed wants to depose people with knowledge of the events depicted in the dossier — high-powered people like former FBI Director James Comey and other DOJ/FBI officials.

As Eriq Gardner notes on Twitter, this request has actually been granted, which is kind of a big deal.

Here’s the text of the tweet if you can’t see the embed:

WOW! This just in: A judge grants BuzzFeed’s motion to compel testimony from James Comey and others at the Justice Dept. and FBI over the Trump Dossier.

The court has decided the answers BuzzFeed seeks from these officials is relevant and could contribute to the affirmative defenses the website has raised. From the order [PDF]:

Upon consideration of the parties’ briefs, and for the reasons set forth below, the court concludes that the subpoena—as substantially narrowed during the course of this litigation—is not unduly burdensome, and that BuzzFeed has made a sufficient showing of need to overcome the law enforcement privilege. The testimony that BuzzFeed seeks is essential to its defense against the defamation action and it cannot be obtained from any other source. Additionally, the release of the testimony will have a minimal impact, if any, on law enforcement interests, particularly in light of the substantial amount of information already officially acknowledged about the Dossier’s provenance and subsequent use by the FBI.

Accordingly, the court grants the Motion to Compel and orders the Government to produce, subject to a protective order, an affidavit that is responsive to the three topics set forth in BuzzFeed’s narrowed request.

This is a big deal, considering FBI/DOJ officials tend to remain beyond the reach of subpoenas thanks to hundreds of law enforcement/national security excuses that prevent most citizens from asking them any questions directly, much less under oath. So, kind of a coup for BuzzFeed and its legal team.

But wait, there’s more less! Dismiss any images of Comey and other FBI officials taking the stand in court or spending hours being deposed by BuzzFeed’s lawyers. That’s just not happening. What’s being compelled is the answer to three questions, which can all be answered with a single word.

Revised Narrowed Topic No. 3: The Government need only respond to one of the following and shall specify in its affidavit whether it is answering (A) or (B):

(A) Prior to 5:20 p.m. EST on January 10, 2017, did the FBI and/or any of the other Defendant agencies possess the two-page memorandum contained within the Dossier dated December 13, 2017, i.e., Report 2016/166?

(B) Prior to 5:20 p.m. EST on January 10, 2017, did the FBI and/or any of the other Defendant agencies possess all 35 pages of the Dossier?

Revised Narrowed Topic No. 7: Did the FBI receive from Senator John McCain a copy of the first 33 pages of the Dossier (i.e., all pages other than Report 2016/166) on or about December 9, 2016?

Revised Narrowed Topic No. 8: Did Mr. Clapper, Mr. Rogers, Mr. Brennan, and/or Mr. Comey, before January 10, 2017, brief President Obama about allegations contained in the Dossier?

Despite the FBI/DOJ only being required to answer three yes/no questions, the government is still arguing the request is too burdensome. The DOJ claimed — with a straight face and under oath — that answering these three questions would “divert crucial resources away” from its law enforcement and natsec work. The judge disagrees:

What started as a demand for documents and testimony covering nine separate topics is now a request to respond by sworn affidavit to three discrete questions, which likely can be answered with a simple “yes” or “no.” Not a heavy lift.

The government also argued that being compelled to answer three yes/no questions would result in it being swamped with similar requests from other litigants engaged in lawsuits over the same subject matter. The court lols and asks the government if it even bothered to assess the situation before making that claim.

Three lawsuits in the nearly 18 months since the Dossier’s publication—only one of which involves a demand on the Government—does not suggest there will be, as the Government Respondents fear, a mass “proliferation” of actions.

As for the government’s claims answering these questions would compromise an ongoing investigation into Russian election interference, the court points to all the stuff already made public by the Nunes Memo, the Carter Page FISA warrant affidavits, and other public statements made by government officials.

To be sure, this is big news. The government isn’t forced to hand over info — however limited — from ongoing investigations very often. This is a rarity. But it’s not going to result in cross examination on the witness stand or a bunch of lawyers and clients gathered in a conference room objecting to each others actions over the minimal interactions from government officials. This is more BuzzFeed Poll than Perry Mason, but it’s still nice to see a court give the government’s oh-this-is-so-very-burdensome arguments the full, dismissive discussion they clearly deserve.

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Comments on “Court Says Comey And Other DOJ Officials Must Answer BuzzFeed's Questions About The Steele Dossier”

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And now Gawker is out of business! says:

Yeah, this is what GAWKER thought too!

"the alleged defamation having been penned by Steele,"

No, as CLEARLY shown in the Gawker case, web-sites are NOT free to just publish anything — even when true! Juries WILL NOT go for it when the injury is obvious — and the alleged news is FALSE in first place!

You’re just continuing to blather Techdirt’s now ancient but utterly debunked, defuncted, degenerate, and deleterious notion that web-sites are invulnerable to common law and common decency.

By the way, also again shows Techdirt wrong on the "chilling effect" the Gawker case had. — Bet Buzzfeed wishes they’d been chilled, huh?

Any testimony, esp by Comey, though, should be FUN! All to Trump’s good.

K`Tetch (profile) says:

Re: Yeah, this is what GAWKER thought too!

gawker was less about the law, and more about a vindictive judge, requiring satisfaction of a judgement, before appeal. A judge that had already had multiple decisions in the case overturned on appeal during the case.

Odds are, had she not imposed that burdensome restriction, on appeal it would have been overturned.

Thad (profile) says:

Re: Re: Yeah, this is what GAWKER thought too!

That and the verdict was specifically because Gawker included video. If it had merely factually reported on the Hulk Hogan sex tape, it would have been in the clear.

I’m not aware of any video included in Buzzfeed’s story, but then again I’m not AWARE of any ENGLISH grammar or SYNTAX rules that dicate RANDOMLY inserting all-caps WORDS into SENTENCES, either, so what do I KNOW?

Stephen T. Stone (profile) says:


web-sites are invulnerable to common law and common decency

Three things.

  1. It is either "web sites" or "websites", with most outlets I know of using the one-word version. No style guide I know of hyphenates the two-word version.
  2. No one here but you has ever claimed that websites are “invulnerable” to “common law and common decency”. The rest of us recognize the law and how it limits what can be done about speech people may find “offensive” or “defamatory”—including factually correct speech.
  3. Please define “common law” as it relates to the legal system in a way that we can all understand. Only then can we discuss “common law” on a level playing field, rather than laugh at you for invoking SovCit lingo as if that kills debates dead.
Wyrm (profile) says:

Re: Yeah, this is what GAWKER thought too!

Maybe. I would object in two points though.
1. The Gawker case is not too definite yet. Due to lack of resource and willingness – by new owners – to fight any longer, this case has not used all available courses of appeal.
2. This case is different as the charge is “defamation”, where truth is a valid defense. And BuzzFeed doesn’t need to prove the facts in the dossier are true, but only that the dossier is real and that the content is as stated in the article.

Your parallel to the Gawker case seems completely invalid to me.

David says:

Re: Re: Not unduly burdensome

It would be my guess that straight up answering them would be digging the hole a whole lot deeper, so answering them in a manner pervasively evasive enough not to get further down the slippery slope of that hole would be quite a bit of work likely not to accomplish the whole job since things can go only downward from here on.

Bamboo Harvester (profile) says:

Re: Re:

It’s not about “other suits”, and it’s not about “national security”.

It’s about setting legal precedent for hauling Important People (aka: FBI or any other alphabet soup members) in front of a court and compelling testimony.

Camel’s nose in the tent problem. If the former FBI director can be hauled into court to answer questions, ANYONE in the FBI can be.

And we can’t be having with THAT, now can we?

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