Former Devin Nunes' Aide Uses Nunes' Lawyer To File SLAPP Suit Against Politico

from the it's-spreading dept

Steven Biss is the lawyer who filed Devin Nunes' SLAPP suit against a satirical cow on Twitter (and against Twitter and political consultant Liz Mair), as well as Nunes' various other lawsuits against a variety of journalists and critics.

It appears that a former Nunes aide is now using Biss for similar purposes. Earlier this week, Biss, representing White House staffer and former Nunes' aide, Kashyap "Kash" Patel, sued Politico and reporter Natasha Bertrand, along with Politico publisher Robert Allbritton, in yet another SLAPP suit in Virginia (hey, Virginia, time to improve your anti-SLAPP laws, please). The lawsuit is silly and performative, rather than serious. It is filed about a Politico article by Bertrand, that reports Fiona Hill, the former senior advisor on the National Security Council, testified during the impeachment hearings that Patel passed questionable information about Ukraine on to Trump, and a later article that Trump (incorrectly) may have believed that Patel was the NSC's expert on Ukraine. The article is carefully reported.

The defamation complaint is... not. To understand just how silly and performative it is, you only need to read the opening paragraph. This is not how you file a lawsuit if you wish to convince a judge. It's how you file a lawsuit if you wish to get cheered on by the Trump-supporting media:

We live in the era of weaponized media. The days of the mild-mannered reporter – covering a beat, gathering facts and truthfully reporting about “the news that’s fit to print” – are over. The venerable “Fourth Estate” has been replaced by partisan hacks and character assassins who work to advance the interests and agendas of dark money. One of the very worst offenders in the business is “Politico”.

Notably, the complaint does not indicate what is factually false in the various statements it highlights. It just quotes various statements in the articles and says that they are either "false statements" or have "defamatory implications." But most of the statements are clearly reporting on the statements that others made, or are clearly not false statements of fact or defamatory. For example, this is the one of the statements that Biss/Patel claim is defamatory:

“Kashyap Patel, a longtime Nunes staffer who joined the White House in February, was so involved in the issue that at one point Trump thought he was in charge of Ukraine policy for the National Security Council, according to congressional testimony by Fiona Hill”;

That's reporting on what Hill had to say. If Hill did not say that, then it would likely be Hill, not Patel, who would have a claim here. But the complaint doesn't suggest that Hill didn't say that. Just that what Hill said was false. But even so, it's hard to see how anything here could possibly be defamatory. Whether or not Trump believed something, according to someone else, is not something that Patel can actually sue over. That's not how any of this works.

Much later in the complaint, in a footnote, Biss actually admits that Hill did say this, but claims that she fabricated the claim:

If Politico, Bertrand and Allbritton had bothered to wait for the transcript, they would have learned that Hill completely fabricated the story that Kash had provided “materials on Ukraine” to the President.

If that were true, then perhaps Patel would have a claim against Hill. But the complaint fails to actually show that Hill "completely fabricated" the information. All it says is that Rep. Adam Schiff "spoon-fed Hill grossly leading questions in a clear effort to fabricate a narrative about Kash." That is not the same as showing that the claims were falsified.

Other statements that are claimed to be defamatory would have anyone scratching their heads. How is the following defamatory, even if it wasn't true (and it appears to be true):

“Patel joined the National Security Council’s International Organizations and Alliances directorate in February and was promoted to a senior counterterrorism role around the same time as Trump’s fateful call with Ukrainian President Volodymyr Zelensky, in which he urged the newly elected leader to investigate Biden and ‘get to the bottom of’ Ukrainian interference in the 2016 election”;

The only statement of fact there about Patel is that he joined the NSC in February and was later promoted. Even if that's false (and there's no indication that it is), how is that defamatory? Or how about this statement:

“Patel’s name has been brought up in several recent depositions, according to another person with direct knowledge of the interviews, in connection with the shadow foreign policy campaign Trump allegedly directed in an effort to extract political favors from the newly elected Zelensky”;

That article is revealing what a "person with direct knowledge of the interviews" said. Nowhere in the complaint do they dispute that.

The whole thing appears to be a blatant SLAPP suit. It even has nonsense like the following:

Schiff conducted the interviews like a Star Chamber or Kangaroo Court, and, in so doing, stripped the witnesses of any privilege or immunity from defamation that they may have enjoyed.

That entire sentence is nonsense. Conducting closed door interviews is perfectly reasonable as part of an investigation and has nothing to do with any privilege or immunity questions. I could go on and on, but actually, I'm just going to point people to Wonkette's story about this lawsuit because it details over and over again why this "isn't a real lawsuit." Here's just a snippet, but I suggest reading the whole thing:

You know this isn't a real lawsuit because it claims that Fiona Hill and Alex Vindman's transcripts prove that "Defendants' reporting was categorically and knowingly false," when in fact Hill testified that someone in the Executive Secretary's Office told her, "Oh, the President wants to talk to your Ukraine director ... to talk about some of the materials ... so we might be reaching out to Kash." Which reasonably led her to believe that Patel had been presenting himself to the president as the Ukraine director, because there aren't that many guys named Kash on the NSC, exactly as reported in Bertrand's story and ours and the New York Times's, which was published the same day as Politico's and had multiple NSC sources.

You know this isn't a real lawsuit because there is no way on God's Green Earth that Patel will subject himself to discovery about whatever insane cowfarts he may or may not have printed off 8chan to feed to President Babyfingers.

You know this isn't a real lawsuit because, GAWDALMIGHTY, what the hell does this have to do with actual law? "Defendants chose to manufacture and publish false and scandalous statements and use insulting words that were unnecessarily strong and that constitute violent, abusive and hateful language, disproportionate to the occasion, in order to undermine public confidence in Kash and smear Congressman Nunes and the President. The words chosen by the Defendants evince their ill-will, spite and actual malice."

You know this isn't isn't a real lawsuit because Patel just got promoted and remains in his post, and yet somehow claims "actual damages, including, but not limited to, insult, pain, embarrassment, humiliation, mental suffering, injury to his reputation, special damages, costs, and other out-of-pocket expenses, in the sum of $25,000,000.00" for the calumnious accusation that Patel, a presidential aide ... provided information to the president

As that last one notes, the lawsuit is seeking a hilarious $25 million in damages, along with an additional $350,000 in "punitive damages" because why not?

Virginia needs a better anti-SLAPP law and we need a federal anti-SLAPP law. These nonsense lawsuits need to stop.

Filed Under: 1st amendment, anti-slapp, devin nunes, free speech, impeachment, kash patel, natasha bertrand, nsc, robert allbritton, slapp, steven biss, ukraine, virginia
Companies: politico


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  • identicon
    Anonymous Coward, 21 Nov 2019 @ 11:04am

    If someone accused me of having provided aid or information to the clown, I should consider that defamation.

    That would be like saying "This person had a hand in some of the most spectacular failures in human history".

    So he almost has a valid point.

    reply to this | link to this | view in chronology ]

  • icon
    aerinai (profile), 21 Nov 2019 @ 11:31am

    Snowflake of snowflakes

    The justice system is not a place to rant about the fact you don't like facts... Use Twitter and save everyone a lot of time and money...

    Judges need to grow some balls and start dismissing these cases with huge penalties, potentially even submitting these shady lawyers to the Bar for wasting everyone's time with these low quality suits. That would severely limit the number of lawyers that would be willing to file these types of ridiculous cases.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 21 Nov 2019 @ 12:06pm

      Re: Snowflake of snowflakes

      Judges need to grow some balls and start dismissing these cases with huge penalties

      Judges can't just make up laws. That's what all that stuff in the article about needing stronger anti-SLAPP laws is about. The legislative branch has to actually make something illegal before the judicial branch is allowed to punish somebody for it.

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Monkey (profile), 21 Nov 2019 @ 8:46pm

        Re: Re: Snowflake of snowflakes

        Judges can't just make up laws.

        2 Words:
        Qualified Immunity

        reply to this | link to this | view in chronology ]

        • icon
          Thad (profile), 22 Nov 2019 @ 7:39am

          Re: Re: Re: Snowflake of snowflakes

          Cute, but in addition to being unrelated to the subject of the article, qualified immunity is basically the opposite of what we're talking about.

          I pointed out that judges can't just invent crimes and punish people for them. Do you think judges inventing exceptions to crimes and not punishing people is really a good counterpoint to that argument?

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2019 @ 11:43am

    Oh look...Devin Nunes Mad Internet Cow disease is spreading! Somebody needs ro quarantine his internet connection quick, before it affects even more people! Think of the children!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2019 @ 12:10pm

    Wait, so for any of this to be "defamatory", he must not want to be associated with the reported actions of the Trump Administration & Friends thus far. Interesting.

    reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 21 Nov 2019 @ 12:11pm

    ethics

    How come the lawyers that take these lawsuits aren't slapped down by ethics committees?

    How come there are no consequences for lawyers wasting the court's time?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2019 @ 12:27pm

    Suits like this aren't intended to be won.

    They're intended to insert false or heavily slanted opinion into the public record in a forum where it can't be modified or easily refuted.

    So next year, when someone runs for re-election, they can point to that lawsuit and say "See? The courts unequivocally state that Adam Schiff was running a Kangaroo Court!"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2019 @ 1:17pm

    So next year, when someone runs for re-election, they can point to that lawsuit and say "See? The courts unequivocally state that Adam Schiff was running a Kangaroo Court!"

    I can see it now.

    Narrator: In this episode of Captain Kangaroo's Court we have the case if the Coyote vs the Road Runner, followed by Nunes vs the Cow, and if time permits Tom the Cat vs Jerry the Mouse

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2019 @ 3:01pm

    So they both know the same lawyer

    That's not a smoking gun. That's not even a smoking butterknife.

    reply to this | link to this | view in chronology ]

  • icon
    Khym Chanur (profile), 21 Nov 2019 @ 4:20pm

    But most of the statements are clearly reporting on the statements that others made,

    Having read the complaint, it seems to be saying that not only are the sources Politico used dirty rotten liars, Politico knows they're dirty rotten liars, so using them as their sole sources counts as a reckless disregard for the truth, and is hence actual malice.

    reply to this | link to this | view in chronology ]

    • icon
      Wendy Cockcroft (profile), 25 Nov 2019 @ 3:29am

      Re:

      1. Politico reported what the "dirty rotten liars" said. Reportage, not actual malice.

      2. Litigant doesn't specify what the "lies" were, or show that they were lies. Burden of proof is on the litigant to prove they were lies AND that they were directly harmful.

      3. Go after the ACTUAL offender, not the reporter of the offence.

      4. None of the "defenses" for Trump or any of his staff members or supporters hold up under scrutiny. They're all misdirection and attacks on the source rather than on the actual content, so can be dismissed.

      reply to this | link to this | view in chronology ]

  • icon
    bhull242 (profile), 21 Nov 2019 @ 4:44pm

    Honestly, the allegedly defamatory statements tend to fall under at least one of four categories:

    1. Something said by a non-party, not any defendant.

    2. Something that the plaintiff admits is true or doesn’t dispute.

    3. A statement of opinion.

    4. Something that, even if a factual statement that is knowingly false or implying a fact known to be false, simply doesn’t say or imply anything bad about the plaintiff.

    Plus, as a government official, I’m pretty sure that he would be a public figure, so “actual malice” would have to be proved.

    I don’t think I’ve seen such a bizarre and doomed-to-fail defamation lawsuit.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 21 Nov 2019 @ 6:18pm

    What a time to be a judge

    With lawsuits that are pretty clearly just for PR(seriously, look at that gorram opening and tell me this isn't primarily meant to rile up gullible fools), with a dash of 'silencing people from saying mean things', the judges involved have got to be just thrilled to see their courts turned into theater, where the goal isn't 'justice' or punishing violations of the law but merely to show off for those on the sidelines.

    reply to this | link to this | view in chronology ]

  • identicon
    bobob, 21 Nov 2019 @ 10:03pm

    I am going to go out on a limb here and predict that this will not end well for Nutmaster Nunez or the Aspiring Airhead Apparent, Biss. There's nothing like filing a fivolous lawsuit meant for intimidation to spawn even more detractors who will pardoy them just for being stupid enough to resort to such slimeball tactics. As much as despise and avoid social media, I've been tempted to open a Twitter account just to fuck with Numnuts Nunez.

    I've been able to vote since 1976 and in all that time, I can't recall anyone in congress (well, Lamar Smith and Joe Barton, are close), who is as just plain stupid as the Dishonorable Dumbshit from California. He makes the very slowest student I've ever taught in university physics class seem like a genius.

    reply to this | link to this | view in chronology ]

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  • identicon
    Anonymous Coward, 3 Dec 2019 @ 8:45pm

    Judges, especially federal judges, take a dim view of this kind of grandstanding crap (as well as Nunes' suit filed against CNN today.) An average, ornery federal judge might make Mr. Biss file an amended complaint right out of the box. She or he might warn plaintiff's counsel that news reports of allegations made by someone are not themselves ever defamatory. ("Parnas alleges ....." - never going to fly...). The incomplete quotations cited in the complaint are always a red flag to a judge and oppsoing counsel that the alleged defamatory passages may not have been accurately quoted. Usually, a Rule 11 letter (advising plaintiff's counsel that CNN will seek sanctions in the form of its attorney's fees, if the Complaint is not dismissed) goes a long way in ending this kind of suit. If Nunes keeps going, the financial stakes are certainly raised. Have witnessed six figure sanctions handed out without a judge ever raising his/her voice, so don't agree with notion that fedral judges are "soft."

    reply to this | link to this | view in chronology ]


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