As if we needed any more evidence showing just how deep and thoroughly corrupted the Trump administration is. It’s an endless cycle of self-serving actions, pushed forward by bigots, grifters, and loyalists who sold off what was left of their souls and spines when Trump took office.
It’s an endless cycle of perverse self-involvement performed by people who openly loath America and Americans, but tout themselves as the only real patriots left. It’s an ouroboros, except the snake is sucking itself off, rather than symbolizing the live/die/repeat process that is supposed to iterate its way towards enlightenment.
The Justice Department has reached an agreement with President Donald Trump’s former national security adviser Michael Flynn to pay him roughly $1.2 million to settle a lawsuit brought by the former general claiming he was politically targeted for prosecution during Trump’s first administration, sources familiar with the matter tell ABC News.
Pay special attention to the phrase “reached an agreement.” That shouldn’t be there, much like everything else surrounding that phrase. Here’s Julian Sanchez, breaking down the perversity of this “agreement” succinctly:
Just to be very clear: The Trump DOJ is stealing $1.2 million of your money to gift one of Trump’s cronies, who pled guilty to the crimes he was charged with, and whose suit against the government had already been tossed by a judge.
Here’s what Sanchez said, for those of you who can’t see the embed or access the Bluesky post:
Just to be very clear: The Trump DOJ is stealing $1.2 million of your money to gift one of Trump’s cronies, who pled guilty to the crimes he was charged with, and whose suit against the government had already been tossed by a judge.
It’s not just the lifting of $1.2 million from the public’s wallet. It’s not just Trump deciding to reward a loyalist. It’s also that there should be no settlement at all. You don’t “settle” lawsuits that are no longer viable.
Flynn’s malicious prosecution lawsuit was tossed by a judge in 2024 after Biden’s DOJ responded to it. And it’s pretty difficult to both plead guilty to charges and claim the prosecution was malicious. It would be one thing if a jury rung Flynn up while his defense team maintained his innocence. But that’s not what happened here.
And that’s not the only thing that doesn’t add up… at least to anything else but patented Trump administration corruption.
Flynn previously pleaded guilty to charges brought by former special counsel Robert Mueller for lying to FBI agents during a January 2017 interview in the White House about his contacts with then-Russian Ambassador Sergey Kislyak.
The Trump Justice Department under former Attorney General William Barr then moved to drop the case in 2020…
This prosecution was already short-circuited by Bill Barr while Trump was still in office the first time. And then Trump pardoned Flynn on his way out the door following an election loss both Trump and Flynn continue to claim wasn’t a loss.
But that’s apparently not enough for Flynn. He also wanted up to $50 million for allegedly being maliciously prosecuted. He’s only getting a fraction of that but it’s far more than he deserves. Unless this is just Trump buying a bit more loyalty from a guy who’s just as determined to prove any election that doesn’t favor Trump or MAGA legislators is “stolen.”
According to information gathered by the House select committee that investigated the Jan. 6 Capitol attack, Flynn was among a number of advisers who urged Trump to seize voting machines after the 2020 election and said in media appearances that Trump should use the military to “basically rerun” elections in states that he had lost.
So, this is all very gross and ugly and being done right out there in the open by people who don’t care how this looks. When most politicians would at least balk at the appearance of impropriety, this administration absolutely revels in it. Yeah, $1.2 million isn’t even a rounding error in this deficit, but it still matters. The administration is repeating itself: if you lie, cheat, steal, or actually fucking raid the US Capitol building for Trump, you’re gonna be just fine.
Several high-ranking federal election officials attended a summit last week at which prominent figures who worked to overturn Donald Trump’s loss in the 2020 election pressed the president to declare a national emergency to take over this year’s midterms.
Election experts say that the meeting reflects an intensifying push to persuade Trump to take unprecedented actions to affect the vote in November. Courts have largely blocked his efforts to reshape elections through an executive order, and legislation has stalled in Congress that would mandate strict voter ID requirements across the country.
The Washington Post reported Thursday that activists associated with those at the summit have been circulating a draft of an executive order that would ban mail-in ballots and get rid of voting machines as part of a federal takeover. Peter Ticktin, a lawyer who worked on the executive order and had a client at the summit, told ProPublica these actions were “all part of the same effort.”
The summit followed other meetings and discussions between administration officials and activists — many not previously reported — stretching back to at least last fall, according to emails and recordings obtained by ProPublica. The coordination between those inside and outside the government represents a breakdown of crucial guardrails, experts on U.S. elections said.
“The meeting shows that the same people who tried to overturn the 2020 election have only grown better organized and are now embedded in the machinery of government,” said Brendan Fischer, a director at the Campaign Legal Center, a nonpartisan pro-democracy organization. “This creates substantial risk that the administration is laying the groundwork to improperly reshape elections ahead of the midterms or even go against the will of the voters.”
Five of six federal officials who attended the summit didn’t answer questions about the event from ProPublica.
A White House official, speaking on the condition of anonymity, said federal officials’ attendance at the gathering shouldn’t be construed as support for a national emergency declaration and that it was “common practice” for staffers to communicate with outside advocates who want to share policy ideas. The official pointed to comments Trump made to PBS News denying he was considering a national emergency or had read the draft executive order. “Any speculation about policies the administration may or may not undertake is just that — speculation,” the official said.
Mitchell did not respond to questions from ProPublica about the summit. A spokesperson for Flynn responded to detailed questions from ProPublica by disparaging experts who expressed concerns, texting, “LOL ‘EXPERTS.’”
The 30-person roundtable discussion on Feb. 19, at an office building in downtown Washington, D.C., was sponsored by the Gold Institute for International Strategy, a conservative think tank. Afterward, activists and government officials dined together, photos reviewed by ProPublica showed.
Flynn, the institute’s chair, told a social media personality why he’d arranged the event.
“I wanted to bring this group together physically, because most of us have met online” while “fighting battles” in swing states from Arizona to Georgia, Flynn said to Tommy Robinson on the gathering’s sidelines. Robinson posted videos of these interactions online. “The overall theme of this event was to make sure that all of us aren’t operating in our own little bubbles.”
Flynn has repeatedly advocated for Trump to declare a national emergency and posted on social media after the event addressing Trump, “We The People want fair elections and we know there is only one office in the land that can make that happen given the current political environment in the United States.”
In addition to Olsen and Honey, four other federal officials from agencies that will shape the upcoming elections attended the event. At least four of the six attended the dinner.
One is Clay Parikh, a special government employee at the Office of the Director of National Intelligence who’s helping Olsen with the 2020 inquiry. A spokesperson at ODNI said Parikh had attended the summit “in his personal capacity.”
Another, Mac Warner, handled election litigation at the Justice Department. A department spokesperson said that Warner had resigned the day after the event and had not received the required approval from agency ethics officials to participate.
The department “remains committed to upholding the integrity of our electoral system and will continue to prioritize efforts to ensure all elections remain free, fair, and transparent,” the spokesperson said in an email.
A third administration official who attended the summit, Marci McCarthy, directs communications for the nation’s cyber defense agency, which oversees the security of elections infrastructure like voting machines.
Kari Lake, whom Trump appointed as senior adviser to the U.S. Agency for Global Media, was a featured speaker. Lake worked with Olsen and Parikh in her unsuccessful bid to overturn her loss in the 2022 Arizona gubernatorial election.
Lake said in an email that she “showed up to the event, spoke for about 20 minutes about the overall importance of election integrity, a non-partisan issue that matters to all citizens — both in the United States and abroad. I left without listening to any other speeches.”
“Elections should be free from fraud or any other malfeasance that subverts the will of the people,” she added.
At the meeting, activists presented on ways to transform American elections that would help conservatives, according to social media posts and interviews they gave on conservative media, such as LindellTV, a streaming platform created by the pillow mogul Mike Lindell. They said the group broke down into two camps: those who wanted to pursue a more incremental legal and legislative strategy and those who wanted Trump to declare a national emergency.
Multiple activists left the meeting convinced Trump should do the latter, a step they believe would allow the president to get around the Constitution’s directive that elections should be run by states.
Former Overstock.com CEO Patrick Byrne, a prominent funder of efforts to overturn the 2020 election, told LindellTV that Trump has “played nice” so far in not seizing control of American elections. “But at some point,” Byrne said, “he’s got to do something, the muscular thing: declare a national emergency.”
Byrne responded to questions from ProPublica by sending a screenshot of a poll that he said suggested “2/3 of Americans correctly do not trust” voting machines, which the proposed national emergency declaration aims to do away with.
Will Huff, who has advocated for doing away with voting machines, told a conservative vlogger that Olsen, the White House lawyer, and other administration representatives would take the “consensus” from the gathering back to Trump. “It’s got to be a national emergency,” said Huff, the campaign manager for a Republican candidate for Arkansas secretary of state.
In response to questions from ProPublica, Huff said in an email that Olsen and Trump would use their judgment to decide whether to declare a national emergency.
“The President has been briefed on findings of shortcomings in election infrastructure,” Huff wrote. “I believe there are steady hands around the President wanting to ensure that any action taken is, first, constitutional and legal, but also backed by evidence.”
McCarthy, the cybersecurity official, expressed more general solidarity with fellow attendees in a post on social media about the summit. “Grateful for friendships forged through years of standing shoulder-to-shoulder, united by purpose and conviction,” she wrote. “The mission continues… and so does the fellowship.”
Marci McCarthy, second from left, Heather Honey, fourth from right, and Cleta Mitchell, third from right, were among the conservative activists and officials who attended the summit. McCarthy posted about the event on LinkedIn. Screenshot by ProPublica. Redactions by ProPublica.
Last week’s gathering was the latest in a string of private interactions between conservative election activists and administration officials, according to emails, documents and recordings obtained by ProPublica. Many have involved Mitchell’s Election Integrity Network. Before taking her government post, Honey was a leader in the Election Integrity Network, ProPublica has reported, as was McCarthy.
Previously unreported emails obtained by ProPublica show that just weeks after Honey started at the Department of Homeland Security, she briefed election activists, a Republican secretary of state and another federal official on a conference call arranged by her former boss, Mitchell.
“We are excited to welcome her on our call this morning to hear about her work for election integrity inside DHS,” Mitchell wrote in an email introducing presenters on the call.
Honey didn’t respond to questions from ProPublica about the call. Experts said Honey’s briefing gave her former employer access that likely would have violated ethics rules in place under previous administrations, including the first Trump administration — though not this one.
The prior “ethics guardrails would have prevented some of the revolving door issues we’re seeing between the election denial movement and the government officials,” said Fischer, the Campaign Legal Center director. Those prior rules “were supposed to prevent former employers and clients from receiving privileged access.”
MAGA SLAPP suits apparently aren’t going out of style, but yet another one has been tossed out of court.
Remember lawyer Steven Biss? He was the grand filer of tons of SLAPP suits for the MAGA crowd against media outlets. He had quite a losing streak, with nearly all of those cases failing. Last fall, I heard some rumors that Biss had either died or was facing serious health problems. In September, reporter Josh Gerstein broke the news that he’d had a stroke. In January, Biss’ law license was suspended, not for all of his frivolous cases, but “on impairment grounds.”
However, many of his cases were handed off to another MAGA lawyer, Jesse Binnall, who, at one time, was “Trump’s top election fraud lawyer,” to give you some sense of his worldview and credibility.
Anyway, handing off the cases to Binnall hasn’t made them work out any better. We had covered how Biss had filed a lawsuit on behalf of Jack & Leslie Flynn, the brother and sister-in-law of disgraced former (briefly) National Security Advisor Michael Flynn. The lawsuit was against CNN, claiming that a segment they had aired falsely associated him with the QAnon wackjob conspiracy theory.
CNN had aired the segment, which was mostly focused on a gathering of QAnon adherents. During the segment, CNN briefly shows a video that was taken at a barbecue, where Michael Flynn is standing alongside his brother Jack and sister-in-law Leslie, with their right hands raised, and where Michael Flynn says “where we go one, we go all,” a saying that has been associated with QAnon followers.
As that clip played, the voiceover said, “‘Where we go one, we go all’: an infamous QAnon slogan promoted by Trump’s first National Security Advisor, Michael Flynn.”
According to the lawsuit, this was defamatory to Jack and Leslie. This was laughable, as we pointed out at the time. The CNN report doesn’t even talk about Jack or Leslie, and they did stand there while Michael Flynn said the slogan. Hilariously, Biss tried to argue that “where we go one, we go all” was not a QAnon slogan, pointing out that John F. Kennedy had said it. But, it’s not about who said it first, it’s about what it’s associated with.
CNN pushed back hard on the lawsuit, also noting that Jack Flynn himself had retweeted the same phrase. Unfortunately, while the court dismissed parts of it at the motion to dismiss stage, it allowed part of the case to move on to summary judgment. The defamation claims were dismissed, but the “false light” claims (basically defamation claims in disguise) were allowed to go through the lengthy summary judgment process. We pointed out at the time (as did Eric Goldman) that there were plenty of reasons to toss this case at the earlier stage, but the judge wasted everyone’s time and money by letting it go one more round.
Here, the Flynns’ claim is that CNN called them “QAnon followers.” See Dkt. 197 at 18–21; Dkt. 221 at 1. Although CNN never overtly said that, a false fact may be implied. See McCann v. Shell Oil Co., 551 A.2d 696, 697–98 (R.I. 1988). The Court assumes without deciding that the video was capable of implying that the Flynns were QAnon followers. That implication, “once defined, is treated like a claim for direct defamation.” Cheng, 51 F.4th at 444; see also Biro v. Conde Nast, 883 F. Supp. 2d 441, 468–69 (S.D.N.Y. 2012). In other words, the Court will analyze the issue as if CNN called the Flynns “QAnon followers” explicitly. But determining “whether a communication is capable of bearing a particular meaning” is only the first step. Restatement (Second) of Torts § 614(1)(b). It is still a matter for the Court to decide “whether that meaning is defamatory.”
It was not. Calling the Flynns “QAnon followers” was, in defamation law–speak, an opinion….
Here, the statement neither stated nor implied defamatory facts, so it is a nonactionable opinion. This conclusion is based on two independent—but mutually reinforcing—grounds. 4 First, the statement is unverifiable. And second, it was a comment on disclosed, nondefamatory facts. Both characteristics ensure that the reasonable viewer understands that the statement is the speaker’s opinion (rather than stating facts) and that the speaker is not harboring additional, undisclosed facts to justify the statement. So Rhode Island law and the First Amendment demand its protection
The court goes on to note that this was clearly a statement on matters of public concern. The Flynns’ attempt to get around that by claiming there was no “legitimate public interest” in the story fails easily:
The speech here plainly fits the bill. QAnon itself is a topic of public concern, and the segment also reported on the connections between QAnon, January 6, and former president Trump. The Flynns acknowledge that the report as a whole was on matters of public concern. Dkt. 197 at 25– 26. They argue that including them in the report did not “further[]” any “legitimate public interest” because (1) they are not public figures and (2) “the clip does not relate to the public concern that is the subject of the Report.” Id.
The first argument misunderstands the law. The public-figure and public-concern tests have little to do with each other. Compare Lerman v. Flynt Distrib. Co., 745 F.2d 123, 137 (2d Cir. 1984), with Snyder, 562 U.S. at 453. And the second argument fails because it presumes the Flynns’ favored conclusion on the merits. Connections between QAnon and those in power were the core public concern addressed by the report. The clip of Michael Flynn—President Trump’s first National Security Advisor—saying a phrase associated with QAnon certainly addresses that concern, even if the Flynns think it was totally innocent.
It also appears (unsurprisingly) that the Flynns’ lawyers (unclear whether this part was Biss or Binnall) were, well, not good. In particular, the Flynns relied heavily on statements they mischaracterized to argue that to believe in QAnon means believing in a very specific set of beliefs. Then, if they could show they didn’t believe in all of those things, they claimed it could be shown that the statement was false and defamatory.
Yet, as the court notes, the Flynns’ insistence on a long list of necessary beliefs to be a supporter of QAnon is based on the Flynns’ lawyers mischaracterizing testimony:
Yet they have mischaracterized that testimony. The quoted material in the Flynns’ filings is almost entirely from the statements of the attorney conducting the deposition, which the witness does not endorse. From the outset, the witness makes clear that QAnon is a “fluid” set of beliefs, and he rejects that there are any unifying features other than some “memes” and “slogans.” Dkt. 198-1 at 20:2–24:22. Later, the witness says that “parts” of a statement about QAnon’s origins and effects are accurate, but he still resists that there are unifying beliefs or behaviors. Id. at 32:10– 36:25. Later still, the witness again rejects that QAnon has a stable core, instead noting that its “beliefs can be broad and evolving.” Id. at 87:12–89:2, 90:3–91:18. Finally, the witness notes that even the nature and identity of Q—surely what one would think of as forming the core of QAnon— are unsettled. Id. at 53:22–54:4. Even read in the light most favorable to the Flynns, the deposition (in context) clearly supports the idea that QAnon is an amorphous, undefined concept
Yeah. It’s not a good idea to totally misrepresent testimony. Judges don’t like that. In fact, at the end of the ruling, Judge Arun Subramanian even included an appendix with nearly five pages of the deposition to show the actual context that the Flynns misrepresented in their filings.
It seems that the Flynn’s argument was about as solid as QAnon’s own grasp on reality.
Hell, even the Flynn’s own expert witness seemed to undermine the crux of their argument:
And CNN points to other record evidence to shore up this point. CNN’s expert testified that QAnon is “elastic and difficult to define,” lacks a “coherent belief system,” and that there “is no definition [of] what a QAnon follower is, or what ‘following’ QAnon actually entails.” Dkt. 184- 6 at 4–5, 7. Similarly, the Flynns’ expert agreed that QAnon is an “a la carte belief system,” “not an [o]rthodoxy,” and there’s no “formula for how you indicate QAnon belief.”
And, again, the Flynns’ legal team did the pair no favors:
The Flynns’ filings themselves reinforce this theme. The very first paragraph of the amended complaint describes QAnon as “a far right-wing, loosely organized network and community of believers who embrace a range of unsubstantiated beliefs.” Am. Compl. ¶ 1. And rather than grounding the meaning of “QAnon” in something concrete, their other descriptions just add more value judgments to the mix. Id. ¶¶ 2–3, 15, 19, 23(a), 26 (describing QAnon as “right-wing,” a “deranged conspiracy cult,” “based on age-old racist and anti-Semitic beliefs,” promoting “ancient and dark biases and bigotry,” “detached from reality,” having an “utter disregard for the facts,” “mentally ill and crazy,” “dangerous,” “violent,” “racist,” “extremist,” “insurrectionist,” a “domestic terrorist organization,” and stating that “trusting the plan [is] an important part of QAnon belief” (internal quotation marks omitted)).
Perhaps one could argue (though the Flynns don’t) that the report itself gives “QAnon follower” some fixed meaning. But it doesn’t. At one point in the video, a commentator says QAnon is about “community”: “One of my big takeaways from attending the Q conference is that the QAnon movement is about so much more than just the predictions … it’s about the community. The people there felt like they were part of something big and revolutionary and that they were opposing absolute evil.”
The court notes that even the term “follower” is ambiguous and not something capable of being true or false (and thus, an opinion):
At its root, whether someone is a “follower” is deep in the political thicket: “When used in political discourse, terms of relation and association often have meanings that are debatable, loose, and varying, rendering the relationships they describe insusceptible of proof of truth or falsity.” Egiazaryan v. Zalmayev, 880 F. Supp. 2d 494, 512 (S.D.N.Y. 2012) (internal quotation marks omitted) (applying Buckley to the statement that someone was a “leader” of a political party). Similarly, the Flynns tried to show that QAnon has a belief system by quoting the reporter’s testimony that “QAnon ha[s] become[] like a religion.” Dkt. 197 at 4 (citation omitted). But that comparison precisely illustrates the problem. All the difficulties discussed above show why courts are loath to decide who is a true believer. Cf. Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”).
Also, to make this even crazier, the court notes that adherents to QAnon are told to deny that they follow QAnon:
Finally, there is also a unique twist to QAnon followership. It is undisputed that “Q instructed his followers to deny being QAnon followers.” Dkt. 212 ¶ 7. If a QAnon follower is asked under oath whether she is a QAnon follower, what is the honest response? And how should the jury interpret it? This problem feels a bit like trying to hold a trial on opposite day: Saying yes violates a supposed tenet of followership. Does that mean she’s not a true believer, making her answer untrue? If she answers no, is she really lying? After all, Q told her that “[t]here is no ‘Q[A]non.’” Id. Exactly how one untangles this brain teaser isn’t dispositive; it’s just another point of ambiguity.
Then the court notes that even if one could “verify” whether or not someone was a QAnon follower, it still wouldn’t be defamatory. This is because it’s a conclusion based on disclosed facts.
Calling the Flynns “QAnon followers” was a conclusion based on the following disclosed, nondefamatory facts: (1) the Flynns stood with Michael Flynn, their right hands raised, as he recited the phrase “where we go one, we go all,” and (2) the phrase was a QAnon slogan. The Flynns don’t fight these facts. On the first part, they haven’t challenged the clip’s authenticity. As to the second, they say they didn’t know that the phrase was a QAnon slogan. Dkt. 212 ¶¶ 9–12. But that’s irrelevant. They don’t contest that the phrase was in fact a QAnon slogan, and true statements are nondefamatory. See id.; see also Dkt. 221 at 3 (the Flynns’ submission referring to “the now-infamous QAnon slogan”); Gross v. Pare, 185 A.3d 1242, 1247 (R.I. 2018) (“[T]he events upon which [the plaintiff’s false-light] claim is premised actually occurred; therefore we cannot logically conclude that any publication regarding the dispute at issue was false or fictitious.”).
The Flynns disagree that the video included a factual basis for their being QAnon followers. Dkt. 221 at 3. Yet this argument is in tension with the most basic part of their case: that a reasonable viewer would infer from the video that they were QAnon followers. The reasonable viewer must have some factual basis to draw the inference. It is not enough that they merely appeared in a video that also included QAnon followers. Several reporters and news anchors appear in the video, but it’s obvious from context that the video isn’t calling them “QAnon followers.” And as noted above, the Flynns admit that they were “friendly” and partly “aligned with QAnon,” often posting or reposting QAnon-related content…..
And thus, the motion for summary judgment by CNN is granted, and the case is dismissed. Another SLAPP case tossed. It’s just too bad it didn’t come much earlier in the process.
Back in the spring of 2021, we wrote briefly about yet another Steven Biss SLAPP lawsuit. This one was filed by the brother of disgraced former National Security Advisor Michael Flynn, Jack Flynn, arguing that CNN defamed him by showing a video of both Flynns and other family members, repeating the QAnon slogan “where we go one, we go all” while implying that the Flynns were “followers” of QAnon. The CNN report barely mentioned the Flynns at all. It was a report about a QAnon gathering, but showed the clip, which the Flynns themselves had placed on social media. Jack Flynn, with Steven Biss as his lawyer, argued that this clip was defamatory.
The case has been contentious since then with papers flying back and forth, including CNN even trying to block Biss from being able to appear before the court at all:
Here, this Court should deny Mr. Biss’ application because he has a history of making bad faith allegations against defendants in defamation actions, including his conduct towards CNN. Just a few days ago, the United States District Court for the District of Maryland sanctioned Mr. Biss in the amount of $21,437.50 in attorneys’ fees and $52.26 in expenses because he “engaged in bad faith conduct in filing the last-minute Amended Complaint” against CNN.
The court allowed Biss to appear, and generally the case has mostly gone as many Biss’ cases seem to go: with lots of wacky claims from Biss that don’t survive much scrutiny. The magistrate judge assigned to the case issued a report recommending the Article III judge reject all of the claims, but deny CNN’s request for fees.
However, rather than accept all of the magistrate judge’s recommendations, the judge (somewhat generously, I’d argue) allowed a false light claim to stick around, arguing at this stage of the process (the motion to dismiss stage), the court needed to accept all of the Flynns’ allegations as true, so if they claim they’re not followers of QAnon, that has to be taken as true, and that allowed the false light claim to live on. CNN asked the court to reconsider, highlighting what appeared to be similar cases that were dismissed, and arguing there can be no false light when it is “substantially true” that the Flynns’ showed public support for QAnon.
This Court clearly erred in failing to dismiss Plaintiffs’ false light claim. Having
concluded that Plaintiffs’ public statements “express support for QAnon,” see Dkt. 42 (“M&O”)
at 8, this Court should have applied the substantial truth test articulated in Masson v. New Yorker
Magazine, Inc., 501 U.S. 496 (1991) and Tannerite Sports, LLC v. NBCUniversal News Group,
864 F.3d 236 (2d Cir. 2017), and concluded that the alleged defamatory sting of the Report – i.e.
that Plaintiffs are QAnon followers – is substantially true. Yet, this Court never undertook the
substantial truth analysis. Once the Court does so, given Plaintiffs’ public decision to align
themselves with QAnon, no reasonable reader could conclude that it is materially false to
describe Plaintiffs as QAnon followers.
Part of CNN’s argument is that Jack Flynn retweeted multiple tweets that, at the very least, suggest that he supported QAnon.
It is undisputed that the Flynns made – and Jack Flynn himself retweeted – a public
video showing Plaintiffs using a phrase that is used solely by those within the QAnon movement:
“where we go one, we go all” (the “QAnon Phrase”), accompanied by the hashtag
#TakeTheOath. See Am. Compl. ¶ 4, n.2. It is undisputed that Plaintiffs posted or liked multiple
tweets containing the hashtag for that Phrase (#WWG1WGA), in addition to other statements
and imagery that expressed or implied support for the movement. See Motion at 3-4. It is
undisputed that Jack Flynn, as Magistrate Judge Cave correctly pointed out, tweeted on August
21, 2020 that “Q” and “where we go one, we go all” “works for me.” See Dkt. 38 (“R&R”) at 4.
And it is undisputed that “where we go one, we go all” is “a slogan used by adherents of the
QAnon conspiracy theory.” United States v. Languerand, No. 21-CR-353 (JDB), 2021 WL
3674731, at *3 (D.D.C. Aug. 19, 2021). Plaintiffs publicly aligned themselves with QAnon.
Quibbling with the nuance of describing Plaintiffs as QAnon supporters rather than followers is
inconsistent with the substantial truth standard articulated in Masson and Tannerite. That is
particularly so where, as here, some of Plaintiffs’ actions were literally to follow other QAnon
speakers on Twitter and retweet their statements
And, then that takes us to the ruling this week, in which the judge, Gregory Woods, gets to explain, in detail, why retweets are not endorsements:
What does it say about you if you “follow” someone on Twitter? What does it say about you
when you retweet someone else’s tweet? These are not just questions for Millennials or Zoomers.
They are critical questions in this motion to dismiss. CNN argues that the Court should conclude as
a matter of law that by retweeting another’s tweet, the retweeter is adopting every word in the tweet
as their own. A retweet, in CNN’s view, cannot merely be used to comment on another’s tweet or
to forward the fact of its existence to another. CNN also argues that the Court should adopt the
position that when you “follow” a person’s Twitter feed, you become that person’s “follower,” in
the sense that you are now an adherent to the entire belief system of the tweeter. By following
someone on Twitter, in CNN’s view, you are not merely interested in seeing what the person you
are following has to say. The Court remains unwilling to adopt as a matter of law CNN’s sweeping
assertions regarding the significance of a retweet, or what it means to “follow” someone on Twitter,
and therefore denies CNN’s motion for reconsideration in part and denies CNN’s motion to certify
an interlocutory appeal.
As others, including Prof. Eric Goldman have noted, it’s kind of weird that this case even got this far. There are all sorts of reasons why the court should have dismissed this clearly frivolous case. Indeed, the judge even seems to recognize that the case is unlikely to survive summary judgment (the next stage after some level of discovery), but keeps repeating that at the MtD stage, he can’t yet look at evidence, and has to take the Flynns’ claims that they’re not followers of QAnon as truth.
In some ways, keeping this case alive is frustrating, since there are all sorts of ways in which the court could have dumped it (as the magistrate judge recommended). Also, it seems quite unlikely that the case will survive summary judgment. But, because the judge is allowing the case to continue it becomes even more costly, as the discovery and efforts around summary judgment can really add up.
That said, the underlying point made by the judge is actually good and useful. We shouldn’t be held legally liable for retweets or who we follow online. And there are some quotes in this decision that will likely be useful in other cases where plaintiffs seek to hold others legally liable for retweets:
CNN’s argument places far too much weight on the significance of the Flynns’ social media
activity. Crucially, none of the Flynns’ tweets state that they are believers in the QAnon movement.
For instance, in one of Jack’s tweets on August 20, 2020, Jack stated “I advocate for the
Constitution and Bill of Rights. If Q does too~No harm no foul.” Am. Compl. ¶ 23. Similarly,
after a Twitter user replied to one of Jack’s tweets with a tweet stating, “We are with you Jack!”
along with an image of the letter ‘Q’ and the slogan “where we go one we go all” superimposed over
an American flag, Jack tweeted, “If this means you believe in the constitution and equal justice under
the law then this works for me.” Id. As the Flynns identify in the complaint, while Jack’s tweets
“embraced the Constitution and equal justice under the law,” Jack’s tweets do not state that he
believes in “the dangerous, extremist, racist, anti-Semitic and violent beliefs espoused by QAnon.”
Id. The Court cannot assume that Jack believes in every viewpoint held by the QAnon movement
merely because Jack tweeted that he shares QAnon’s alleged belief in the Constitution, the Bill of
Rights, and equal justice under the law. CNN’s assertion that believing in these principles
automatically makes someone a QAnon adherent is simply wrong. A person can believe in certain
viewpoints espoused by a movement without believing in all aspects of the movement.
In addition, CNN argues that the Flynns “publicized their support for QAnon” through
retweets. Mot. at 3. In the R&R, Judge Cave also relied on the Flynns’ retweets to support the
conclusion that CNN’s statement was substantially true. In one example, Jack retweeted a post
which stated, “Qanon is not a violent conspiracy. We are every day people seeking truth.
. . . . Qanon’s, share and tell your story.” Mot. at 3. Judge Cave concluded that “[b]y using the
word ‘we,’ Jack included himself as one who ‘follows the opinions’ of QAnon, and invited others
who ‘share[d]’ those opinions to join his comments.” R&R at 31. By relying on the Flynns’
retweets, CNN assumes that the Flynns believed in, and adopted, everything that they retweeted. In
essence, CNN is asking the Court to conclude as a matter of law that retweeting a statement is the
same as making the statement in the first instance.
The Court disagrees. Jack did not make the statement, “We are every day people seeking
truth.” He retweeted it. There are many reasons that someone might retweet a statement; a retweet
is not necessarily an endorsement of the original tweet, much less an endorsement of the
unexpressed belief system of the original tweeter, as CNN would have it. Therefore, at the motion
to dismiss stage, the Court cannot conclude as a matter of law that Jack adopted the content of the
tweet and was therefore calling himself a member of the QAnon movement by using the word
“we.” Nor can the Court conclude that the Flynns personally believed the other statements that
they retweeted, particularly in light of the Flynns’ factual allegation that they do not share the beliefs
of the QAnon movement.
That said, some of the ruling is a bit worrisome in its own way, as it suggests that as long as someone doesn’t agree with EVERY principle of a group, it could be false light to call them “a follower” of that group. That can’t be correct either, because obviously there are tons of “followers” of different religions, philosophies, gurus, etc. who don’t believe each and every tenet of those they follow. But should it then be false light for someone to suggest, in passing, that they’re followers? That seems like a stretch.
So, in the end, this case is a weird one. It still seems like a pretty obvious SLAPP suit that should have been done away with quite early. But, for now it lives on. Overall, the case still seems like a likely loser. The defamation claims have all been dismissed. All that’s remaining is this very weak false light claim, where the court is already telegraphing that after it can consider actual evidence that will be presented during the summary judgment stage, CNN still seems likely to succeed.
But, out of all of this mess, there is still something kind of useful: a court saying that retweets (and follows) are not, by themselves, endorsements of the views within.
So, all of you who have “retweets are not endorsements” in your bios can maybe delete that now. It’s official.
Lawyer Steven Biss has built up quite a reputation for himself over the past few years, especially in filing highly questionable, obviously bogus SLAPP suits on behalf of Rep. Devin Nunes and a rotating cast of characters in and around Trumpist orbits. For example, he just recently was the lawyer for Jack Flynn, the brother of disgraced (briefly) former National Security Advisor Michael Flynn, in suing CNN for pointing out that the Flynns had repeated some standard QAnon conspiracy nonsense in a video recorded at a family barbecue, and posted online with some QAnon hashtags. Jack was in the video which was then featured in a CNN story about QAnon. The crux of the defamation claim is this:
In the piece, O’Sullivan falsely claimed that “where we go one, we go all” was an “infamousQAnon slogan promoted by Trump’s first National Security Advisor Michael Flynn”.
The lawsuit tries to argue that “where we go one, we go all” is not in fact a QAnon slogan (they claim that the phrase goes back to John F. Kennedy — ignoring the fact that today it absolutely is associated with QAnon as are the hashtags that Flynn used in posting it). The lawsuit is laughable and is likely to be laughed out of court like every other Biss SLAPP suit.
Speaking of which, days later, in yet another Biss SLAPP suit, a court finally sanctioned Biss. This case loosely involves Nunes, even though Nunes is not technically a party to the case. Instead, it involves one of Nunes’ top advisors, Dereck Harvey. You might recognize Harvey from another story, about the time when Biss sent a letter on behalf of Nunes… threatening to sue fellow Congressional Rep Ted Lieu. In that story, we noted that just as Nunes was threatening Lieu, Congress had released a bunch of documents showing how Nunes’ aide Harvey had worked with the since indicted Lev Parnas to try to set up some meetings between former Ukranian officials and Nunes.
That takes us to the present case. Back in October, Harvey sued CNN and Parnas over statements that were made on CNN, based on statements from Parnas and his lawyer, Joseph Bondy, about alleged efforts by Harvey to set up meeting with those very same former Ukrainian officials and his boss, Nunes. In February, the case was dismissed against CNN — noting that the complaint failed to describe how the statements were defamatory, and a bunch of them weren’t even about Harvey himself (which they’d need to be in order to be defamatory).
The judge gave Biss and Harvey a chance to file an amended complaint, which they did, at the very last minute.
Anyway, it would appear that the judge is not impressed by Biss’s lawyering here, taking just a few weeks to dismiss the case and tell Harvey and Biss they’re on the hook for CNN’s legal fees. As the court notes, this whole case really seems to be a sort of Nunes-lawsuit-by-proxy:
As this Court previously explained, Harvey’s suit is at heart, a continuation of litigationof Congressman Nunes with respect to media coverage of his own political efforts in supportof former President Trump… In fact, this Court was hard pressed to see how several of the allegedly defamatory statements cited in Harvey’s original Complaint had much to do with the Plaintiff at all, as they focused almost entirely on the actions of Congressman Nunes….
Also, as was found in the original dismissal, most of the statements in question were not actually defamatory:
It was also unclear to this Court how the statements at issue were in fact defamatory in nature, tending to “expose a person to public scorn, hatred, contempt, or ridicule.”… Harvey was acting as a Senior Advisor to Nunes, the “leader of the Republican opposition” to the first impeachment of former President Trump, and the public record includes House Republicans’ statements that there was “nothing wrong with asking serious questions” about the Bidens and their dealings with Ukraine. To suggest it was defamatory for CNN to state or otherwise imply that Harvey was assisting Nunes in his investigation of a political rival is simply without merit.
The point of an amended complaint after the initial complaint has been dismissed without prejudice is to fix the problems with the complaint (i.e., fixing the deficiencies that resulted in the case being dismissed). But it appears that didn’t happen here and the judge seems to recognize that almost no effort was made here at all, other than to drag out the case.
The Plaintiff has done nothing to address this Court’s concerns that the statements have little do with Harvey at all. The statements allege nothing more than that Harvey was a source of information about Congressman Nunes or an unnamed subordinate acting in compliance with the orders of his superior…. The Plaintiff has also failed to address the fact that none of the statements are materially false… Adding the phrase “materially false” to certain paragraphs of the Amended Complaint does not change the substance of the statements, or the facts related to this case. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice.”) The Plaintiff did omit a portion of what is now alleged as Statement 5 that this Court held was clearly unactionable due to its status as an opinion…. However, with respect to Statement 5, Harvey still fails to state a claim on the bases that the statement only references Harvey as a source of information about Congressman Nunes and is not materially false.
Harvey made some additions to his Amended Complaint that were presumably meant to address this Court’s concerns that none of the statements were actually defamatory. For example, Harvey added allegations that CNN’s publications “could cost him his security clearance and subject him to discipline.” … He also asserts that CNN’s reporting falsely accused him of publishing “derogatory statements concerning Nunes’ Plaintiff’s superior” and that the accusations “were highly prejudicial’ to his employment with the congressman…. Theses additions do not aide the Plaintiff’s case.
There’s also the issue of actual malice. Harvey tries to argue that he’s not a public figure so the actual malice standard doesn’t matter, but as the court said in its original ruling, under 4th Circuit precedent, he clearly is. So then, there’s this attempt to challenge the actual malice standard that the judge is (rightly) having none of:
Harvey’s next argument regarding actual malice is even less meritorious. Harvey asks this Court to completely ignore Supreme Court precedent and reconsider what he asserts to be an outdated actual malice standard established by New York Times Co. v. Sullivan… As Plaintiff’s counsel has already once been instructed, “for obvious reasons” a district court cannot simply overturn a decision of the Supreme Court. The actual malice standard as articulated by the Court in Sullivan controls in this case, and for the same reasons detailed in this Court’s earlier opinion, Harvey has failed to state a plausible claim that CNN and its reporters made any of the statements at issue with actual malice.
You almost get the feeling these batshit crazy cases are an attempt to get a case up to Clarence Thomas, given his well publicized desire to get rid of the Sullivan standard.
Either way, the court decides that this weak showing is easily sanctionable:
In the previous Memorandum Opinion, this Court specifically stated that Plaintiff Harvey was permitted to file an Amended Complaint if he possessed facts to cure the “manifest deficiencies” addressed in that opinion by March 4, 2021…. This Court also specifically warned that such Amended Complaint would be subject to dismissal if the Plaintiff failed to cure the noted deficiencies…. Nevertheless, after the clerk’s office of this Court had closed and just hours before the deadline of midnight on March 4, 2021, the Plaintiff filed an Amended Complaint nearly identical to the original Complaint filed in thiscase and thoroughly discussed in this Court’s Memorandum Opinion. As the above analysis explains, the Plaintiff did not cure any of the deficiencies noted by the Court. The filing of such an Amended Complaint is the sort of bad faith courts have repeatedly found to merit sanctions under 28 U.S.C. § 1927 and the courts’ inherent power to sanction…..
… This Court finds that Plaintiff Harvey’s filing of the Amended Complaint unreasonably multiplied the proceedings in this case, and this Court is satisfied that it is appropriate to impose a sanction as to the Plaintiff and his counsel under this court’s inherent authority
The end result is that a combination of Harvey, Biss (and a third lawyer in the case who was seeking to get off the case) are on the hook for CNN’s legal fees in the case. Of course, since it’s never been clear who has been paying Biss for all these lawsuits in the first place, it remains unclear who will be paying the sanctions as well.
A bunch of politicians who’ve sold their souls for hospitality discounts at Trump properties are claiming the election is illegitimate. Multiple lawsuits have been filed. Most of them have failed. Those on the side of Trump seem to believe they can contest the legitimacy of the election without having any Trump votes nullified. Wild ass claims about voter fraud have yet to be proven.
President Donald Trump convened a heated meeting in the Oval Office on Friday, including lawyer Sidney Powell and her client, former national security adviser Michael Flynn, two people familiar with the matter said, describing a session that began as an impromptu gathering but devolved and eventually broke out into screaming matches at certain points as some of Trump’s aides pushed back on Powell and Flynn’s more outrageous suggestions about overturning the election.
Flynn had suggested earlier this week that Trump could invoke martial law as part of his efforts to overturn the election that he lost to President-elect Joe Biden — an idea that arose again during the meeting in the Oval Office, one of the people said.
Nothing says “small government conservatism” or “law and order” like presidential calls for troops roaming the streets rounding up people who won’t pledge allegiance to the guy who lost both sets of votes. Thank ye various gods Trump pardoned Flynn, just so Flynn could pitch martial law to the failed autocrat who refuses to recognize a majority of the American voters don’t want him in office anymore.
Then there’s Sidney Powell — a so-called lawyer whose batshit lawsuits caused Trump to kick her to the curb in late November. Powell gathered evidence derived from conspiracy theorists and the person behind QAnon (but I repeat myself…) and saw every court she encountered kick her out for wasting their time. To the true believers, this indicated the courts were part of the “deep state.” To rational observers, this indicated Powell had spectacularly failed to find evidence of voter fraud.
To those less rational, this was “evidence” of something else. And now these morons are glomming onto a tweet from the equally moronic Dan Scavino, one of Trump’s advisors. It’s Trump looking at a portrait of Abraham Lincoln. And it’s supposedly an endorsement of martial law, something Lincoln declared during the midst of an actual CIVIL FUCKING WAR. And it was ruled unconstitutional by the courts.
Forget 4-D chess. This is a whole new era of CalvinBall. Every failure is a victory. Every judicial benchslap is an argument for the forcible subjugation of citizens unwilling to view an election loser as an election winner.
The White House is on fire. And this time, it’s not the Brits engaging in a last-ditch effort to reclaim authority over rebellious colonists. Instead, it’s the party that co-opted Boston Tea Party imagery to push back against government overreach. The Tea Party may have had some admirable goals. But they sold them out to become part of Trump’s entourage — people willing to raise Gadsden flags while welcoming the government’s attempts to take their rights (guns, voting, speech) away at gunpoint. I sincerely hope the end result of this four-year debacle is the ostracizing of every political opportunist who exchanged their principles for an opportunity to lick Trump’s size 6 platforms.
Steven Biss has lost again. A week after losing one of his many, many lawsuits representing Congressman Devin Nunes, and also facing possible sanctions in another case, a judge has dismissed yet another one of his SLAPP suits. Once again, as is often the case with Biss, the lawsuit was nonsense, included aspects that were much more performative than legally sound, and was somehow tied to various conspiracy theories and right wing wackiness. As we highlighted last week, it’s noteworthy how many of Biss’s clients seem to have connections to one another, and this case is no different.
This case was filed last year by a Russian-born academic, Svetlana Lokhova, suing Cambridge academic Stefan Halper and a variety of media properties and journalists, including the New York Times, the Washington Post, the Wall Street Journal, and MSNBC. At issue were effectively follow ups on a flurry of stories in early 2017 (that date becomes important in a moment), soon after Michael Flynn was forced to resign as Donald Trump’s first National Security Advisor, under a cloud of suspicion on a variety of fronts. A variety of media organizations reported that US intelligence officials “had concerns” about Flynn and some possible connections to Russia, including a dinner he had with a group of people at Cambridge, which included (among others) Lokhova. Lokhova seems to blame Halper for these stories — and thus sued him and some of the media outlets that reported them.
The stories all focused on Flynn, and specifically the concerns of US intelligence agencies about Flynn. Some of them, such as the NY Times story from 2018, don’t even name Lukhova, and only obliquely refer to someone who might be her. This is also true of a 2018 Washington Post story that describes Lukhova in reference to Flynn, but also fails to even name her. And yet, in 2019, Lokhova sued for defamation — using Biss as her lawyer.
What’s notable here is that just a month before the lawsuit was filed, Rep. Devin Nunes (that guy?!?) referenced Lukhova in a Fox News interview right after the Mueller Report came out, and Nunes suggested that he wanted to investigate if there was someone who “set up” misleading evidence in order to create the Mueller investigation. This was part of Nunes’ ongoing efforts to build up a bizarre conspiracy theory regarding the Mueller Report — to the point that he’s saying Mueller’s team should face criminal charges and that he’s planning to make “some type of criminal referral.” Nunes seemed to argue that whoever “accused” Flynn of “having some type of Russian fling” needs to be investigated:
“The first is involved with Gen. Flynn,” Nunes said. “Gen. Flynn was supposedly entrapped, was meeting with a Russian woman. I want to know what really happened there because we are just now finding out about this and we need a lot more information on what really was general Flynn doing. It’s a big deal if somebody within our intelligence agencies were accusing a three star general of having some type of Russian fling. It’s serious stuff. I want to get to the bottom of that.”
Either way, in April he mentions her, and then a month later she’s represented by the same lawyer representing him and a variety of other loosely connected political operatives who all seem to be pushing similar conspiracy theories. Quite a coincidence!
Anyway, as you probably know, defamation law has a statute of limitations that varies by state. In Virginia, like many states, the statute of limitations is one year. Most of the articles and statements being sued over came way before that. This is something that a good lawyer should have known about. Biss tried to argue that because people have been tweeting links to those older articles, it resets the clock. That, of course, is not how any of this works. In defamation cases, there’s something called the single publication rule, which means that you date the statute of limitations to when the statements were first made, leading the judge to easily toss out the claims on most of the articles. Other attempts to reset the statute of limitations also fail, including a claim that because a more recent NY Times article links back to the earlier one, that counts as “republication.” As the court notes, if the new article was actually referencing her, she might have an argument, but it isn’t.
Although this argument might be meritorious in other contexts, it fails here. The New York
Times’ April 9, 2019 article, titled “Justice Dept. Watchdog’s Review of Russia Inquiry Is
Nearly Done, Barr Says,” does not mention or concern Lokhova; instead it focuses on the
Inspector General’s investigation “into aspects of the Russia inquiry, including whether law
enforcement officials abused their powers in surveilling a former Trump campaign aide.” See
Am. Compl. ,r 5 (linking to https://www.nytimes.com/2019/04/09/us/politics/russiainvestigation-
barr.html). The article’s discussion of Halper includes a sentence containing a
hyperlink to the May 18, 2018 article. Id. The underlined portion of the following sentence
contains the hyperlink: “Mr. Halper’s contacts have prompted Republicans and the president to
incorrectly accuse the F .B.I. of spying on the campaign.” Id. This statement does not
substantively alter or add to the portion of the May 18, 2018 article that allegedly defamed
Lokhova. “[U]nder traditional principles of republication, a mere reference to an article,
regardless how favorable it is as long as it does not restate the defamatory material, does not
republish the material.” In re Philadelphia Newspapers, LLC, 690 F.3d at 175. This is because
“[ w ]bile [ a reference] may call the existence of the article to the attention of a new audience, it
does not present the defamatory contents of the article to the audience.” Salyer v. Southern
Poverty Law Center, Inc., 701 F.Supp.2d 912, 916 (W.D. Ky. 2009) (emphasis in original).
Under this persuasive case law, the New York Times’ 2019 article does not retrigger the statute
of limitations for the May 18, 2018 article.
Biss, laughingly, tries to argue that because other people have linked to those older articles, that resets the liability for those beyond-the-statute-of-limitations pieces. The court is not buying it.
This argument is similarly unpersuasive. Lokhova has not cited any case holding that a
media organization is liable in perpetuity for third-party tweets of its allegedly defamatory
materials. Indeed, Lokhova’s argument is inconsistent with persuasive case law from other
courts, which “have concluded that statements posted to a generally accessible website are not
republished by” “a third party’s posting the statement elsewhere on the internet.”
There’s a lot more, but systematically the court explains over and over again why Biss’s legal arguments are wrong.
There are two publications that do fall within the statute of limitations, though. One by the Washington Post (mentioned above, which does not even name Lokhova) and a tweet by MSNBC’s Malcolm Nance. For what it’s worth, earlier in the opinion, the court pointed out that Nance was added as a defendant only with a later amended complaint, and it appears that no effort was ever made to serve him with the lawsuit. Indeed, the court throws out the claims regarding Nance on this basis alone:
Although Nance was added as a defendant in the Amended Complaint on August 29, 2019,
plaintiff has made no effort to serve him with that complaint. Plaintiffs failure to serve Nance
was raised at the October 25, 2019 hearing, which placed Lokhova and her counsel on clear
notice that service was required. As such, in addition to the substantive reasons discussed in this
Memorandum Opinion, the complaint against Nance will also be dismissed because by not
making any effort to serve Nance, plaintiff has apparently abandoned her claim against him.
As for the Washington Post article, the court points out just how ridiculous those claims are, in part because the only direct statements that Biss/Lokhova claim are defamatory are… not.
The complaint identifies only two statements in the entire 2,262-word Post article
(Attachment B) that are allegedly false and defamatory of Lokhova: (I) that Halper “attended” the February 2014 dinner, and (2) that “Halper and Dearlove were disconcerted by the attention
the then- DIA chief showed to a Russian-born graduate student who regularly attended the
seminars, according to people familiar with the episode.”… Even assuming the first statement to be false, the statement does not defame anyone, and clearly
is not “of and concerning” Lokhova; it relates to Halper alone. The second statement does not
name Lokhova and simply includes a generic reference to a “Russian-born graduate student who
regularly attended the seminars.” Even assuming that the statement is “of and concerning”
Lokhova and is false, it does not defame her. At most, the second statement suggests there were
concerns about Flynn’s behavior towards Lokhova, without stating or implying that Lokhova
herself did anything improper. The same conclusion applies when the two statements are
considered together, and in the context of the other statements in the article as a whole,
particularly because the sentence immediately following the second quote provides a clear
disclaimer of any wrongdoing: “the student and a Defense Department official traveling with
Flynn have denied that anything inappropriate occurred.”… In short, there is
nothing in this article that defames the plaintiff.
Various other claims are easily tossed out as well for this reason or that. Throughout the ruling, though, you can steadily see Judge Leonie Brikema’s frustration with Biss’s legal strategy. Early on, in a footnote, the judge points out that Biss’s complaint has the appearance of being filed for political reasons, rather than legitimate jurispredential concerns:
Although Flynn is not a party to this action, the complaint frequently mentions him. Indeed,
some portions of the complaint do not focus on Lokhova, but instead discuss Flynn, Halper,
President Donald J. Trump, and others. For example, one paragraph of the complaint states that
during a BBC radio program in May 2017, “Halper misrepresented that ‘people are deeply
concerned about the erratic nature of this White House.”‘… Such unnecessary and
irrelevant statements suggest that political motives, more than legitimate jurisprudential
concerns, drive this litigation.
Later on, another footnote calls out another attempt by Biss to try to claim possibly defamatory statements within the statute of limitations, and notes that one of them happened after the complaint was filed, which is not how any of this works. It further notes that a mere phone call between Lokhova and a journalist isn’t “publishing” for purposes of defamation. In other words, this is just bad lawyering all around.
… the complaint alleges
that on an unspecified date, Halper told a chief reporter with the Sunday Times of London that
Lokhova was a Russian spy… The placement of this allegation within the
complaint’s chronology suggests Lokhova is alleging that this statement occurred in December
2016, which would make it time-barred. The complaint then alleges that on December 19, 2019,
the reporter “called Lokhova and repeated the false allegation.” This allegation is obviously
erroneous, because December 19, 2019 had not yet occurred when the complaint was filed. Even
if this phone call took place within the statute of limitations, it would not constitute defamation,
because the complaint does not allege that the call involved anyone besides the reporter and
Lokhova.
The judge also notes that Biss — as he has done in other cases — uses the kind of language not commonly found in legal complaints. Halper asked for sanctions against Biss, and while the court declines to issue such sanctions, the judge clearly looks skeptically upon Biss’s actions:
The record is clear that Biss filed an excessively long complaint and amended complaint
on Lokhova’s behalf directing unprofessional ad hominem attacks at Halper and others. For
example, the complaint calls Halper a ”ratf***er,”… and refers to the media
defendants as “stooges,” … Such language adds nothing but unnecessary heat to this
litigation. Moreover, the complaint exaggerates the nature and content of the allegedly
defamatory statements. In addition, Biss and Lokhova had to have known that most of her claims
were time-barred, as she had previously filed an unrelated defamation lawsuit in the United
Kingdom, which was dismissed as untimely under the one-year statute of limitations applicable
in that jurisdiction.
It’s not that surprising that the court has refused to issue sanctions. Very few judges will, and it generally takes very extreme behavior — and most judges are willing to give lawyers the benefit of the doubt for a very long time. But the judge here at least notes that she’ll be paying attention to future actions in this case, should they occur:
Although the Court does not condone the tactics employed by Biss and Lokhova in this action, their conduct is not sufficient to warrant the
draconian measure of imposing sanctions at this time. The allegations of improper behavior by
Biss are undoubtedly more severe than those by Lokhova, and should Biss file further
inappropriate pleadings or pursue frivolous post-judgment litigation against any of these
defendants, sanctions might well be justified.
For what it’s worth, Lokhova has already announced that she will be “appealing the decision on many grounds.” That won’t work. Considering that almost all of the case was thrown out for being outside the statute of limitations, there’s not much chance of anything happening on that front. Not surprisingly, on Twitter, various Lokhova supporters are already concocting fanciful conspiracy theories about the deep state and the “leftist judge” so this nonsense isn’t over yet.
We’ve written a few times about Rep. Devin Nunes, who heads the House Intelligence Committee. He’s been a long-time vocal supporter of NSA surveillance. He insisted that there was no need for reform after the Snowden leaks and he actively misled the publicand other members of Congress to shoot down an amendment that would have stopped so-called backdoor searches of “incidentally collected” information on Americans. Nunes falsely claimed that by blocking backdoor searches of the 702 database, it would have blocked things such as tracking whether or not the Orlando nightclub shooter had overseas contacts (it would not have done that at all).
?I expect for the FBI to tell me what is going on, and they better have a good answer,? said Rep. Devin Nunes (R-Calif.), chairman of the House Permanent Select Committee on Intelligence, which is conducting a review of Russian activities to influence the election. ?The big problem I see here is that you have an American citizen who had his phone calls recorded.?
Uh, dude, you approved this kind of thing (loudly and proudly), and not only that, but you actively blocked suggested amendments that would have blocked the using of this information to dig into information on US persons. Maybe it’s time to rethink that one, huh? Of course, (former assistant Attorney General) David Kris (who knows this stuff probably better than anyone else) has made it clear that Flynn’s calls with a Russian official wouldn’t need to be “minimized” (i.e., have his identity excluded) because “a U.S. person?s name can be used when it is necessary to understand the foreign intelligence information in the report.”
Of course, there’s lots of irony to go around here. Timothy Edgar — who was the director of privacy and civil liberties for the White House National Security staff under Obama (and also did privacy/civil liberties work in the Bush administration) has noted that the leaking of the contents of his phone calls actually means that Flynn’s own civil rights have been violated and even suggests he gives the ACLU a call (oh, and another layer of irony: Edgar has been warning about how Flynn and others in the Trump administration might trample on civil liberties… and yet here, he’s arguing that Flynn’s civil liberties have been violated.)
Along those lines, Glenn Greenwald notes that the leaking of actual content from intercepted communications is a really serious crime, but one that should be seen as totally justified here, as it was clearly a form of whistleblowing (even as he admits that the motives of the leakers likely weren’t pure, but were possibly for revenge against Flynn, who many in the intelligence world disliked).
It is a big deal to actually leak the contents of an intercepted communication (most leaks and whistleblowing tend to be about programs, not the actual intercepted communications). Of course, this should raise other questions about why the NSA and FBI are surveilling so many people — and will the content of those other calls be used for political vendettas rather than true whistleblowing? Unfortunately, it seems unlikely that someone like Devin Nunes is going to care about all that. In typical “high court/low court” fashion, he’s only concerned that someone on his team was hurt by such surveillance, not that such surveillance regularly occurs.
As we discussed over and over again during the past eight years, the Obama White House — despite a first day pledge to be “the most transparent administration in history” — was actually quite famous for its extreme secrecy, combined with a seriously paranoid view of anyone leaking anything unflattering to the White House. As we detailed, the Obama White House declared any unflattering leaks as “aiding the enemy.” And, of course, the Obama administration went after more leakers/whistleblowers with Espionage Act claims than all other Presidents in history combined.
So, now, I guess we’ll see what the Trump administration does about leaks. So far, in just the first few weeks of the Trump administration, the number of leaks out of the White House has been fairly astounding. There are leaks on just about everything, with some being just downright silly (and a few being literally unbelievable). In a larger report in Politico on how Trump is adjusting to the job of being President, there’s a brief mention that he’s getting increasingly frustrated by the leaks and is seeking to have them stop:
After Trump grew infuriated by disclosures of his confrontational phone calls with foreign leaders, an investigation was launched into the source of the leaks, according to one White House aide. National Security Council staffers have been instructed to cooperate with inquiries, including requests to inspect their electronic communications, said two sources familiar with the situation. It?s not clear whether the investigation is a formal proceeding, how far along it is or who is conducting it.
The administration is considering limiting the universe of aides with access to the calls or their transcripts, said one administration official, adding that the leaks ? and Trump?s anger over them ? had created a climate where people are ?very careful who they talk to.?
And, now, in the wake of a variety of leaks that resulted in National Security Advisor Mike Flynn resigning, the President is trying to shift the story to being about leaks:
The real story here is why are there so many illegal leaks coming out of Washington? Will these leaks be happening as I deal on N.Korea etc?
This is only marginally hilarious, coming from the same President who regularly praised Wikileaks during his campaign, and who almost certainly owes his presidencey, in part, to multiple damaging leaks on his opponent during the campaign. Sean Spicer doubled down on this angle in a press briefing today — after joking about how he needs to stop lecturing reporters on what stories to cover, he proceeded to lecture them about the idea that they should be focusing on the existence of White House leaks as the real story.
Of course, Washington DC is a town that thrives, and often seems to live off of, leaks from the government. I can imagine just how frustrating it must be to experience it first hand, but it sort of comes with the territory. It’s also a very, very important way in which the public is able to hold the government accountable. Leaks reveal things that keep the government’s worst impulses in check, which is why it’s a form of whistleblowing.
That said, this seems like yet another reason to be annoyed with the Obama administration’s vast, paranoid crackdown on leakers. It has set the blueprint for a Trump administration if it chooses to go down that same path. It remains to be seen if the Trump administration will pick up where Obama left off and go after leakers quite as aggressively as the last administration. But the quotes above (ironically… leaked from the White House) certainly indicate a plan to crack down on leakers, and to date, Trump has not shown that he’s interested in moderation when it comes to hitting back at those who displease him. One can only hope that he doesn’t decide to take the Obama blueprint and go even further in going after leakers and whistleblowers.
