Former Rep Devin Nunes will be allowed to continue with his lawsuit against NBC-Universal for defamation of character. The lawsuit stems from a news story from Rachel Maddow in which she accused Nunes of keeping a package from a Russia-connected Ukrainian under sanctions from the United States, a man named Andriy Derkach. When such a package is received, that person is obligated by law to turn it over to the FBI. That is exactly what Nunes did.
As Breitbart News reported last year:
[Maddow claimed] Nunes received a package from a Russia-connected Ukrainian under sanctions from the United States, a man named Andriy Derkach, and inaccurately [claimed] Nunes hid this from the FBI. Specifically, Maddow plainly stated on her program: ‘He [Nunes] has refused to show the contents of the package to other members of the intelligence community. He has refused to hand it over to the FBI which is what you should do if you get something from somebody who is sanctioned by the U.S. as a Russian agent.’
These statements from Maddow are false, as previous reporting from Breitbart News, Politico, the Federalist, and other outlets makes clear. Not only did Nunes proactively provide all of this to federal law enforcement, his new lawsuit against Maddow reveals he disclosed it all in a letter to then-Attorney General Bill Barr at the time. Maddow, however, refuses to withdraw her false and inaccurate claims against Nunes. So, Nunes is suing NBC Universal, the parent company of MSNBC, for damages and a demand for a retraction and apology. The lawsuit, the latest in a long line of them Nunes has filed against establishment media corporations for fake news they have printed against him, was filed in federal court in Texas last week. Nunes discussed this case and his broader legal strategy on Breitbart News Saturday this weekend.
Nunes is accusing NBC of actual malice, stating that Maddow knew that Nunes relinquished the package to the FBI before she made her proclamation on her television program. He claims she did so in order to impugn his character and harm him and bring questions to his honesty. The judge agreed with him and the lawsuit remains in force.
U.S. District Judge Kevin Castel argued that Maddow failed to cite any source for her claim against Nunes. The judge acknowledged that Maddow may have gotten her information from an article in Politico but that would not excuse Maddow or NBC from blame for defamation.
Per the ruling:
The speaker did not attribute the statement to any source, including the Politico article submitted by NBCU on this motion. The CNN article shown and cited onscreen did not speak to the issue of whether Nunes refused to give the Derkach package to the FBI.
At the Rule 12(b)(6) stage, the Court cannot draw the factual inference that the speaker or others responsible for the segment had knowledge of the Politico article and based the statement on its contents. While it is plausible that the statement was made with knowledge of that article, the Complaint also describes why the statement plausibly could have been made with knowledge of falsity or reckless disregard as to the same. A court does not weigh competing, plausible theories of actual malice on a motion to dismiss.
Nunes pointed out that the lawsuit could have been averted had NBC issued an apology admitting that Nunes had indeed turned over the package as required by law, but that they had refused to do so.
“All they had to do was publicly tweet out, at the time, tweet out ‘Hey, we apologize, we got this story wrong,’ and then she should have went on the air and said ‘hey I ran a story last week or whatever and we apologize to Devin Nunes.’ Right? That’s all they had to do. But now they let it stay out there, let it stay out there and look this is the problem with this—there are people out there, millions of Americans, who believe this crap.”