Below is my column in USA Today on Rep. Devin Nunes, the ranking member of the House Intelligence Committee, threatening lawsuits against the media. It will not come as a surprise of many that I opposed such lawsuits from a free speech perspective, but this effort could also ultimately undermine the position of the White House.
Here is the column:
The pledge of ranking Republican member of the House Intelligence Committee Devin Nunes to sue CNN and the Daily Beast is just the last such threat coming from the White House and its allies. President Donald Trump has publicly called for changing the libel laws, a repeated demand that ignores that the defamation standard rests on constitutional not statutory authority. While such threats may be cathartic and popular, Nunes may be doing greater damage to the White House than the media in declaring his intent to sue.
Nunes is aggrieved by the coverage of a breaking story that he used a congressional trip to meet with Ukrainian officials to dig up dirt against the Bidens in 2018. CNN and the Daily Beast cite Lev Parnas’ lawyer as the source. Parnas, a former Rudy Guliani associate, was indicted in October for conspiring to violate the ban on foreign donations.
Nunes vehemently denied the stories and declared that “we actually caught them” in advancing a false story and a defamation lawsuit will soon follow.
At the outset, it is worth noting that I agree with the White House that there is a great deal of distorted and biased coverage of this president. However, that does not justify the president’s reckless attacks on the media as “the enemy of the people” or his desire to roll back protections for the free press. More importantly, in this matter, Nunes proceeded to make statements that could easily be viewed as attacking the defenses raised not only by the White House but Nunes himself.
“This is criminal in nature,” Nunes stated, “The problem with this week’s fake news story is — we actually caught them. And we caught them badly and it also involves criminal activity…We are going to take both CNN and the Daily Beast likely into federal court, right after Thanksgiving and we hope they cooperate.”
One possible meaning is that Nunes is referencing one of the “per se” categories for defamation in asserting that someone is committing a criminal offense. That would be a reference to a member of Congress using a public funds for political purposes. Yet, that is very similar to what Democrats are accusing President Trump of doing in pushing a quid pro quo by withholding aid or other official acts. One defense (raised by acting Chief of Staff Mick Mulvaney) is that such quid pro quos have always been part of foreign policy so, “I have news for everybody: Get over it.” If the criminal matter is the intermixing of politics with public-funded work, Nunes could find himself in the unenviable position of rivaling Mulvaney as one of the most quoted Republicans in this scandal.
Nunes stated “It is not OK to work with someone who has been indicted on [a] serious federal crime, to build a media narrative and dirty up a member of Congress.”
One can certainly understand the desire to avoid association with Parnas or his equally dubious associate Igor Fruman. Parnas and Fruman bear striking resemblance to Flotsam and Jetsam — the craven and ingratiating henchmen for the sea witch Ursula in The Little Mermaid. Both men were arrested trying to leave the country at the airport shortly after meeting with Giuliani (who makes Ursula look like a public minded citizen).Get the Opinion newsletter in your inbox.
The problem is that these two alleged felons, to use Ursula’s description, were Giuliani’s “poor little poopsies” in Ukraine. They worked with Giuliani who was (according to Giuliani and various witnesses) working for President Trump in pursuing matters in Ukraine. If it was untoward to be working with them, Nunes could have a problem in explaining why Giuliani maintained his own association with them in Ukraine.
Nunes has set an odd standard
Moreover, it is bizarre to suggest that the media should not work with accused felons. Many major stories are based on accounts from not just indicted but convicted felons. That is particularly the case when you are covering possible unethical or criminal acts. The association with such individuals is a problem for people like Giuliani, not the media.
This is why the premise of this defamation lawsuit is so potentially damaging to the narrative supporting the president. You cannot allege that it is per se defamatory to associate you with two individuals who have only two degrees of separation from the president himself. Indeed, the president has associated directly with a number of proven felons including his former personal counsel Michael Cohen and his former campaign chair Paul Manafort. They both displayed the same ravenous corrupt appetites in mixing government and private interests.
Nunes has insisted that he will file the lawsuits against CNN and the Daily Beast after Thanksgiving and added “we hope they cooperate.” They may be more cooperative than he expects. With such a lawsuit will come depositions and discovery into Nunes’ travel, associations and efforts. That could prove a treasure trove for two organizations with diminishing access to Republican sources. Moreover, Nunes will have to satisfy the standard that Trump has repeatedly denounced: the New York Times Company v. Sullivan standard of “actual malice.”
That decision imposed a higher standard of proof for lawsuits by public officials based on the First Amendment’s protection of free speech and the free press. During the civil rights movement, various southern states were using their defamation laws to hit media companies with huge damage awards to coerce them into silence. The court mandated that officials like Nunes must show that the media was acting with either knowledge of the falsity of their reporting or reckless disregard for the truth.
That standard is designed to be difficult to prove and meant to give protection to the media in publishing allegations against high-ranking officials. What may be easier to prove is that these two individuals are not the types with whom any responsible and reputable official would associate. The problem is that a couple of notable figures did precisely that.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley