Last year, I wrote a column expressing concerns over the move to release the Epstein files en masse, including grand jury material. The files include a wide range of tangential figures and unsupported allegations common to criminal investigations. Politicians eager to capitalize on the scandal would likely show little concern for the underlying facts in “outing” names and repeating unproven allegations.

That fear was realized this week with the chest-pounding speech of Rep. Ro Khanna (D., Cal.) on the House floor in which he took credit for outing six “wealthy, powerful men” who he suggested were actively shielded by the DOJ from public exposure. After the DOJ unredacted the names at his request, he read them on the floor. It turns out that four have nothing to do with Epstein.

Had Khanna made these comments outside of the House floor, he would be looking at four defamation lawsuits. However, Khanna knew the men could not sue him because of the immunity afforded to him under the Constitution’s Speech and Debate Clause.

Khanna has been clearly positioning himself for a 2028 presidential run by pandering to the far left of his party. That includes his support for a wealth tax that has already reportedly led to a trillion dollars leaving the state and could harm his own Silicon Valley constituents.

The Epstein files offer an easy platform for another “Spartacus moment” for politicians, who portray themselves as public avengers. That was evident on the House floor as Khanna took credit for exposing these six men. It would turn out to be another Rep. Jasmine Crockett disaster where a gotcha moment became a spectacular face-planting.

Khanna portrayed himself and Rep. Thomas Massie (R., KY) as ferreting out the names of the “wealthy, powerful men” whom the Trump Administration has fought to conceal. The Justice Department had previously agreed to let any members review the unredacted material.

The media, again, eagerly spread the false claim of six men “likely incriminated” in the Epstein scandal.

Khanna congratulated himself and his colleague for discovering the cover-up:

“Why did it take Thomas Massie and me going to the Justice Department to get these six men’s identities to become public? And if we found six men that they were hiding in two hours, imagine how many men they are covering up for in those 3 million files.”

There is another possible explanation. Four of these men have little or nothing to do with Epstein.

One of the names were previously connected to Epstein in public files. That is Les Wexner. Another Sultan Ahmed Bin Sulayem was the head of a Dubai logistics company called DP World.

However, the other four were just photos used in a photo lineup. In other words, they were just random individuals used by the police to fill out a lineup. The Justice Department responded to Khanna’s public demonstration by declaring that

“Rep Ro Khanna and Rep Thomas Massie forced the unmasking of completely random people selected years ago for an FBI lineup – men and women. These individuals have NOTHING to do with Epstein or Maxwell,” the spokesperson told the Guardian…”

What is curious is that Khanna blamed the Justice Department for his going to the floor to out the men as suspected wealthy and powerful predators. However, Massie admitted that he previously raised the possibility that the men were just used randomly in a line up.  Both seemed to put the onus on the Justice Department to protect them from their own folly.

Khanna took no responsibility for his aggrandizing performance on the floor. He blamed the Justice Department in failing “to provide any explanation for their arbitrary redactions in violation of the law and then unredacted them without explaining the context that Massie and I had asked for.”

There is a reason why Khanna did not feel any need to wait to check on these names. It is the same reason why Crockett failed to do so. They are protected under the Speech and Debate Clause, giving them immunity for statements made on the House floor.

The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, they must show actual knowledge or reckless disregard of the alleged falsity.  Obviously, truth remains a defense. Under Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) and its progeny of cases, the Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.”

However, some of these men are not public figures and could sue under the lower standard of reasonableness. Yet, they are still barred from doing so by Khanna’s immunity.

These men could also sue for false light. I have previously discussed such claims in relation to the Epstein files.

Under a false light claim, a person can sue when a publication or image implies something that is both highly offensive and untrue. Where defamation deals with false statements, false light deals with false implications.

California produced an important case that is particularly illustrative in this circumstance. In Gill v. Curtis Publ’g Co., 239 P.2d 630 (Cal. 1952), the court considered a “Ladies Home Journal” article that was highly critical of couples who claimed to be cases of “love at first sight.” The article suggested that such impulses were more sexual than serious. The magazine included a photo of a couple, with the caption, “[p]ublicized as glamorous, desirable, ‘love at first sight’ is a bad risk.” The couple was unaware that the photo was used and never consented to its inclusion in the magazine. They prevailed in an action for false light given the suggestion that they were one of these sexualized, “wrong” attractions.

The standard California jury instruction asks the jury if “the false light created by the disclosure would be highly offensive to a reasonable person in [name of plaintiff]’s position” and whether “there is clear and convincing evidence that [the defendant] knew the disclosure would create a false impression … or acted with reckless disregard for the truth.”

Likewise, in Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002), the court found false light in the use of an actor’s photo on the cover of Playgirl magazine. In combination with the headlines, the plaintiffs argued that the magazine created the false impression that nude photos of the actor were featured inside the magazine.

Once again, Khanna’s self-described courageous moment in disclosing these six names was done carefully to avoid any threat to himself. He was careful to make the comments on the House floor, knowing that he cannot be sued under his constitutional immunity.

These four men are left with little recourse in the face of absolute immunity and the utter lack of decency by a member. Ironically, in denouncing how “wealthy powerful men” are protected in a two-tiered legal system, Khanna pulled the ultimate powerplay — defaming four individuals with little concern of accountability. Ironically, Khanna succeeded in showing the ultimate example of the impunity enjoyed by “wealthy, powerful men.”