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 The venerable “Fourth Estate” has been replaced by partisan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