Why @RealSLokhova's defamation/conspiracy/ lawsuit against Stefan Halper & the media was dismissed
THREAD
THREAD
As announced by @RealSLokhova, yesterday Judge Brinkeman in the Eastern District of Virginia dismissed her lawsuit against against defendants Stefan Halper (FBI source in Crossfire Hurricane), media orgs (WSJ, NYT, WaPo, MSNBC), and Malcolm Nance of MSNBC
SUMMARY
Here's a basic summary of the case. I'll walk you through it in the thread. Blue is Lokhova's arguments, red is the Judge's decisions.
Here's a basic summary of the case. I'll walk you through it in the thread. Blue is Lokhova's arguments, red is the Judge's decisions.
BACKGROUND (1/2)
Lokhova sued the defendants on three counts:
1: Defamation (basically claiming she was a Russian agent/honeypot entrapping @GenFlynn, which she isn't)
2: Conspiracy (to defame)
3: Tortious interference (e.g. loss of a book deal as a result of the defamation)
Lokhova sued the defendants on three counts:
1: Defamation (basically claiming she was a Russian agent/honeypot entrapping @GenFlynn, which she isn't)
2: Conspiracy (to defame)
3: Tortious interference (e.g. loss of a book deal as a result of the defamation)
BACKGROUND (2/2)
Lokhova filed her lawsuit on May 23 2019*, alleging the following defamation examples:
—WSJ article (Mar 2017)
—Tweets by Nance (Apr 2017 & Jul 2018)
—MSNBC shows (May 6 & 18 2018)
—NYT article & tweets (May 18/19 2019)
—WaPo article (June 5 2018)
*Important!
Lokhova filed her lawsuit on May 23 2019*, alleging the following defamation examples:
—WSJ article (Mar 2017)
—Tweets by Nance (Apr 2017 & Jul 2018)
—MSNBC shows (May 6 & 18 2018)
—NYT article & tweets (May 18/19 2019)
—WaPo article (June 5 2018)
*Important!
A plain reading of those articles, shows & tweets results in an impression on the reader/viewer that Lokhova was a scary/nefarious Russian, connected to Russian intel, trying to entrap or directly working with Gen. Flynn-i.e "Collusion"
(This was obviously the intention & false)
(This was obviously the intention & false)
BUT: the Judge DID NOT rule whether *almost* all these articles/tweets or shows were *actually* defamatory, or part of conspiracy, *because the statute of limitations in Virginia for defamation is 1 yr*
Lokhova filed May 23 2019 so only publications on May 23 2018 or later count
Lokhova filed May 23 2019 so only publications on May 23 2018 or later count
That means the Judge made no ruling on the content of the vast majority of the articles & allegations, as they were published before May 23 2018 (including the original WSJ article). They're just not legally defamatory as they were published more than a year before the lawsuit
Lokhova tried to argue around this:
—If an article is published after May 23 2018, but links back to the older articles, that's "re-publishing"
—If a 3rd party comments/tweets the older articles that's also "re-publishing"
...and the 1 yr clock would re-start (judge disagreed)
—If an article is published after May 23 2018, but links back to the older articles, that's "re-publishing"
—If a 3rd party comments/tweets the older articles that's also "re-publishing"
...and the 1 yr clock would re-start (judge disagreed)
Read the full ruling for a detailed explanation (linked at the end), but the Judge disagreed on case law precedent that a basic URL link back to an article is "re-publishing" the entire article, and that publishers couldn't be held liable for 3rd parties on 1st amendment grounds
Accordingly, *everything except a June 2018 WaPo article, and some July 2018 tweets by Nance* are time-barred by the statute of limitations
However, no claims can apply to Malcolm Nance of MSNBC, because he wasn't named in the original complaint. While he was added in the Amended Complaint, the Judge ruled he was *not properly served with the lawsuit* (despite this being made clear at an Oct 19 oral argument hearing)
That leaves just the allegedly defamatory claims in the Jun 2018 WaPo article. The Complaint cites two claims and the judge found neither of them to be defamatory:
"nothing in this article...defames [Lokhova]"
"nothing in this article...defames [Lokhova]"
The complaint also made some unclear/imprecise references to potentially other defamatory statements that might not be time-barred, which the Judge dismisses (she also takes a swipe at the extended references to Flynn and President Trump as being unnecessary)
Having dealt with all of the defamation claims and dismissed them, the Judge then points out that the Conspiracy and Tortious Interference claims can't survive on their own, as they entirely rely on the underlying defamation claim. So they get dismissed too.
Judge Brinkeman then heavily criticizes Lokhova's attorney:
—"excessively long" complaint
—"Unprofessional", ad hominem attacks
—"Unnecessary" "over-heated" rhetoric
—"Exaggerat[ed]" claims
— "Extremely offensive and inappropriate"
—"Had to have known" most claims time-barred*
—"excessively long" complaint
—"Unprofessional", ad hominem attacks
—"Unnecessary" "over-heated" rhetoric
—"Exaggerat[ed]" claims
— "Extremely offensive and inappropriate"
—"Had to have known" most claims time-barred*
*This strikes me as unfair from Brinkeman, as just because Lokhova had a similar case ruled time-barred in England (bailii.org/ew/cases/EWHC/…) doesn't automatically decide the merits of a case in *Virginia, USA*. She also *won* the pre-cursor cases to that case as well (for big $)
Judge Brinkeman then suggests that the "over-heated" rhetoric (as she puts it) and "unnecessary" and "irrelevant" references to Flynn/Trump etc may be as a result of "political motives", not legitimate legal concerns. Ouch.
Having decided to dismiss the complaint in its entirety, the Judge then turns to the defendants other motion for Sanctions to be enforced against Lokhova's attorney (for the over heated rhetoric mentioned above)
Brinkeman decides to rule AGAINST sanctions, however warns that if "further inappropriate pleadings" or "frivolous post-judgement litigation" is pursued against the same defendants, "sanctions might well be justified"
Given this, any appeal should be very carefully considered
Given this, any appeal should be very carefully considered
Brinkeman also does *not* rule on an anti-SLAPP motion filed by Halper/Defendants at same time as the dismiss motion (Anti Strategic Lawsuit Against Public Participation, designed to protect 1A expression from lawsuits; this could have automatically awarded their attorney fees)
That's it, here is the conclusion, and the Order as entered by the Court
Possible next steps:
—Lokhova can appeal to 4th Circuit (which is currently a 6-9 Dem majority, even putting aside the merits of an appeal)
—Halper & co. can also appeal the sanctions ruling, and may try to obtain attorney fees (which the judge side-stepped for now)
/ENDS
—Lokhova can appeal to 4th Circuit (which is currently a 6-9 Dem majority, even putting aside the merits of an appeal)
—Halper & co. can also appeal the sanctions ruling, and may try to obtain attorney fees (which the judge side-stepped for now)
/ENDS
N.B. I haven't mentioned the fact that Brinkeman was appointed by President Clinton (well, except right now), because it's not especially relevant to the underlying legal arguments
Brinkeman's political biases could be a factor, but that's speculative. I do think the ruling is overly harsh in tone and of course ignores common sense, that Halper ran an info op to accuse a new mother of being a Russian spy, to dirty up Flynn, & the media eagerly ran with it
Just because you likely can't sue these guys for that in federal court (largely because of missing a legal deadline by a few days) doesn't make it right they did that info op, or make it okay to take a victory lap after wallowing around in the mud dirtying up innocent people.
