Why BuzzFeed’s Court Win Against DOJ Secrecy Isn’t A Win For Public Transparency

Why BuzzFeed’s Court Win Against DOJ Secrecy Isn’t A Win For Public Transparency

On Friday, BuzzFeed scored another victory in its efforts to defend itself against Aleksej Gubarev’s defamation claim pending in a federal court in Florida. Gubarev’s lawsuit seeks damages from BuzzFeed and Editor Ben Smith for the company’s decision to publish on January 10, 2017 the Christopher Steele dossier of opposition research on Donald Trump.

The dossier claimed Gubarev and his companies, XBT Holding S.A. and its Florida-based subsidiary, Webzilla, hacked the Democratic Party computers using “botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct ‘altering operations.” Gubarev denied any involvement in the hack and, in addition to suing BuzzFeed for defamation, filed suit against Steele in England.

In the U.S. case, BuzzFeed attempted to avoid liability, arguing that even if the dossier’s claims about Gubarev were false, the new outlet is protected by the “fair report privilege.” The “fair report privilege” “generally shields persons from liability for publishing fair and accurate reports of official government proceedings.” For the privilege to apply, the “official government proceedings” “must be underway at the time of publication,” but courts interpret “proceedings” broadly, to include “any official investigation even if it is not open to the public.”

Late last month, in Gubarev case against BuzzFeed, the federal court held that “[a] confidential briefing to the President and the President-elect by the four most senior intelligence directors in the country,” and “an FBI investigation into the truth of the Dossier’s allegations,” would both qualify as “official government proceedings,” sufficient to trigger the “fair report privilege.”

The court then held that so long as “an official proceeding concerning the Dossier was underway when BuzzFeed published it,” and “an ordinary reader would have understood that the Dossier was the subject of official action,” BuzzFeed could not be liable for defamation. Conversely, the court explained, if discovery shows that the purported classified briefings and FBI investigation did not actually happen, BuzzFeed could not rely on the fair report privilege.

This holding, however, left BuzzFeed in the unenviable position of proving that the briefing to then-President Barack Obama and then President-elect Donald Trump had occurred as reported, and that the FBI had launched the investigation into the accuracy of the dossier at the time BuzzFeed published it. When BuzzFeed and Smith sought to subpoena documents from the government to prove these facts, the Department of Justice rebuffed their efforts, leading them to file a motion to compel in a federal district court in DC.

On Friday, after reviewing the documents in camera and receiving sealed declarations from the government, federal judge Amit P. Mehta rejected the government’s claim that responding to BuzzFeed’s narrow discovery request “would be burdensome and would compromise sensitive law enforcement interests . . . in a very real way.” Mehta then ruled in BuzzFeed’s favor and directed the government to respond to three questions, within three days of the entry of a protective order in the underlying litigation.

Specifically, the government must state, under oath, in an affidavit, whether, prior to 5:20 p.m. EST on January 10, 2017, the FBI or other governmental agencies possessed the two-page memorandum identified as Report 2016/166. Second, the government must state whether “the FBI received from Senator John McCain a copy of the first 33 pages of the Dossier (i.e., all pages other than Report 2016/166) on or about December 9, 2016.” Finally, the government must reveal whether “Mr. Clapper, Mr. Rogers, Mr. Brennan, and/or Mr. Comey, before January 10, 2017, brief[ed] President Obama about allegations contained in the Dossier?”

The public, however, may never see this affidavit because the district court also directed the parties to file a protective order providing that the affidavit is for “[a]ttorneys’ eyes only,” and can only be used by BuzzFeed to defend itself in this litigation. Thus, while a victory for BuzzFeed, the public will be left guessing whether the FBI fought the subpoena because it reveals information contradicting the timeline or testimony of James Clapper, James Comey, and their gang, or purely wanted to preserve future challenges to document requests.

So much for transparency.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.
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