On Thursday, federal Judge Leonie Brinkema tossed Svetlana Lokhova’s defamation lawsuit against Stefan Halper and a slew of legacy media outlets. Brinkema’s 41-page opinion detailing why the Russian-born U.K. citizen had no recourse for the damage inflicted on her by the SpyGate plotters and their partners in the press exposed the sad reality of this wide-ranging scandal: many suffered collateral damage in the Deep State’s scheme to take down Trump, but few will find justice.
Lokhova, an historian and former Ph.D. student at Cambridge University, unwillingly served a bit part for the plot. Her Russian ancestry and a chance meeting with Michael Flynn in February 2014—when Flynn served as then-President Barack Obama’s director of the Defense Intelligence Agency—provided an opportunity for the anti-Trump contingency in the government and the media to, years later, present Lokhova as a honeypot and Flynn as a compromised traitor.
But none of it was true. Lokhova was not a Russian spy. There was no intrigue with Flynn. And Flynn had no compromising contacts with Lokhova or other Russians.
Unfortunately for Lokhova, because the press has perfected the art of propaganda, the false portrayal of her as a Russian spy and paramour of Flynn came slowly, with hints and hyperlinks. By the time Lokhova had filed suit, many of the articles that laid the groundwork for the story were more than a year old and thus barred by the one-year statute of limitations governing defamation suits.
Lokhova and her lawyer, Steven Biss, argued that each republication or hyperlink of the original defamatory articles should restart the statute of limitations, but Judge Brinkema rejected the argument in a detailed analysis. That left Lokhova with only a couple of seemingly innocuously falsehoods that Judge Brinkema then dispatched as not defamatory. Never mind that the media thrust Lokhova into the limelight, painted her as a Russian spy and unfaithful woman, and left up the links that laid that tale.
Lokhova and Biss both told The Federalist an appeal is planned.
As a matter of law, it is a challenging question. How should courts handle defamation in the modern media era, where hyperlinked stories provide a backdrop and often the bigger splash when the details are pieced together?
The law Judge Brinkema cited appeared to support her analysis, but the long-time federal judge and Bill Clinton appointee also seemed to side-step the points raised by Lokhova’s attorney, which Biss reiterated in a statement to The Federalist: “Bad actors who intentionally interject defamatory statements into the stream of commerce through social media, such as Twitter, know full well that they are instigating third parties to republish those statements in perpetuity.” Biss added that “media organizations who set in motion endless mass defamation by third parties, and who choose to leave their offending publications on the internet, are legally, morally and ethically responsible for the egregious harm to reputation caused by each republication.”
Whether an appellate court will agree is difficult to predict at this time. Given that defamation law is governed by state law and Lokhova’s lawsuit is in a federal court, the Fourth Circuit Court of Appeals (where the appeal would go), may be hesitant to expand the law. To do so, the federal appellate court would need to conduct a survey of state law and predict whether the state’s highest court would apply this standard for defamation in the age of hyperlinks and social media.
That doesn’t mean that the case is hopeless. It might be that Judge Brinkema ignored controlling precedent or that the appellate court sees the hyperlinks a clear case of republication sufficient to restart the statute of limitations, but unlike the facially ridiculous opinion tossing out Nick Sandmann’s defamation case, at least at this point it appears Judge Brinkema carved together a seemingly solid opinion.
But in doing so, she added some ironic snark that speaks volumes about the elitist view of SpyGate. “Although Flynn is not a party to this action, the complaint frequently mentions him some portions of the complaint do not focus on Lokhova, but instead discuss Flynn, Halper, President Donald J. Trump, and others,” Judge Brinkema wrote. To the federal judge, these “unnecessary and irrelevant statements suggest that political motives, more than legitimate jurisprudential concerns, drive this litigation.”
Yes, Judge Brinkema, there was a political motive, but it was behind the plot that laid waste to Lokohova’s academic career in route to the ultimate destination: destroying Donald Trump. Lokhova became but collateral damage in the plot, and without understanding how the media connected Lokhova to Flynn then to Trump, there would be no understanding of her complaint.
The federal judge also chastised Lokhova’s attorney for his intemperate use of the moniker “ratf@cker” to describe Halper. Judge Brinkema’s right that such language was unnecessary and inappropriate for a federal court filing. But after Halper and his helpers upended Lokhova’s life, her advocate can be forgiven the profanity, which is less offensive than the fact that the term seems apropos to an entire cadre of the U.S. and foreign intelligence community.