Controversial Trump-Russia 'dossier' sparks legal battle over press freedom

In the run-up to the 2016 presidential election, some of the most aggressive investigative reporters in the US were hard at work trying to verify an array of explosive allegations made in what would come to be known as the “Trump dossier.”

The series of confidential memos were compiled by Christopher Steele, a former British intelligence officer. He was hired by a Washington-based consulting firm that was being paid by the Democratic Party and Hillary Clinton’s presidential campaign to unearth damaging information about her Republican opponent, Donald Trump.

Although a few news reports about the former spy’s work appeared prior to the November 2016 election, no news organization was able to verify the most alarming allegations – including that Mr. Trump and his associates were colluding with the Russians to undermine the Clinton campaign.

Despite this lack of confirmation, in early January 2017, the web-based media organization BuzzFeed decided to publish the entire dossier.

Now, more than 17 months later, BuzzFeed is a defendant in a Miami federal court case that is testing the scope of press freedoms at a time of acute public distrust of the media, and amid repeated presidential accusations about “fake news.” The fact that it centers around a controversial document at the heart of the Trump-Russia investigation makes it all the more significant.

In the months following its publication, the dossier has become a lightning rod for countless conspiracy theories and allegations on both the right and the left involving Trump, the Russians, Clinton, the Democrats, the Republicans, and the so-called Deep State.

The clash is playing out via a defamation lawsuit filed by a Russian businessman, who says his personal and business reputations were savaged when BuzzFeed published a portion of the dossier accusing him and his companies of being involved in the hacking of Democratic Party officials in 2016. The businessman, Aleksej Gubarev, owns an array of internet services and hosting companies under the umbrella firm XBT Holding, including Webzilla, a Florida corporation. Mr. Gubarev is based in Cyprus.

At issue is whether BuzzFeed acted negligently or in reckless disregard for the truth by publishing the entire Trump dossier without first verifying its contents.

The theft and subsequent leaking of private emails of various Democratic National Committee officials was one of the most dramatic developments of the 2016 campaign, and Clinton supporters say it undermined her presidential bid. The operation is alleged to have been carried out by hackers working on behalf of Russia.

Special counsel Robert Mueller has indicted Russians for engaging in deceptive social media tactics in the US during the election, but no one – American or Russian – has yet been identified or charged in connection with the hacking of the DNC.

Gubarev says the allegations in the dossier of his involvement in the hacking are false. He says no one from BuzzFeed contacted him or his companies to seek to verify or disprove the allegations. His lawsuit accuses BuzzFeed of fomenting “one of the most reckless and irresponsible moments in modern ‘journalism.’ ”

Sixty-eight words

The Gubarev case is focused on allegations made in the last of 17 memos produced by Steele. The entire dossier is 35 pages. The portion that allegedly defames Gubarev is 68 words.

“[REDACTED SOURCE NAME] reported that over the period March-September 2016 a company called XBT/Webzilla and its affiliates had been using botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct ‘altering operations’ against the Democratic Party leadership.”

The memo continues: “Entities linked to one Alexei GUBAROV [sic] were involved and he and another hacking expert, both recruited under duress by the FSB [Russian intelligence]…, were significant players in this operation.”

Steele has said he was horrified when he learned that the dossier had been published. He says his memos contain unverified, raw intelligence, and that his sources could be compromised.

In addition to the Miami case, Gubarev has also filed a defamation suit against Mr. Steele in London. The Miami case is set for trial in November.

BuzzFeed has assembled a formidable legal team to respond to the suit, including Roy Black, a highly-regarded defense lawyer in Miami perhaps best known for successfully defending William Kennedy Smith in a 1991 rape trial.

In court filings, lawyers for BuzzFeed argue that the media organization performed an important public service by allowing citizens to see for themselves what triggered an FBI investigation and high-level government briefings by intelligence officials. Publication of the Trump dossier was essential to public understanding of the unfolding Trump-Russia controversy, they say.

As BuzzFeed wrote in an accompanying article at the time: “BuzzFeed News is publishing the full document so that Americans can make up their own minds about allegations about the president-elect that have circulated at the highest levels of the US government.”

Significantly, the news organization also openly acknowledged that it knew that at least some parts were false: “The dossier… includes specific, unverified and potentially unverifiable allegations,” the article advised readers. It added: “[The dossier] is not just unconfirmed: It includes some clear errors.”

Nonetheless, the news organization went ahead and published the dossier anyway.

Fair report privilege

According to many legal experts, that action places BuzzFeed in a precarious position.

The well-established standard for a public official to prevail in a libel case against a news organization is “actual malice” – that the journalist acted “in reckless disregard for the truth.” That is a high bar that provides substantial protection for reporters who seek to be fair and accurate.

But what about journalists who know their report contains false information?

“To say we are knowingly publishing falsehoods, that’s kind of the textbook definition of what actual malice is,” says Jane Kirtley, a media law expert and professor at the University of Minnesota Law School.

In this case, however, BuzzFeed’s lawyers are arguing that the media organization and its staff are protected under a legal doctrine called the “fair report privilege.”

The fair report privilege shields reporters from liability in a defamation lawsuit even if their news report contains false information that harms someone’s reputation. It is designed to foster robust press coverage of government affairs by carving out an area where reporters are protected from defamation lawsuits if they fairly and accurately portray the information obtained from a privileged source, even when some of the privileged information is false and/or defamatory.

If it weren’t for that protection, news reporters might avoid reporting certain kinds of stories. For example, someone named in a criminal complaint who is later acquitted at trial might come back and sue a reporter for writing about the case and harming that person’s reputation.

Moreover, the protection doesn’t just apply to reporters.

“Witnesses wouldn’t dare testify or people wouldn’t appear before legislative committees in controversial matters if they had to worry that they might be sued later for remarks they made,” says Robert Drechsel, a media law expert and emeritus professor at the University of Wisconsin School of Journalism and Mass Communications.

“Judges, attorneys, legislators – everybody would be vulnerable to an enormous range of libel suits,” he adds. “The [freedom to engage] in public discussion of important issues could be badly damaged.”

Professor Kirtley says the principle behind this approach was articulated by Supreme Court Justice William Brennan in the 1964 landmark high court decision New York Times v. Sullivan.

“He talked about the notion that sometimes falsehoods are inevitable when the press is covering matters of legitimate public concern,” she says. “If we are left with a situation where the press has to be the guarantor of the accuracy of everything they publish, that will act as a deterrent and cause them to self-censor.”

She adds: “What I think Justice Brennan would have been saying in a situation like this is, are you giving the public enough information that they can independently decide for themselves whether they want to believe this or not. Or will they come away saying, I still don’t know?”

A victory this week

Traditionally, the fair report privilege has applied to statements made in public proceedings, like an open court hearing, a city council meeting, or a public hearing in Congress. It also covers government documents generated as part of such public proceedings. But this determination is not an exact science.

In the Miami case, Gubarev’s lawyers argue that the fair report privilege should only apply to public proceedings and documents related to those public proceedings. They argue that the Trump dossier was written by Steele as part of a paid, private, political opposition research assignment. The fact that he provided information from the dossier to the FBI does not make Steele a government official and it does not make his information a privileged government report, they say.

BuzzFeed’s lawyers say the fair report privilege applies to a broader array of documents that should include the Trump dossier, as it is related to government action.

In a ruling this week, US District Judge Ursula Ungaro gave a green light for BuzzFeed to argue its broader reading of the fair report privilege in the Gubarev case.

The order, announced on Monday, is a victory for BuzzFeed because it potentially allows lawyers to side-step the thorny issue of BuzzFeed’s apparent decision to publish unverified and false information.

The ultimate outcome will depend on evidence uncovered during pre-trial discovery.

In her ruling, Judge Ungaro identified two key areas of dispute about whether the government had taken “official action” concerning the dossier: Did intelligence officials conduct classified briefings for President Obama and President-elect Trump about the dossier? And did the FBI investigate aspects of the dossier?

“If discovery reveals that they did not, then there was, in fact, no official action,” the judge said in her ruling.

A spokesman for BuzzFeed praised the judge’s ruling. 

“A confidential briefing to the President/President-elect by the four most senior intelligence directors in the country is official action,” Matt Mittenthal said in Tweet. “So too is an FBI investigation into the truth of the Dossier’s allegations.”

A gray area of the law

It is clear from various statements and documents released over the past year and a half that the dossier was a subject covered in presidential briefings and was at least partly investigated by the FBI.

But Gubarev’s lawyers say the relevant inquiry must focus on the portion of the dossier that involves their client. In other words, was the FBI investigating the allegations against Gubarev and his companies? And were Obama and Trump briefed about the allegations against Gubarev and his companies?

“We are confident that, when discovery is complete, there isn’t going to be any evidence that the December Memo – which is the only memo that mentioned Gubarev, Webzilla, or XBT – was the subject of any ‘investigation’ or government action at the time BuzzFeed published the dossier,” Gubarev’s lawyer, Evan Fray-Witzer of Boston, wrote in an email to the Monitor.

Steele is known to have met with the FBI and provided information from the dossier to the FBI. But that cooperation ended in October 2016, well before the December memo was written.

After obtaining the full dossier in late December 2016, BuzzFeed reporters attempted to verify parts of it. On Jan. 10, CNN produced a story summarizing key portions of the dossier and reporting that President Obama and President-elect Trump had both been briefed on it, and that the FBI was investigating allegations in the dossier.

According to court filings, BuzzFeed’s editor “concluded that since official action with the Dossier had reached the highest levels of government, it should be published.”

BuzzFeed published an article that same day and included a link to the full 35-page dossier. Within a month, the dossier had been viewed nearly 6 million times.

Professor Kirtley says the BuzzFeed case exists in a gray area of the law. “If this were an FBI report there would be no question in my mind that it would fall under the fair report privilege,” she says. “But what we have here is something which was generated by some outside entities and is now subject to a governmental review.”

She adds: “If it were introduced as evidence in a court case, for example, then it would be covered by the fair report privilege. What makes it more complicated is whether, to the extent it is being scrutinized by the government, is that tantamount to saying it is now part of a formal government investigation?”

Reporter’s note: An example of how the fair report privilege is routinely used by reporters is on display in this report. The article reproduces all 68 words from the dossier that Gubarev alleges are defamatory. Repeating those words is potentially a form of libel, causing yet another alleged injury to Gubarev’s reputation. But because the passage is at the center of a lawsuit and is repeated in the context of reporting about a court case, the Monitor’s decision to publish those words is fully covered by the fair report privilege. It should also be clear from the article that the purpose of repeating the 68 words is not to harm Gubarev’s reputation (although it might do so), but to help readers understand Gubarev’s case and the underlying issue. That is one example of how the privilege works and why it is so important to journalists.