Former President Donald Trump, the Republican presidential nominee, talks with former Rep. Devin Nunes, R-Calif., Trump Media CEO, in the Fiserv Forum on the third day of the Republican National Convention in Milwaukee, Wis., on Wednesday, July 17, 2024. (Tom Williams/CQ Roll Call via AP Images).
Former Trump Media & Technology Group CEO Devin Nunes urged a three-judge panel in New York to revive his defamation lawsuit against NBCUniversal on Tuesday, in what the defendants had referred to as a “Hail Mary pass” for the U.S. Supreme Court to eventually catch.
At the start of oral argument at the 2nd U.S. Circuit Court of Appeals, the lone Donald Trump-appointed judge on the panel took the lead in questioning Nunes’ attorney about an apparent strategy to reach the Supreme Court.
U.S. Circuit Judge William J. Nardini pointed to the section of the former California Republican congressman’s brief urging the court to overturn the landmark defamation ruling in the case of New York Times v. Sullivan.
The judge wondered why attorney Jason Greaves, of Binnall Law Group, included it at all, when New York state has codified the “actual malice” standard for public figures.
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“The Supreme Court could completely reinterpret the First Amendment right now, but New York has adopted that test, the actual malice test, by statute, right?” the judge asked, noting Greaves would have to convince the state legislature to amend the statute. “Why are we even talking about this?”
“I don’t intend to belabor that,” Greaves said, stating he brought it up for “purposes of preservation.”
“My point is preserving it for to what end?” Nardini followed up. “It is irrelevant to the decision of the case. You would agree, even if the Supreme Court overturned New York Times vs. Sullivan, it could not have an impact on the outcome of this case, correct? Because of New York statutory law adopting the actual malice standard, correct?”
As Greaves began to answer, 93-year-old Senior U.S. Circuit Judge Guido Calabresi — appointed by Bill Clinton in 1994 — chimed in via Zoom.
“The most you are doing is trying to get us to say that we don’t like Times, and you know I’m not in the business of saying I don’t like what the Supreme Court did, although I often don’t, and even if I don’t in this case, it doesn’t matter,” Calabresi said. “So the answer to that is Times v. Sullivan rules, but even if it didn’t, the New York law would rule, and its notion of malice which is mighty strong, mighty strong.”
Alan Dershowitz failed to persuade the high court to overturn Sullivan in a case against CNN over the summer.
Greaves nonetheless argued that Rachel Maddow and her executive producer Cory Gnazzo “materially altered” details in a Politico article underlying the dispute, transforming alleged passive inaction about the package into an active “refusal.”
During a March 18, 2021 broadcast of “The Rachel Maddow Show” on the cable news network formerly known as MSNBC, the host raised questions about a package Nunes had allegedly received from suspected Russian operative Andriy Derkach, claiming the Trump ally and former House Intelligence Committee chair “refused to show the contents of the package to other members of the intelligence community” and “refused to hand it over to the FBI[.]”
Derkach was described as a suspected “Russian agent” involved an attempt to discredit former special counsel Robert Mueller, and Nunes was still serving as a prominent lawmaker when he sued.
By November 2022 — just over a year after the defamation lawsuit was filed — U.S. District Judge Kevin Castel tossed most of the case, finding that the package “was both addressed to [Nunes] and received by his staff members,” that a “staff member delivered the package to the FBI,” and that Nunes “personally wrote to the Attorney General to advise him of the receipt of the package.”
“The statement that Nunes ‘accepted’ a package from Derkach compared with the actual truth as stated in Nunes’s complaint would not have a different effect on the mind of a viewer,” the judge ruled.
In August 2025, Castel finished off what was left of Nunes’ complaint, finding that he was “unable to show, through clear and convincing evidence, that defendant either had actual knowledge of the falsity of the statement or recklessly disregarded the truth of the statement” that he “refused” to hand over the package to authorities.
“[N]o reasonable fact finder could find by clear and convincing evidence that Maddow and Gnazzo made the statement with a ‘high degree of awareness of … probable falsity,'” the judge added.
When Greaves argued on Tuesday that “cumulatively” there is “evidence here that many of these circumstances that support finding of actual malice exist,” Calabresi interjected, “What is that evidence?”
“I asked you before, and you still haven’t given any,” the judge said.
Elizabeth McNamara, in brief remarks on behalf of NBCUniversal, defended Maddow and Gnazzo’s characterization of a “refusal” on Nunes’ part.
“If it’s standard practice to turn something over and it’s not turned over, I think that’s a refusal to do it, and it’s not, as my colleague suggests, a post hoc rationalization,” the attorney said.
“There didn’t need to be a demand of Mr. Nunes in order for there to be a refusal,” she added.
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