When hired by MSNBC as a legal analyst Andrew Weissmann, host Ari Melber explained that Weissmann is a “legend” while others heralded his insider perspective on cases. While many disagreed, Weissmann now has the inside scoop on a major defamation lawsuit in Washington, D.C. He is also the defendant. The controversial former aide to Special Counsel Robert Mueller (and NYU law professor) is being sued after declaring that attorney Stefan Passantino coached former Trump aide Cassidy Hutchinson to lie before Congress.

Weissmann has been long a reliable source for MSNBC in assuring the public that a wide variety of claims against Donald Trump and associates are well-based while panning investigations involving his own investigation, Democrats or the Bidens.

Many of us questioned Mueller hiring Weissmann given his reputation for stretching legal authority and perceived political bias. Weissmann reportedly congratulated acting Attorney General Sally Yates after she ordered the Justice Department not to assist President Donald Trump on his immigration ban. The Supreme Court would ultimately affirm Trump’s underlying authority, but Yates refused to allow the Justice Department to assist a sitting president in defending that authority. Weissmann gushed in an email to her, writing “I am so proud. And in awe. Thank you so much.”

Weissmann seemed to respond to that criticism by aggressively proving them true. Weissmann has only become more controversial as an MSNBC analyst. He called on Justice Department officials to refuse to assist in the investigation of abuses in the Russian collusion investigation. While opposing investigations involving Democrats, he has seemingly supported every possible charge against Trump or his associates.

What Weissmann often lacked in precedent, he made up for in hyperbole. That signature is at the heart of the current lawsuit. On September 13, 2023, Weissmann was referring to Judy Hunt and noted on Twitter (now X) that “Hunt also is Cassidy Hutchinson’s good lawyer. (Not the one who coached her to lie).”

In making this claim against Passantino, Weissmann actually triggered the “per se” defamation standard twice. These are categories that have been treated as defamatory per se. The allegation against Passantino would not only constitute criminal conduct but also unethical professional conduct.

Two things are working in Weissmann’s interest. First, the case is in D.C. with the most favorable jury pool and bench for a Trump critic. Weissmann was viewed by many as hitting the jackpot when the case was assigned to U.S. District Judge Tanya Chutkan. The judge previously caused a controversy by suggesting Trump should be indicted in the case of a rioter from January 6th and now is sitting as his judge in the Special Counsel’s prosecution. Second, he can argue that Passantino is a public figure and this is merely an opinion. It would seem likely that he would be viewed as an “all-purpose public figure.”

Yet, that may not be enough to avoid a trial.

In New York Times v. Sullivan, the Supreme Court crafted the actual malice standard that required public officials to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth.

The standard was later extended to public figures.  The Supreme Court has held that public figure status applies when  someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).

In creating this higher burden, the Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. Public figures are viewed as having an enhanced ability to defend themselves and engaging in “self-help” in the face of criticism. The Court also viewed these figures as thrusting themselves into the public eye, voluntarily assuming the risk of heightened criticism. I have previously written about the continuing questions over the inclusion of the public figures with public officials in tort actions.

This standard is designed to be difficult to satisfy, but Weissmann may have met that standard. Indeed, he would have that in common with his arch nemesis Trump, who has also been sued by public figures.

Weissmann has discussed this standard on the air with regard to the Trump defamation lawsuits and could have well been describing his own defense, including the argument that he did not know that the allegation was false at the time. However, he can also be found to have shown reckless disregard for the available evidence contradicting the claim.

There is no evidence that Passantino encouraged or advised Hutchinson to lie. Indeed, a full year earlier, on September 14, 2022, Hutchinson testified under new counsel but emphasized “I want to make this clear to you: Stefan never told me to lie….I just want to make sure that I make it clear that he didn’t say, ‘I want you to lie and say that you don’t recall on these things when I know you recall… he didn’t tell me to lie. He told me not to lie.”

Moreover, evidence shows that Passantino told her to testify truthfully throughout his representation. Hutchinson reportedly sent texts noting that she did not want to cooperate with the committee, but that Passantino encouraged her to do so.

One friend asked her “Like how on earth are they doing this to you.”

Hutchinson responded “I don’t know. But I don’t want to comply. Stefan wants me to comply.”

In another communication, Hutchinson expressed doubt about Passantino’s media strategy to wait until after her deposition. Hutchinson appeared to want to control the narrative and her image in the media by going public before the deposition: “So I want to. Stefan wants to wait till after my depo. I have to go in person next Tuesday. He doesn’t think the committee will leak it (“they promised they won’t”) but I don’t trust them. And I want it to be my/our narrative that’s out there first.”

In another text to an unknown recipient for information on possible funding for her legal representation, Hutchinson dismissed the committee’s inquiry as nonsense.

In her book, Hutchinson quoted Passantino as saying “The less you remember, the better.” That is not the same as advising a witness to lie. From confirmation to oversight hearings, witnesses are encouraged not to move beyond what they clearly recall. Every lawyer advises witnesses that they cannot be forced to recall facts and to rely on the refrain “not to the best of recollection or memory.”

The main defense of Weissmann is unlikely to be truth in light of such evidence but rather opinion.

Yet, the Supreme Court has shown that there are limits to opinion as a defense as in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). In that case, there was another inflammatory allegation stemming from a public meeting.  An Ohio high school wrestling coach sued over an opinion column alleging that he had lied under oath at a public hearing, saying that it was tantamount to an allegation of perjury.  The trial judge granted summary judgment on the ground that the assertion in the newspaper column was opinion.  The Court however rejected the defense in the case in a 7-2 opinion written by Chief Justice William Rehnquist. The Court noted that “expressions of ‘opinion’ may often imply an assertion of objective fact”  and may inflict “as much damage to reputation” as factual claims. Moreover, some opinions are based on assertions that are “sufficiently factual to be susceptible of being proved true or false.”

On these facts, it is hard to see how Weissmann can avoid a trial. Ironically, Weissmann may hope that the jury in this heavily anti-Trump district will approach his analysis with the same bias as many MSNBC viewers. Weissmann has succeeded in appealing to the echo chamber in the media and at New York University Law School.

Weissmann notably celebrated the victory of E. Jean Carroll against Trump for defamation. He also praised the D.C. Circuit for refusing to dismiss the case on some of the same defenses that he will now raise in his own defamation case.

Unless Weissmann can prove Hutchinson a liar (which is unlikely after lionizing her for her stand against Trump), he would have to show other evidence that Passantino advised false testimony with his client.

He must have some basis for alleging opinion or some other defense. Otherwise, Weissmann would only be saved by jury nullification of an anti-Trump jury pool.

Here is the complaint: passantino-v-weissman-defamation-complaint