Attorneys for Sen. Elizabeth Warren (D-Mass.) filed a notice of removal on Thursday in the defamation case filed against her and others by 10 Covington Catholic teens. The filing represents an attempt to remove the pending case from the Kenton County Circuit Court in Kentucky to the U.S. District Court for the Eastern District of Kentucky, Covington Division.
“This court has jurisdiction because Plaintiffs have asserted claims against Senator Warren, an officer of the United States, for acts performed under color of such office,” Warren’s attorneys wrote, before saying that the U.S. senator intended to raise “federal immunity and jurisdictional defenses in this action.” Although the federal immunity defense could also apply in state court, it appears Warren’s attorneys are citing possible federal immunity as a reason to move the case to the U.S. District Court.
“Senator Warren’s alleged conduct was taken under ‘color of [her] office [citations removed],” Warren’s attorneys continued. “The tweet that forms the basis of Plaintiffs’ claims against Senator Warren was not only issued from her official Senate account, it communicated (to her constituents, among others) an opinion regarding a noteworthy and highly-publicized event, and such communication falls within the scope of her duties as a Member of Congress.”
As Law&Crime exclusively reported at the beginning of August, Covington Catholic teens represented by attorneys Robert Barnes (disclosure: Barnes has written columns for Law&Crime in the past) and Kevin Murphy filed suit against multiple known defendants, including social media personalities, journalists and lawmakers.
At the time, there were eight John Does among the plaintiffs. That number has since risen to 10. The complaint named the following individuals as defendants: Sen. Warren, Rep. Deb Haaland (D-New Mexico), CNN’s Ana Navarro, Maggie Haberman of the New York Times, comedian Kathy Griffin, ABC News political analyst Matthew Dowd, Reza Aslan (formerly of CNN), Kentucky entrepreneur Adam Edelen, Princeton University History Professor Kevin M. Kruse, activist and journalist Shaun King, Mother Jones editor-in-chief Clara Jeffery and Rewire.News editor-in-chief Jodi Jacobson.
The defamation case stemmed from the reaction to the now-infamous encounter between Nick Sandmann, other Covington Catholic students and a 65-year-old Native American man identified as Nathan Phillips. The lawsuit alleged that the defendants jumped to conclusions, painting the plaintiffs as racists, lying about an event they didn’t witness firsthand, and libeling the minors.
This was the Warren tweet cited in the complaint:
Sen. Warren, through her lawyers, now seeks to assert immunity from such claims. Attorney Robert Barnes told Law&Crime that Warren could have apologized for the role she played in the social media frenzy, but instead chose to send the message that “she has a license to lie.”
“Instead of an apology, Senator Warren’s message to the Covington Kids is she has a license to lie; she’s a United States Senator,” Barnes said. “All you have to do is put ‘Senator’ before your name on social media, and you can lie about anyone you want, anytime you want, and call it a ‘public service.'”
“This case poses an unprecedented legal question: Is election to Congress a license to libel?” Barnes added.
Plaintiffs have demanded a jury trial and judgment no less than $15,000 but no more than $50,000 against each of the named defendants ($50,000 x 12/8 = $75,000). They seek compensation for costs, expenses, attorneys fees, as well as declaratory and equitable relief from the court.
The notice of removal hasn’t be fully briefed, nor has there been a ruling. When might that ruling come? Keep your sights set, at the earliest, on late October.
Law&Crime has reached out to Sen. Warren’s office for comment and will update this story if we receive one. Warren is being represented by Daniel J. Canon; Marc E. Elias, Uzoma N. Nkwonta and John M. Geise have pro hac vice applications forthcoming in this case.
[Image via JOSEPH PREZIOSO/AFP/Getty Images]
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