Christopher Steele’s Victory in a D.C. Court

The author of the explosive dossier outlining the president’s alleged ties to Russia won an important legal victory on Monday, when a judge dismissed a defamation lawsuit brought against his firm by the co-founders of Russia’s largest private bank.

In his decision to toss the case “with prejudice”—that is, permanently—Judge Anthony C. Epstein of the Washington, D.C., Superior Court concluded that the author of the dossier, the former British intelligence officer Christopher Steele, acted “in furtherance of the right of advocacy on issues of public interest” when he decided to brief reporters on the dossier’s findings in the summer of 2016. Steele’s conduct is therefore protected by “anti-SLAPP” statutes, according to the judge, which aim to halt lawsuits brought to chill the exercise of constitutionally protected free speech.  

In a statement, Steele’s lawyer Christy Hull Eikhoff told me that they were “thrilled” with the outcome. "We will continue to defend against baseless attacks on Chris and his company, Orbis, and hope that the result of this case will be a lesson to those who seek to intimidate Chris and his company.” Alan Lewis, a lawyer representing Alfa Bank’s founders—Mikhail Fridman, German Khan, and Petr Aven—said they “strongly” disagreed with the court’s decision and planned to appeal.

Epstein’s decision in the lawsuit did not consider whether the dossier was accurate or inaccurate. But his conclusion offered the first authoritative response to questions that have been raised by President Donald Trump’s Republican allies about the propriety of Steele discussing the dossier with reporters prior to the 2016 election.

Trump’s relentless assault on Special Counsel Robert Mueller’s investigation into possible ties between the Trump campaign and Russia as a “witch hunt” begins with the dossier, which the president and congressional Republicans consider the probe’s proximate cause. They characterize the document as a scurrilously inaccurate attack funded by Hillary Clinton’s campaign.

According to Epstein, the dossier “as a whole plainly concerns an issue of public interest … because it relates to possible Russian interference within the 2016 election.” Steele has made a similar argument with regard to his decision to pause his coordination with the FBI and brief the media directly on his findings in September and October 2016, according to people familiar with his thinking: While he never intended for the dossier itself to be made public—he has said he was “horrified” when BuzzFeed published it in full—he believed the public had a dire need to know the broad outlines of a potential conspiracy between the Trump campaign and Russia, and the FBI had no plans to make such details known. “The Steele dossier generated so much attention and interest in the United States precisely because its content relates to active public debates here,” Epstein wrote.

Alfa and its founders, Fridman, Aven, and Khan, played a fairly limited role in the dossier. Steele devoted a small section to outlining what his source—a “trusted compatriot” of a “top level Russian government official”—had described as Alfa’s “close relationship with” Russian President Vladimir Putin and the “significant favors” exchanged between them, including Alfa’s allegedly “illicit” cash deliveries to Putin throughout the 1990s.

The dossier goes on to say that Fridman and Aven gave “informal advice to Putin on foreign policy, and especially about the U.S.” throughout 2016, but stopped short of linking Alfa to Russia’s election interference. Alfa and its founders have denied engaging in any improper conduct.

In court documents, the Alfa plaintiffs argued two seemingly contradictory points: first, that Steele implied they had been involved in a Trump-Russia conspiracy, and second, that the section of the dossier dealing with the bank was not in the public interest because it did not mention a specific candidate or the 2016 presidential election. Epstein caught this, and wrote that Alfa could not on the one hand contend that Steele accused them of cooperating with Russia’s election interference, while on the other hand saying such an explosive revelation would not be in the public interest.

The judge also called it “ironic” that Alfa’s founders, “who are non-resident aliens with Russian and/or Israeli citizenship,” had argued that nonresident aliens like Steele, who is a British national, don’t have First Amendment rights—even as the founders themselves were “petitioning a U.S. court for a redress of their grievances and invoking a constitutional right to conduct discovery … Plaintiffs do not explain why non-resident aliens have the same right as U.S. citizens to bring defamation actions, but non-resident aliens do not have the same rights as U.S. citizens to defend themselves,” Epstein wrote in a footnote.

Epstein found that Steele was “engaging in speculation” to the extent that the dossier suggests Alfa was involved in Russia’s election interference. Lewis, the plaintiffs’ lawyer, seized on that comment, writing in a statement that they are “pleased that the Court agreed that we have adequately proved Mr. Steele’s negligence in making unsupported accusations that our clients had something to do with alleged efforts to interfere in the 2016 election—which they did not.” Still, even Steele’s “subjective view, interpretation, theory or conjecture” is protected under the First Amendment, according to Epstein.

The fact that Judge Epstein characterized the lawsuit against Steele as a SLAPP action is also significant. Alfa has brought similar defamation suits against Fusion GPS, the opposition-research firm that hired Steele, and BuzzFeed, which published the dossier in full in January 2017. (Alfa also hired American lawyers—one of whom, Brian Benczkowski, was just confirmed as the head of the Justice Department’s national-security division—to help clear its name following reports that its servers communicated with Trump Tower servers during the election.) It is unclear whether those suits will face a similar fate. Ultimately, Epstein said, Alfa failed to provide evidence that Steele acted with “actual malice”—that is, that he “knew the information was false or acted with reckless disregard for its falsity.”

Having successfully argued that his work was in the public interest, Steele was afforded the protection of anti-SLAPP statutes and the burden was shifted to Alfa to prove that Steele knew the information was either fabricated or came from a highly unreliable source. Epstein said that Alfa had failed to do so, and noted that, with regard to Steele’s assertion that Alfa had been “dogged by allegations of corruption and illegal conduct,” Fridman himself had acknowledged in the past that the “rules of business” in Russia “are quite different to western standards” and to “be completely clean and transparent is not realistic.”