Vindman v. Trump ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LT. COL. ALEXANDER VINDMAN,
Plaintiff,
v. Civil Action No. 22-257 (JEB)
DONALD TRUMP, JR., RUDOLPH
GIULIANI, JULIA HAHN, and DANIEL
SCAVINO, JR.,
Defendants.
MEMORANDUM OPINION
Lieutenant Colonel Alexander Vindman’s name entered the public lexicon in 2019.
Vindman was serving a detail on the National Security Council on July 25 of that year when he
listened in during the now-infamous phone call between former President Donald Trump and
Ukraine’s President Volodymyr Zelensky, which conversation would lead to Trump’s first
impeachment. Vindman alleges that, after he reported concerns about the call through official
channels and testified before the House Intelligence Committee, a group of conspirators formed
an agreement to intimidate and unlawfully retaliate against him. He brings this action against
some of those alleged conspirators — namely, Donald Trump, Jr., Rudolph Giuliani, Julia Hahn,
and Daniel Scavino, Jr. — alleging that they thereby violated provisions of the Ku Klux Klan
Act of 1871, codified at 42 U.S.C. § 1985(1) and (2). Defendants now move to dismiss the case.
History will be the final judge of Vindman’s actions and the former Administration’s
response. This Court’s task is to adjudicate something far narrower: whether Plaintiff’s
Complaint pleads facts sufficient to state a claim for civil conspiracy under Federal Rule of Civil
Procedure 12(b)(6). As the Court will explain, Vindman must allege facts that plausibly suggest
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two things: first, that each Defendant agreed with others not just to vigorously defend their boss,
but to unlawfully intimidate or injure Vindman; and second, that one of the co-conspirators
committed an unlawful act — e.g., defamation — to further such scheme.
Plaintiff’s pled facts, taken as true, certainly suggest that Defendants leveled harsh,
meanspirited, and at times misleading attacks against him. But political hackery alone does not
violate § 1985. Because Vindman does not sufficiently allege a violation of the 1871 Act, the
Court will grant Defendants’ Motions to Dismiss.
I. Background
A. Factual Background
The Court draws the facts from Plaintiff’s Complaint and for purposes of these Motions
presumes them to be true. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.
2000).
Vindman joined the United States Army more than two decades ago and over the years
rose to the rank of Lieutenant Colonel. See ECF No. 1 (Compl.), ¶ 32. He was detailed to the
National Security Council in 2018, where he served as Director for Eastern European, Caucasus,
and Russian Affairs. Id., ¶ 43. While there, Vindman was one of several participants who
listened in on a phone call that the NSC had arranged to allow Trump to congratulate Ukraine’s
Zelensky on his recent election. Id., ¶¶ 62–63. On that highly controversial call, Trump tried to
coerce Zelensky to announce an investigation of members of the Biden family in return for the
release of American military aid that Congress had appropriated. Id., ¶¶ 60–63. Plaintiff then
reported his concerns about that call through internal NSC channels. Id., ¶ 63.
That phone call soon came to the attention of the House of Representatives through a
complaint from an unidentified whistleblower who was not Vindman. Id., ¶ 65. The House then
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initiated an impeachment inquiry and subpoenaed Plaintiff to testify. Id. Vindman testified
twice, first in a closed-door deposition and then in a publicly televised hearing. Id., ¶¶ 104, 122,
154.
On October 28, 2019, the day prior to Vindman’s closed-door testimony, The New York
Times ran a story identifying him as a witness and previewing his testimony. Id., ¶ 105.
Vindman consequently found himself dragged into a media firestorm, which continued through
his public testimony on November 19, 2019, and beyond. Id., ¶¶ 107–40 (events around closed-
door testimony), ¶¶ 141–204 (around public testimony). The Court discusses below the specific
roles Vindman alleges that each Defendant played in that firestorm.
In addition, Plaintiff contends that Defendants or their co-conspirators leaked classified
information that Republican Counsel Stephen Castor used to question him during his public
testimony. Id., ¶¶ 157–59. Specifically, Castor asked Vindman about an offer he had received
earlier that year to serve as Ukrainian Minister of Defense. Id., ¶ 159. Vindman testified that he
had unequivocally declined the offer and had filed a report documenting the event. Id., ¶ 160.
He alleges that Defendants or their co-conspirators unlawfully leaked that report to House
Republicans to falsely insinuate that he might have had divided loyalties. Id., ¶ 157.
Plaintiff contends that after his testimony he was retaliated against in various ways. He
pleads that, following the former President’s Senate acquittal, he was “abruptly and publicly
escorted out of the White House” and removed from his NSC post. Id., ¶ 194. While Vindman
notes that the President’s National Security Advisor said that removing Vindman was his
decision alone, Plaintiff maintains that this statement was a false attempt to cover up the true
retaliatory nature of his removal by the former President and other co-conspirators, including
Defendants. Id., ¶ 202. Vindman also alleges that Defendants and other co-conspirators engaged
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in an internal, coordinated effort to derail his promotion to Colonel. Id., ¶¶ 209–17. In the face
of concerted attacks by Defendants and others, Vindman states, he finally “made the difficult
decision to retire from the military.” Id., ¶ 222.
These events all caused significant harm to Plaintiff and his family. Id., ¶¶ 224–38.
More than the “hurt feelings” that Defendants blithely identify, see ECF No. 20 (Trump, Jr. and
Scavino MTD) at 1, Vindman describes how Defendants’ onslaught prevented him from
continuing his military career, id., ¶ 227; caused him to fear for the physical safety of his family,
id., ¶ 230; subjected him to personal threats online, id., ¶ 233; and caused his wife and daughter
to alter their behavior to stay safe. Id., ¶ 236. He paid this price because he complied with a
duly issued Congressional subpoena, not because he thrust himself into the fray. Defendants’
actions had consequences, and while the Court is duty bound to apply governing legal standards,
it nonetheless pauses to recognize the real harm that their attacks inflicted on Vindman and his
family.
The crux of his present lawsuit is that each of the four Defendants entered into an
unlawful conspiracy to intimidate and harm him as a result of his role in these events. The
Defendants are, from least to most centrally involved: Julia Hahn, former White House Deputy
Communications Director; Rudy Giuliani, a friend and close advisor of the former President’s;
Daniel Scavino, Jr., the former President’s Director of Social Media and Deputy Chief of Staff
for Communications; and Donald Trump, Jr., the former President’s eldest son. Id., ¶¶ 21–24.
The specific facts pled against each are as follows.
Hahn
Hahn was a White House media liaison and previously worked for Fox News host Laura
Ingraham. Id., ¶¶ 24, 72. She distributed talking points about Vindman to media surrogates at
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the direction of more senior White House communications officers. Id., ¶¶ 146–53. Those
included the header “Vindman Has Major Credibility Issues,” as well as the remark “Vindman
has faced accusations of poor judgment, leaking, and going around normal procedures.” Id.,
¶ 148. Another sentence read, “There was nothing wrong with the call with Zelensky at all,
Vindman was just upset that President Trump was leading foreign policy instead of sticking to
Vindman’s talking points. . . . But it’s not Vindman’s job to set foreign policy, it’s the
President’s.” Id., ¶ 149.
Giuliani
Plaintiff pleads that Giuliani was personally close with Trump and helped spread false
theories regarding the former President’s 2016 and 2020 election rivals. See Compl., ¶¶ 59–61,
76. In particular, Vindman alleges that Giuliani recruited two Ukrainian businessmen to pressure
Ukraine to investigate Hunter Biden. Id., ¶ 77. On the phone call with Zelensky, Trump
suggested that Zelensky coordinate any investigation of the Bidens with Giuliani. Id., ¶ 62. The
Complaint also alleges that Giuliani “engaged in a coordinated attack” against Ambassador
Marie Yovanovitch, then the U.S. Ambassador to Ukraine. Id., ¶ 97.
Giuliani also sent two relevant tweets during the impeachment proceedings. In the first,
on the day of Vindman’s closed-door testimony, he tweeted: “ANOTHER SCHIFFTY
BACKFIRE: A US gov. employee who has reportedly been advising two gov’s? No wonder he
is confused and feels pressure. However the only opinion that legally counts is Pres. Zelensky’s.
Who has clearly said NO pressure. End of impeachment. End of Schiff.” Id., ¶ 124. In the
second, the next day, Giuliani tweeted: “Schiff is thanking him for his secret testimony and for
giving advice to two countries. I thought he worked for US. Schiff is using this to cover-up
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major Pay-for-Play Dem scandal. Ukraine corruption was not only one. Corrupt media is
enabling this phony. The truth will emerge.” Id., ¶ 125.
Scavino
Plaintiff alleges that Scavino served as the former President’s Director of Social Media, a
role in which he managed the White House Twitter account and wrote many of Trump’s tweets.
Id., ¶ 23. Scavino also was a close Trump confidant and one of his chief advisors, as well as one
of Hahn’s supervisors in the White House Communications shop. Id., ¶¶ 70–71, 146. Vindman
alleges that Scavino participated in public campaigns to have former FBI Deputy Director
Andrew McCabe fired and to attack Ambassador Yovanovitch. Id., ¶¶ 96–97. The day that
Vindman testified, Scavino tweeted: “#ICYMI: Lt. Col. Vindman was offered the position of
Defense Minister for the Ukrainian Government THREE times! #ImpeachmentSHAM.” Id.,
¶ 171. President Trump retweeted that tweet. Id., ¶ 172.
Trump, Jr.
Plaintiff pleads that Trump, Jr. serves as a surrogate for his father “for particularly
distasteful attacks on his father’s perceived enemies” and is among his closest confidants. See
Compl., ¶¶ 73–74. Like Giuliani, he allegedly met with two Ukrainian businessmen about
pressuring Ukraine to investigate Hunter Biden. Id., ¶ 77. He was a Fox News regular and also
participated in public campaigns to fire McCabe and to attack Yovanovitch. Id., ¶¶ 89, 96–97.
The morning after Vindman’s testimony, Trump, Jr. went on Fox News and made
negative comments about him, saying, “[I]t turns out he’s, you know, talking to the Ukraine” and
suggesting Vindman was a “leftist.” Id., ¶¶ 127–28. He also retweeted a Gateway Pundit article
that falsely stated that Vindman had been reprimanded for inappropriate and partisan behavior
while in the military, and he retweeted a remark by right-wing commentator Charlie Kirk about
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the same. Id., ¶¶ 133–40. Later, when Vindman was removed from the NSC, Trump, Jr. tweeted
two comments: “On the bright side, he may still be able to take the defense minister position in
the Ukraine that he was offered a few times,” id., ¶ 196, and “Allow me a moment to thank—and
this may be a bit of a surprise—Adam Schiff. Were it not for his crack investigation skills,
@realDonaldTrump might have had a tougher time unearthing who all needed to be fired.
Thanks, Adam!,” which he followed with a crying-laughing emoji and “#FullOfSchiff.” Id.,
¶ 197.
Several months later, after Vindman had been removed from the NSC, Trump, Jr.
tweeted twice more about him: “A name that’s not appearing NEARLY enough in the ‘news’ –
VINDMAN. Media covered his bogus Ukraine transcript constantly. Dems yelled ‘impeach!!’
NOW he admits to actually making up parts of it. Another hoax exposed. And yet again the
media cover the fake scandal but not the TRUTH,” and “You’d think that someone would be
criminally charged for making up things that lead to an impeachment based on false premises.
But I guess that would only happen if they did it to a liberal! Alexander Vindman Admits
making up Parts of Trump Call Summary,” linking to a Breitbart story with that title. Id., ¶ 203.
B. Procedural History
Vindman filed this lawsuit on February 2, 2022. He contends that each Defendant agreed
with others to intimidate and unlawfully retaliate against him in violation of 42 U.S.C. § 1985(1)
and (2). Each of the four Defendants — with Trump, Jr. and Scavino acting together — filed a
Motion to Dismiss, arguing that the facts Plaintiff pleads are insufficient to state a § 1985 civil-
conspiracy claim. See Trump/Scavino MTD; ECF No. 25 (Giuliani MTD); ECF No. 26 (Hahn
MTD). Those Motions are now ripe.
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II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a complaint for failure to
state a claim upon which relief may be granted. In evaluating such a motion to dismiss, courts
must “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of
all inferences that can be derived from the facts alleged.’” Sparrow, 216 F.3d at 1113(quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). Although “detailed
factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570) — that is, the facts alleged in the
complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. Particularly where the defendant’s allegedly unlawful conduct has “an obvious
alternative explanation,” the complaint must allege facts that “plausibly suggest[ ]” — and are
“not merely consistent with” — the defendant’s liability. Twombly, 550 U.S. at 557, 567; accord
Iqbal, 556 U.S. at 682; see also Iqbal, 556 U.S. at 680 (explaining that complaint in Twombly
failed because defendants’ alleged conduct “was not only compatible with, but indeed was more
likely explained by, lawful . . . free-market behavior”).
The court need not accept as true, then, “a legal conclusion couched as a factual
allegation,” Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478
U.S. 265, 286 (1986)), nor “inferences . . . unsupported by the facts set out in the
complaint.” Id. (quoting Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir.
1994)). And it may consider not only “the facts alleged in the complaint,” but also “any
documents either attached to or incorporated in the complaint[,] and matters of which [courts]
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may take judicial notice.” Equal Employment Opportunity Commission v. St. Francis Xavier
Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997).
Rule 12 plays an especially important role in claims involving defamation. “[T]he
Supreme Court has directed courts to expeditiously weed out unmeritorious defamation suits.”
Kahl v. Bureau of Nat’l Affairs, Inc., 856 F.3d 106, 109 (D.C. Cir. 2017) (formatting modified).
“Early resolution of defamation cases under Federal Rule of Civil Procedure 12(b)(6) not only
protects against the costs of meritless litigation, but provides assurance to those exercising their
First Amendment rights that doing so will not needlessly become prohibitively expensive.”
Fairbanks v. Roller, 314 F. Supp. 3d 85, 89 (D.D.C. 2018) (internal quotations omitted) (quoting
Palin v. New York Times Co., 264 F. Supp. 3d 527, 533 (S.D.N.Y. 2017)).
III. Analysis
Vindman’s lawsuit contends that Defendants engaged in an unlawful conspiracy in
violation of 42 U.S.C. § 1985, a civil-rights statute passed in the wake of Reconstruction. See
ECF No. 43 (Brief of Amici Curiae First Amendment Scholars) at 4. As relevant here, § 1985
creates liability where “two or more persons in any State or Territory conspire to” commit
proscribed offenses. See 42 U.S.C. § 1985(1)–(2). Vindman’s two counts each allege two
§ 1985 violations, for a total of four central claims. His first count alleges that Defendants:
 “conspire[d] to prevent, by force, intimidation, or threat, any person from accepting or
holding any office, trust, or place of confidence under the United States, or from
discharging any duties thereof,” § 1985(1); see Compl., ¶¶ 241–42, 249; and
 “conspire[d] . . . to injure him in his person or property on account of his lawful discharge
of the duties of his office.” § 1985(1); see Compl., ¶¶ 243, 249.
His second count alleges that Defendants:
 “conspire[d] to deter, by force, intimidation, or threat, any party or witness in any court
of the United States from attending such court, or from testifying to any matter pending
therein, freely, fully, and truthfully,” § 1985(2); see Compl., ¶¶ 244, 260; and
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 “conspire[d] . . . to injure such party or witness in his person or property on account of
his having so attended or testified.” § 1985(2); see Compl., ¶¶ 245, 260.
Put another way, Vindman’s first and third challenges allege that Defendants conspired to
intimidate him from performing job functions or testifying before Congress, and his second and
fourth allege that Defendants conspired to unlawfully retaliate against him for the same.
Because § 1985 punishes civil conspiracies, Plaintiff agrees that in order to prevail on
any of his claims he must properly plead (for each) all of the general elements of a civil
conspiracy. See ECF No. 30 (Pl. Opp.) at 7. Vindman also agrees that the four elements are
those the D.C. Circuit articulated in its landmark case of Halberstam v. Welch, 705 F.2d 472(D.C. Cir. 1983):
(1) an agreement between two or more persons; (2) to participate in
an unlawful act, or a lawful act in an unlawful manner; (3) an injury
caused by an unlawful overt act performed by one of the parties to
the agreement; (4) which overt act was done pursuant to and in
furtherance of the common scheme.
Id. at 477; see Pl. Opp. at 7 (citing Halberstam and reciting these elements).
“[T]he principal element of [a civil conspiracy],” which is captured by the first two
Halberstam elements, “is an agreement between the parties to inflict a wrong against or injury
upon another.” Brady v. Livingood, 360 F. Supp. 2d 94, 104 (D.D.C. 2004) (formatting
modified). Relevant here, an agreement to do something unsavory but lawful is not enough; the
agreement must be to do something itself unlawful. The recent case of Thompson v. Trump, No.
21-400, 2022 WL 503384 (D.D.C. Feb. 18, 2022), furnishes a helpful example. There, in a
separate § 1985 action, Judge Amit Mehta concluded that the plaintiffs “adequately pleaded that
Giuliani was involved in a conspiracy to engage in a months-long misinformation campaign to
convince Trump’s supporters that the election had been illegally stolen.” Id. at *36 (internal
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quotations omitted). But to state a § 1985 claim, that was not enough: “What Plaintiffs must
plausibly establish is that Giuliani conspired to prevent Congress from discharging its duties on
January 6th by force, intimidation, or threat.” Id. Because “[t]here, they fall short,” Judge
Mehta concluded that the plaintiffs did not state a claim with respect to Giuliani. Id. at *37.
That analytic approach applies here, too. It is not enough for Vindman to allege that Defendants
agreed to do something inappropriate; he must specifically plead that they agreed “to participate
in an unlawful act, or a lawful act in an unlawful manner.” Halberstam, 705 F.2d at 477.
Here, Plaintiff alleges that the unlawful or unlawfully performed act was both: 1) to deter
him “by force, intimidation or threat” from performing his duties or testifying, and 2) to “injure
him in his person or property” on account of having so performed or testified. See 42 U.S.C.
§ 1985(1)–(2). That latter phrase — to injure a plaintiff in his person or property — refers to
compensable injuries under tort law. That follows from the Supreme Court’s holding in Haddle
v. Garrison, 525 U.S. 121 (1998). The Court there held that a plaintiff who had been fired from
his at-will job to discourage his testimony stated a claim under § 1985(2) because the harm he
alleged — a species of third-party interference with at-will employment relations — “has long
been a compensable injury under tort law.” Id. at 126 (citing Cooley, 2 Law of Torts 589–91 (3d
ed. 1906)). This Court follows the Supreme Court’s conclusion that, in the § 1985 context
(subsections 1 and 2 use the same language), the phrase “injured in his person or property” refers
to a tortious injury under principles of tort law. See also id. at 127 (citing 3 W. Blackstone,
Commentaries on the Laws of England 118 (1768), and quoting its language describing universe
of common-law torts as “all private wrongs, or civil injuries, which may be offered to the rights
of either a man’s person or his property”). That also makes sense: a conspiracy must involve an
agreement to do something unlawful, and so an agreement to lawfully injure a person (say, by
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publishing their old embarrassing writings or halting donations to their campaign) cannot form
the basis for one.
Having laid the legal and statutory groundwork, the Court will now assess whether the
Complaint adequately states a claim under § 1985 and Halberstam. Its analysis proceeds in two
parts. First, it considers how Vindman fares on the first and second Halberstam elements — that
is, whether he has pled facts that plausibly suggest that any of the Defendants agreed among
themselves or with others to participate in an unlawful or unlawfully performed act. In doing so,
Court assumes without deciding that Plaintiff has sufficiently alleged that Defendants formed an
agreement to protect the former President by undermining Vindman’s credibility, itself a lawful
act. But it ultimately concludes that Plaintiff has not pled facts that plausibly suggest, in the face
of obvious alternative explanations, the further conclusion that Defendants agreed to do so in an
unlawful manner. While it is a fairly close question, Vindman’s facts do not plausibly suggest
that Defendants agreed to intimidate him so as to prevent him from testifying or doing his job, or
to unlawfully retaliate against him.
Second and independently, assuming Vindman had plausibly alleged an unlawful
agreement, the Court considers whether he has also plausibly alleged the fourth civil-conspiracy
requirement: that a conspirator performed an unlawful overt act pursuant to the common scheme.
It concludes that he clearly has not. Plaintiff principally contends that various statements
Defendants and their alleged co-conspirators made were defamatory. The Court examines each
statement and finds that none was defamatory under the demanding actual-malice standard. It
also determines that Vindman has not pled facts that suggest that any other co-conspirator
committed any other unlawful overt act, such as leaking classified information. For both
reasons, then, his Complaint must be dismissed.
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A. Elements One and Two: Agreement to Participate in Unlawful Acts
Recall that a civil conspiracy requires “(1) an agreement between two or more persons;
(2) to participate in an unlawful act, or a lawful act in an unlawful manner.” Halberstam, 705
F.2d at 477. Defendants initially assert that Vindman fails to plausibly allege the existence of
any agreement. Even if he did plead facts sufficient for the Court to infer some agreement,
Defendants add, he does not plead facts suggesting that such agreement was to participate in an
unlawful or unlawfully performed act. See Trump/Scavino MTD at 13–19; Giuliani MTD at 6–
7; Hahn MTD at 10–17. As the Court agrees on the latter point, it need not decide the former.
Vindman does not contend that Defendants entered into an explicit agreement to
intimidate or unlawfully injure him, nor is he required to. As in “most civil conspiracy cases,”
he asks this Court “to infer an agreement from indirect evidence.” Halberstam, 705 F.2d at 486;
see also id. at 477 (“Proof of a tacit, as opposed to explicit, understanding is sufficient to show
agreement.”).
That said, courts nevertheless hesitate to find that a plaintiff has plausibly suggested
illegal conduct where the pled facts have “an obvious alternative explanation” since a complaint
must allege facts that “plausibly suggest[ ]” — and are “not merely consistent with” — the
defendant’s liability. Twombly, 550 U.S. at 557, 567; accord Iqbal, 556 U.S. at 682; see also id.
at 680 (explaining that complaint in Twombly failed because defendants’ alleged conduct “was
not only compatible with, but indeed was more likely explained by, lawful . . . free-market
behavior”). Iqbal itself is illustrative on this point. There, the Court held that a plaintiff had
failed to state a claim for purposeful discrimination because he had not sufficiently alleged that
the decisionmakers took the challenged course of action “because of” the action’s adverse effects
on an identifiable group. Iqbal, 556 U.S. at 677. The Court considered evidence that the
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challenged policies disproportionately targeted Arab Muslims but noted that Al Qaeda was
headed by and largely consisted of Arab Muslims. “As between that ‘obvious alternative
explanation’ for the arrests,” the Court wrote, “and the purposeful, invidious discrimination
respondent asks us to infer, discrimination is not a plausible conclusion.” Id. at 682 (quoting
Twombly, 550 U.S. at 567). Plaintiffs accordingly must account for any such obvious alternative
explanations, and they must plead facts to suggest that their legal conclusions are not merely
conceivable but are plausible. The D.C. Circuit has reiterated that point as well, holding that
“allegations that a defendant acted in ways consistent with a conspiratorial agreement, but also
equally well explained by legitimate . . . incentives, do not suffice to show illegality.” RSM
Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 682 F.3d 1043, 1051–52 (D.C. Cir.
2012) (internal quotation marks omitted).
A district court here has recently applied that lesson in a similar context. In Black Lives
Matter D.C. v. Trump, 544 F. Supp. 3d 15 (D.D.C. 2021), Judge Dabney Friedrich considered
whether several plaintiffs had stated a claim against former President Trump based on his
clearing of Lafayette Square so that he could be photographed at St. John’s Church. Id. at 38–
39. Judge Friedrich held that those plaintiffs had alleged facts that, if true, showed only that the
defendants were communicating with each other to jointly clear the square — not that they had
formed an unlawful agreement to violate the plaintiffs’ rights based on membership in a
protected class. Id. at 39 (“Merely alleging that the defendant officials communicated, without
alleging any details of those communications that suggest an unlawful agreement, cannot justify
inferring the requisite agreement for a [§ 1985] conspiracy.”). In so holding, Judge Friedrich
noted that “the management of possible violence, enforcement of the impending curfew, and
policing of demonstrators in Lafayette Square in advance of the President’s travel across the
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Square generate ‘obvious alternative explanation[s]’ for the defendants’ communications and
activities other than having formed an agreement to violate the plaintiffs’ civil rights.” Id. at 39–
41 (quoting Iqbal, 556 U.S. at 682). In the face of those obvious alternative explanations, she
concluded that the plaintiffs had not pled facts plausibly suggesting an invidious motive.
The question here is thus whether Plaintiff’s Complaint pleads sufficient non-conclusory
facts, see Iqbal, 556 U.S. at 678, to justify as plausible an inference that any Defendant entered
into an agreement whose aim was to either intimidate Vindman or unlawfully injure him. The
Court considers each in turn.
Agreement to Intimidate Vindman
Taken as true, the facts establish that Defendants worked together and had the common
motive of defending Trump during his impeachment proceedings. They do not, however, show
that any Defendant here joined with any other co-conspirator in the specific goal of intimidating
Vindman from testifying or performing his job. See also Thompson, 2022 WL 503384, at *36
(defendant’s agreement to convince others election had been stolen was alone not enough to
establish further unlawful agreement violating § 1985); Black Lives Matter D.C., 544 F. Supp.
3d at 39; cf. Ziglar v. Abbasi, 137 S. Ct. 1843, 1868 (2017) (suggesting but not deciding that
“officials employed by the same governmental department do not conspire when they speak to
one another and work together in their official capacities”).
Recall the facts pled against each Defendant, which are detailed above: Hahn circulated
talking points that attacked Vindman’s credibility; Giuliani twice tweeted comments critical of
Vindman and enjoyed a close relationship with the former President; Scavino was a senior
official on the White House Communications team and tweeted critically of Vindman on the day
he testified; and Trump, Jr. called Vindman a “leftist” on Fox News and tweeted barbs about
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him. Without more, those facts do not make plausible an inference that any Defendant agreed
with any others on the common goal of intimidating Vindman. That is particularly so given the
“obvious alternative explanation” for these facts, Iqbal, 556 U.S. at 682 — namely, that
Defendants each sought to undermine the credibility of a key impeachment witness to weaken
the case against Trump.
Agreement to Retaliate Against Vindman by Unlawful Means
Plaintiff similarly does not plead facts that suggest a plausible inference that any
Defendant agreed to otherwise unlawfully injure Vindman. Here, the compensable actions that
he alleges that Defendants agreed to take include defamation, leaking classified information,
removing him from his NSC post, delaying his promotion, and causing his constructive
termination. See Pl. Opp. at 21–25.
The pled facts, however, do not plausibly suggest that any Defendant entered into any
agreement with such an unlawful goal. As to removal, non-promotion, and constructive
termination, Plaintiff does not allege any facts that suggest that these Defendants, who had no
power to take any such actions, entered into an agreement to do so, particularly in light of the
National Security Advisor’s statement that Vindman’s NSC removal was his decision alone. As
to defamation, separate from whether any Defendant did in fact defame Plaintiff — a question
the Court takes up below — the issue here is whether any of them agreed with any other person
to do so. As discussed, the facts pled against these Defendants include only allegations that they
had targeted others in the past, that they worked together to defend the former President during
his impeachment proceedings, and that they either circulated talking points or tweeted critically
about Vindman. As before, these facts do not allow for a plausible inference that any Defendant
agreed with any other on the common goal of unlawfully injuring Vindman. Again, that is
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particularly so given obvious alternative explanations for their behavior. See Iqbal, 556 U.S. at682
Counterarguments
Plaintiff offers several responses, none of which alters the Court’s conclusion. First, he
cites a series of antitrust cases for the proposition that conspiratorial agreement may be shown by
“parallel conduct” coupled with “plus factors.” Pl. Opp. at 8 (quoting In re Domestic Airline
Travel Antitrust Litig., 221 F. Supp. 3d 46, 58–60 (D.D.C. 2016)). Vindman then explains how
Defendants’ close relationships, history of coordination, communications relevant to the
impeachment effort, similar statements, and similar motives all plausibly suggest a common
plan. Id. at 9–13. While Plaintiff gives good reasons to think that Defendants formed some sort
of agreement, as this Court’s analysis has assumed, he pleads no facts to suggest that such
agreement was for the unlawful end of intimidating or unlawfully retaliating against him. It is
perfectly natural for a presidential Administration to coordinate internally and with outside allies
to defend its actions, which here offers a lawful obvious alternative explanation to Vindman’s
charge of unlawful conspiracy. See also Pl. Opp. at 12 (recognizing that it “strains credulity that
[Defendants] would not have worked together to defend Trump during a direct threat to his
presidency”); Black Lives Matter D.C., 544 F. Supp. 3d at 39 (allegations of coordination alone
insufficient to show agreement for purposes of § 1985 conspiracy). Parallel conduct among
political allies does not alone plausibly establish unlawful conspiracy.
Second, Plaintiff contends that Defendants take too blinkered a view of what can count as
intimidation. He identifies as examples various Defendants’ tweets suggesting that he was
disloyal because he was offered a job in the Ukrainian government or implying that he
committed perjury. See Pl. Opp. at 21–22. But Defendants’ intimations that Vindman had a
17
sympathetic relationship with Ukraine or that his filed report and testimony contained
discrepancies, true or not, again suggest only that Defendants were looking for ways to
undermine his credibility — not the further conclusion that Defendants had the specific aim to
intimidate him out of testifying or performing functions of his job, or to unlawfully injure him by
defaming him or otherwise. Plaintiff accordingly has still not alleged facts rendering that
conclusion plausible.
Third, Vindman offers more general observations about the troubling character of the
former Administration. He identifies other instances where he concludes that its members acted
unlawfully, including with respect to Ambassador Yvonavitch and Hunter Biden, in order to
suggest generally that the former President’s team may have done so here, too. Regardless of
Plaintiff’s conclusions regarding individuals’ actions in those prior instances, however, he
neglects to plead specific facts in support of his conclusions regarding Defendants’ conduct here.
Bare allegations that the Administration took a political hatchet to other perceived enemies in the
past, without more, cannot sustain a claim that in this matter this set of Defendants conspired to
commit unlawful acts.
The Court is also mindful of the broader implications of Plaintiff’s argument. Were a
close relationship with a President, combined with a smattering of sharp public barbs, enough to
state a claim under § 1985, every political fight would invite endless litigation about potential
conspiracies. Given the natural alternative explanation for such political rough-and-tumble —
i.e., that each side wants to present itself as credible and the other as not — more is needed to
state a § 1985 conspiracy claim. See also Black Lives Matter D.C., 544 F. Supp. 3d at 37–40.
18
B. Element Four: Unlawful Overt Acts
A second and stronger reason also supports dismissal here: Plaintiff has not sufficiently
pled an unlawful overt act in furtherance of the common scheme.
Vindman acknowledges that to prevail on a claim for civil conspiracy, unlike criminal
conspiracy, he “also must prove that an unlawful overt act produced an injury and damages.”
Halberstam, 705 F.2d at 477; see id. (“It is only where means are employed, or purposes are
accomplished, which are themselves tortious, that the conspirators who have not acted but have
promoted the act will be held liable.”) (quoting W. Prosser, Law of Torts § 46, at 293 (4th ed.
1971)); see also Pl. Opp. at 23. Civil conspiracy, in other words, “depends on performance of
some underlying tortious act.” Halberstam, 705 F.2d at 479; see also Second Amend. Found. v.
U.S. Conf. of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001).
Plaintiff identifies two unlawful overt acts. First, he contends that conspirators made
defamatory statements about him; and second, he maintains that they unlawfully leaked
classified information to harm him. See Pl. Opp. at 23–24. Vindman also alleges “numerous
other overt acts in furtherance of the scheme” that are themselves otherwise lawful, such as
holding strategy meetings and issuing talking points. Id. at 24–25. Because civil conspiracy
requires at least one overt act that is itself unlawful, Halberstam, 705 F.2d at 477, these lawful
acts cannot satisfy this element. The Court first considers whether Plaintiff has sufficiently pled
that Defendant or any other co-conspirator made any defamatory statements, and it then
examines the allegations of unlawful leaking.
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Defamation
a. Legal Standard
Vindman identifies “multiple instances of defamatory statements” as his principal
example of the conspiracy’s unlawful overt acts. See Pl. Opp. at 24. He must thus satisfy two
requirements. First, he must plead falsity; this is because truth is a complete defense to
defamation. See, e.g., Moldea v. New York Times Co., 15 F.3d 1137, 1142 (D.C. Cir. 1994).
For a statement to be false, moreover, it must be “sufficiently factual to be susceptible of being
proved true or false.” Milkovich v. Lorain J. Co., 497 U.S. 1, 21 (1990). Expressions of mere
opinion are thus actionable only where they imply defamatory facts. See id. at 20–23. For
example, “the statement ‘In my opinion Jones is a liar because he cheats on his taxes’ could be
libelous if the allegation of cheating were untrue.” Moldea, 15 F.3d at 1144; see also Weyrich v.
New Republic, Inc., 235 F.3d 617, 625 (D.C. Cir. 2001). On the other hand, mere “loose,
figurative, or hyperbolic language” does not imply facts, Milkovich, 497 U.S. at 21; similarly,
where a statement is “obviously unverifiable,” it constitutes non-defamatory opinion. Ollman v.
Evans, 750 F.2d 970, 987 (D.C. Cir. 1984); see also Milkovich, 497 U.S. at 21–22. Our circuit
has held, for instance, that political charges of “fascist” and “political Marxis[t]” constitute mere
“loosely definable, variously interpretable statement[s] of opinion . . . made inextricably in the
contest of political, social or philosophical debate.” Ollman, 750 F.2d at 987 (quoting Buckley
v. Littell, 539 F.2d 882, 895 (2d Cir. 1976)). Such statements are subjective opinion rather than
objectively verifiable fact and so not actionable. On a motion to dismiss, then, the court first
“must determine whether Plaintiff has alleged sufficient facts to plausibly establish that the
allegedly defamatory statement is false.” Libre By Nexus v. Buzzfeed, Inc., 311 F. Supp. 3d
149, 156 (D.D.C. 2018); see also id. at 155 n.2.
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In addition to falsity, public figures, including limited-purpose public figures like
Vindman, see Pl. Opp. at 34 n.5 (conceding such status), must allege that the statement was
published with actual malice. Barr v. Clinton, 370 F.3d 1196, 1202 (D.C. Cir. 2004). This
standard similarly applies in § 1985 cases. Id. The actual-malice standard derives from the
landmark Supreme Court decision in New York Times v. Sullivan, 376 U.S. 254 (1964), and
requires that a statement be made “with knowledge that it was false or with reckless disregard of
whether it was false or not.” Id. at 280. A defendant has acted recklessly if “the defendant in
fact entertained serious doubts as to the truth of his publication” or acted “with a high degree of
awareness of . . . probable falsity.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
A plaintiff can “prove the defendant’s subjective state of mind through the cumulation of
circumstantial evidence, as well as through direct evidence.” Tavoulareas v. Piro, 817 F.2d 762,
789 (D.C. Cir. 1987). “But it is not enough to show that defendant should have known better;
instead, the plaintiff must offer evidence that the defendant in fact harbored subjective doubt.”
Jankovic v. Int’l Crisis Grp., 822 F.3d 576, 589 (D.C. Cir. 2016). Ill will by a defendant is not
sufficient to demonstrate actual malice. See Parsi v. Daioleslam, 890 F. Supp. 2d 77, 90 (D.D.C.
2012); see also Arpaio v. Zucker, 414 F. Supp. 3d 84, 92 (D.D.C. 2019) (“[T]he motivations
behind defendants’ communications — inspired by political differences or otherwise — do not
impact whether defendants acted with actual malice as a matter of law.”). The actual-malice
standard accordingly “is a daunting one.” McFarlane v. Sheridan Square Press, Inc., 91 F.3d
1501, 1515 (D.C. Cir. 1996) (internal citation omitted).
To survive a 12(b)(6) motion, then, a public-figure plaintiff must allege facts that support
a plausible inference that a statement was false and made with actual malice. Byd Co. Ltd. v.
All. for Am. Mfg., No. 21-7099, 2022 WL 1463866, at *1 (D.C. Cir. May 10, 2022) (citing
21
Iqbal, 556 U.S. at 678). That is, such a plaintiff must plead “nonconclusory facts alleging the
[defendant] knew [its statement] was false or questioned its truth.” BYD Co. Ltd. v. All. for Am.
Mfg., 554 F. Supp. 3d 1, 9 (D.D.C. 2021), aff’d, 2022 WL 1463866 (D.C. Cir. May 10, 2022);
see also Hourani v. Psybersolutions LLC, 164 F. Supp. 3d 128, 141 (D.D.C. 2016) (“To allege
actual malice, a plaintiff must assert that the defendant realized that his statement was false or
that he subjectively entertained serious doubt as to the truth of his statement.”) (formatting
modified), aff’d, 690 F. App’x 1 (D.C. Cir. 2017).
b. Allegedly Defamatory Statements
This is a high bar that Vindman cannot clear. Begin with Hahn, who Plaintiff alleges
distributed talking points that said: “Vindman Has Major Credibility Issues,” “Vindman has
faced accusations of poor judgment, leaking, and going around normal procedures,” and “There
was nothing wrong with the call with Zelensky at all, Vindman was just upset that President
Trump was leading foreign policy instead of sticking to Vindman’s talking points. . . . But it’s
not Vindman’s job to set foreign policy, it’s the President’s.” Compl., ¶¶ 148–49. Plaintiff
originally alleged neither that these statements were false nor that Hahn acted recklessly by
circulating them. See Hahn MTD at 18. In his Opposition, he contends that one of these three
statements — “Vindman has faced accusations of poor judgment, leaking, and going around
normal procedures” — so qualifies. See Pl. Opp. at 45–46. Plaintiff’s only basis for that
conclusion is a suggestion that Hahn’s circulated talking points “blatantly misrepresented” the
underlying testimony on which they were based. Id. (citing Compl., ¶¶ 148, 151–52).
Vindman does not plead any facts, however, that indicate that this talking point (or the
others) was false. Indeed, it appears to the Court that it is consistent with the underlying
testimony. See ECF No. 44 (Hahn Reply) at 12 (reprinting public-record testimony, where
22
witness made allegations similar to those the talking point raised). In other words, there were
such accusations; whether they were accurate or not does not matter for assessing the falsity of
the statement. Finally, Vindman does not allege that Hahn made that statement with any
subjective belief that it was false, nor does he plead any facts to suggest that she held such a
belief. At bottom, he does not plead facts that state an unlawful overt act with respect to Hahn.
Giuliani’s alleged defamation came in two tweets, which read: “ANOTHER SCHIFFTY
BACKFIRE: A US gov. employee who has reportedly been advising two gov’s? No wonder he
is confused and feels pressure,” and then, “Schiff is thanking him for his secret testimony and for
giving advice to two countries. I thought he worked for US.” Compl., ¶¶ 124–25. To the extent
that these statements imply a false fact — viz., that Vindman was “advising two gov[ernment]s”
or “giving advice to two countries”— the Complaint pleads no facts that suggest that Giuliani
knew that this was false, and it offers no evidence that it was so inherently improbable that only
a reckless person would have made such statements. Plaintiff’s own Complaint points to a
contemporaneous New York Times article that reported that “Ukrainian officials sought advice
from [Vindman].” Id., ¶¶ 105, 107. Officials seeking advice is of course different from
Vindman giving it, but that Times report does make it difficult for Plaintiff to plead that Giuliani
had subjective knowledge of his statement’s falsity. Because the Court finds that Vindman has
not nudged to plausible the inference that either tweet was made with actual malice, the Court
cannot conclude that either constitutes an unlawful overt act.
Scavino’s allegedly defamatory tweet meets the same fate. His read: “#ICYMI: Lt. Col.
Vindman was offered the position of Defense Minister for the Ukrainian Government THREE
times! #ImpeachmentSHAM.” Id., ¶ 171. The tweet was based on Vindman’s testimony that he
recalled being offered the position of Defense Minister three times, a fact that he himself pleads.
23
Id., ¶¶ 164, 169. As Plaintiff thus cannot show that the facts in that tweet were false, this cannot
be an overt act either.
So, too, with Trump, Jr.’s tweets and comments. As described above, these are a bit
more extensive. Plaintiff alleges that Trump, Jr. made defamatory comments on Fox News,
saying, “[I]t turns out he’s, you know, talking to the Ukraine” and suggesting that Vindman was
a “leftist.” Id., ¶¶ 127–28. Vindman adds that Trump, Jr. also tweeted a variety of allegedly
defamatory remarks, including:
 Retweeting a story that falsely stated that Vindman had been reprimanded for
inappropriate and partisan behavior while in the military, with the comment: “Amazing.
Of course anyone who’s been watching this for the past three years is not at all surprised
that this would be their ‘star witness,’” later adding, “All I’ve heard is that there’s no way
you could possible question him or his motives because he was once in the military,” id.,¶¶ 133–40;
 Commenting when Vindman was removed from the NSC, “On the bright side, he may
still be able to take the defense minister position in the Ukraine that he was offered a few
times,” id., ¶ 196;
 Tweeting, “Allow me a moment to thank—and this may be a bit of a surprise—Adam
Schiff. Were it not for his crack investigation skills, @realDonaldTrump might have had
a tougher time unearthing who all needed to be fired. Thanks, Adam!,” which he
followed with a crying-laughing emoji and the hashtag “#FullOfSchiff,” id., ¶ 197;
 Tweeting several months later, “A name that’s not appearing NEARLY enough in the
‘news’ – VINDMAN. Media covered his bogus Ukraine transcript constantly. Dems
yelled ‘impeach!!’ NOW he admits to actually making up parts of it. Another hoax
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exposed. And yet again the media cover the fake scandal but not the TRUTH”; id., ¶ 203;
and
 Adding shortly thereafter, “You’d think that someone would be criminally charged for
making up things that lead to an impeachment based on false premises. But I guess that
would only happen if they did it to a liberal! Alexander Vindman Admits making up
Parts of Trump Call Summary,” linking to a Breitbart story with that title. Id., ¶ 203.
While the closest call of the four Defendants, Vindman pleads no facts that create a
plausible inference that Trump, Jr. made false statements while subjectively entertaining serious
doubts about them. Begin with the Fox appearance where he called Vindman a “leftist,”
whatever that is supposed to mean. Under binding Circuit precedent, that remark does not
constitute or imply a statement of fact. Rather, it is like the political charges of “fascist” and
“political Marxis[t]” that our Circuit has held are “obviously unverifiable” as mere “loosely
definable, variously interpretable statement[s] of opinion . . . made inextricably in the contest of
political, social or philosophical debate.” Ollman, 750 F.2d at 987 (quoting Buckley, 539 F.2d at
895); see also Milkovich, 497 U.S. at 21 (“loose, figurative, or hyperbolic language” does not
imply facts).
Moving next to the tweets, the Court starts with Trump, Jr.’s retweet of an article
accusing Vindman of “Inappropriate and Partisan Behavior in Military.” Compl., ¶ 137. The
Complaint alleges that the article source’s reliability was “self-evidently questionable” because
the source at one point had the hashtag #Q in his profile (the Complaint does not specify for how
long or whether it was there during the time Trump, Jr. retweeted the article) and because the
source was “a motivated partisan” who “reportedly wrote more than a hundred tweets
recirculating QAnon-related theories.” Id., ¶ 134. These facts, taken as true, suggest that the
25
article Trump, Jr. retweeted stated or implied false conclusions. But Plaintiff does not plead
facts sufficient to suggest actual malice. Trump, Jr. did not retweet the article source’s tweets,
which is what Plaintiff contends he had reason to know were false; rather, he retweeted only an
article from Gateway Pundit based on those tweets, which he is not alleged to have known was
false and which did in fact make such accusations of inappropriate and partisan behavior.
Speakers are not presumed to have scrolled through the Twitter history of the source for every
article that they re-tweet, and nothing in the pleadings suggests that Trump, Jr. saw (or should
have seen) anything suggesting that the source was a QAnon supporter or otherwise a conspiracy
theorist.
Plaintiff similarly falls short with respect to Trump, Jr.’s other tweets. The sarcastic
tweet that, “[o]n the bright side, [Vindman] may still be able to take the defense minister position
in the Ukraine that he was offered a few times,” Compl., ¶ 196, does not contain a verifiably
false statement of fact, as explained above in connection with Scavino. The tongue-in-cheek
tweet thanking Adam Schiff, accompanied by a crying-laughing emoji and the hashtag
“#FullOfSchiff,” similarly does not make a verifiably false statement of fact; it sarcastically
thanks a political antagonist. Perhaps recognizing as much, the Complaint does not specifically
allege that either of these tweets was defamatory and instead principally uses them to suggest
that Vindman’s firing was retaliatory. Id., ¶¶ 195–201.
Trump, Jr.’s two final tweets suggest that Vindman admitted “making up” parts of his
testimony. Id., ¶¶ 203–04. The Breitbart article that Trump, Jr. linked to in support was titled
“Alexander Vindman Admits Making Up Parts of Trump Call Summary.” Id., ¶ 203. Vindman
alleges only that the article “does not establish that Lt. Col. Vindman made up things leading to
26
an impeachment.” Id., ¶ 204. Yet he needs to allege far more to establish actual malice —
namely, that Trump, Jr. knew or should have known that the article was not true.
Faced with the lack of an unlawful defamatory statement by any Defendant, Plaintiff
suggests that others, including Laura Ingraham, John Yoo, and former President Trump, are
themselves co-conspirators who said defamatory things and so committed unlawful overt acts on
behalf of the conspiracy. But just as Vindman does not plead facts sufficient to plausibly suggest
that any Defendant entered into a conspiratorial agreement, he similarly does not sufficiently
allege that any such agreement included these other characters. The Court, consequently, need
not consider their statements.
That said, because former President Trump worked closely with each Defendant — he
was the boss of some (Hahn, Scavino), close confidant of others (Giuliani), and father of one
(Trump, Jr.) — the Court will nonetheless examine his statements to see whether any could
constitute an unlawful overt act on behalf of the conspiracy.
Unfortunately for Plaintiff, several of the former President’s tweets do not contain
information specifically about Vindman and are pled only to show the purportedly unlawful
nature of the conspiracy (those at Compl., ¶ 100); did not allege statements of fact (that at
Compl., ¶ 129); or concerned material the Court has already held non-defamatory (that at
Compl., ¶ 172, retweeting Scavino). The only remaining tweets that Plaintiff specifically alleges
were false and made with actual malice are those at paragraphs 199–201 of the Complaint, in
which the former President tweeted:
Fake News @CNN & MSDNC keep talking about “Lt. Col.”
Vindman as though I should think only how wonderful he was.
Actually, I don’t know him, never spoke to him, or met him (I don’t
believe!) but, he was very insubordinate, reported contents of my
“perfect” calls incorrectly, &...was given a horrendous report by his
superior, the man he reported to, who publicly stated that Vindman
27
had problems with judgement, adhering to the chain of command
and leaking information. In other words, “OUT.”
To the extent that this tweet contains or implies false statements, however, Vindman does
not plead facts suggesting that Trump made these statements with actual malice. The Complaint
repeatedly alleges that it was “not true” that Vindman had received a horrendous report by his
superior, had problems adhering to chain of command, or leaked anything. See Compl., ¶ 200.
But it pleads no facts to further suggest that Trump subjectively knew these statements to be
untrue or that he had a high degree of awareness of their probable falsity.
The Court of course passes no judgment on the fairness or propriety of such attacks. As a
limited-purpose public figure, however, Vindman was a man in the arena. Defendants may have
played ugly, but Vindman does not plead facts suggesting that they acted with actual malice.
Leaking
Vindman also alleges a second overt unlawful act: that “conspirators at the White House”
leaked classified information to House Republicans — namely, Vindman’s report documenting
that he received and declined an offer to serve as Ukrainian Minister of Defense — who then
questioned him about it during his committee appearance. See Pl. Opp. at 24 (citing Compl.,
¶¶ 157–67). While leaking classified information could indeed be an unlawful overt act, Plaintiff
offers no basis for concluding that any Defendant leaked this information or formed an
agreement with anyone who did so. Vindman contends only that “some Defendants” were
involved in the leak but offers no non-conclusory facts to support that inference. See id. at 12.
Indeed, none of the four Defendants held White House positions in the national-security space,
and Plaintiff does not even plead that any of the four held security clearances. It is unclear, then,
how Vindman theorizes that they could have obtained this information so as to help leak it.
These conclusions are thus entirely speculative.
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* * *
The Court will end where it began: by emphasizing the narrowness of the task before it.
Plaintiff certainly pleads that Defendants each helped propagate harmful and unfair attacks
against him. The Court does not decide the validity of those attacks, regardless of whether some
were outside the bounds of appropriate political discourse. It instead looks only to whether
Vindman’s pleadings satisfy the civil-conspiracy elements that the D.C. Circuit articulated in
Halberstam and the 12(b)(6) standard that the Supreme Court established in Iqbal. Such inquiry
yields the inescapable conclusion that they do not.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendants’ Motions to Dismiss. A
separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: November 8, 2022
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