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Whistleblower Attorney Faces Lawsuit Alleging Defamation And Malicious Prosecution Over Sexual Assault Allegations

Prominent attorney for whistleblowers, Jesselyn Radack, faces a defamation and malicious prosecution lawsuit that alleges she filed and promoted false allegations of rape and sexual assault against Trevor Fitzgibbon.

The lawsuit was filed on April 11 in a federal court in the Eastern District of Virginia. An amended complaint [PDF] was filed on April 29 after Radack allegedly engaged in spoliation of evidence and deleted messages from her Twitter account.

In December 2015, Fitzgibbon’s progressive public relations firm, Fitzgibbon Media, shut down after significant allegations of widespread sexual assault and harassment by Fitzgibbon were published by the Huffington Post.

Three criminal complaints were filed with the U.S. Attorney’s Office in the District of Columbia. One of the complaints came from Radack. However, U.S. Attorney Channing D. Phillips declined to file charges against Fitzgibbon on April 20, 2017.

Radack accused Fitzgibbon of first degree sexual abuse and third degree sexual abuse through the use of force.

According to the police report filed by the Metropolitan Police Department in Washington, D.C., “On Monday, March 7, 2016, [Radack] reported [Fitzgibbon] using force and penetrating her vagina with his penis without her permission and against her will on December 8, 2015. [She] additionally reported [Fitzgibbon] grabbing her by the waist, pulling her onto his lap, and touching her breast without her permission and against her will on December 4, 2015.”

Hotel records from JW Marriott Austin show Fitzgibbon was in Austin, Texas, from December 3 to December 5, and could not have sexually assaulted Radack on December 4. He was in Austin for a Fitzgibbon Media retreat.

Radack told police the alleged rape took place at the Hotel Lombardy in Washington, D.C.

According to the lawsuit, Fitzgibbon claims Radack was having a consensual affair and text messages show she was lying to police when she made criminal allegations against him.

Text messages included in the complaint show she sent photos of her breasts to Fitzgibbon in November 2015, asked Fitzgibbon to describe his “sexual fantasies,” repeatedly urged Fitzgibbon to send a nude photo of himself, and “used her cell phone to draw a nude body, complete with a vagina.”

On November 30, Fitzgibbon and Radack arranged to meet at the Hotel Lombardy. “Want to see you today. What’s your schedule?” Fitzgibbon asked. To which Radack replied, “Shoot, I wanted to see you too, but didn’t see this until now. What time on your schedule tomorrow is open?”

Their schedules did not align. They exchanged further text messages that same date and agreed to meet. “Morning works. 10:00am? What’s your address?” Radack asked. Fitzgibbon directed her to the Hotel Lombardy.

That morning, December 1, they had sex, which Fitzgibbon maintains was consensual. Later in the day, Radack asked for a professional favor. “Can you share my Facebook post & personally vouch for it?” She shared a tweet with him that he could promote because it would “resonate more broadly.”

In the final text messages Fitzgibbon exchanged with Radack, she told him, “I’m REALLY sore. Haven’t been fucked like that ever.” Fitzgibbon replied, “So sorry,” and, “Delete these!” (which Radack agreed to do).

“Radack’s text message communications, her selfies, her demeanor, and her behavior all demonstrate that Radack concocted the criminal charges against Fitzgibbon,” the complaint asserts. “Radack fabricated the criminal charges out of whole cloth, knowing the charges to be false, and with reckless disregard for the truth.”

She told police the alleged rape took place on December 8, but the text messages she exchanged with Fitzgibbon significantly undermine this part of the allegation.

Fitzgibbon alleges under Virginia law that Radack initiated a “malicious prosecution” that was not pursued out of some “good faith desire to further the ends of justice” or ensure someone guilty was punished.

“Rather than admit the simple truth about what happened, Radack manufactured crimes and lied to cover up her adultery and to further her prominent career. Radack’s behavior is an affront to justice, and it does grave injury to real victims of sexual assault.”

As for the defamation allegations, Fitzgibbon argues Radack “leveraged her substantial following on Twitter, which includes her internationally renowned clients, to publish and republish multiple false and defamatory statements.”

The alleged defamation came after a story was published at Shadowproof on May 15, 2017, about the U.S. Attorney declining to pursue charges. She shared tweets from progressive groups, like MoveOn and Ultraviolet, and former employees of Fitzgibbon Media, who were angry about an article that they viewed as an attempt to defend a sexual predator and silence the voices of women.

While the scandal around Harvey Weinstein’s attacks on women escalated and the #MeToo movement ignited, Radack tweeted on October 13, 2017, “8 women & I reported PR big-wig to police for sexual abuse. Bc he didn’t get prosecuted, he declared himself ‘cleared’ & tried to disbar me.”

The lawsuit declares, “Radack reiterated, repeated, and continue[s] to republish false and defamatory statements and enticed others to do out of a desire to hurt Fitzgibbon and to permanently stigmatize him.”

Fitzgibbon further alleges that Radack’s “insulting words” have resulted in “loss of business and income, pain and suffering, emotional distress and trauma, insult, anguish, stress and anxiety, public ridicule, humiliation, embarrassment, indignity,” as well as “damage and injury to reputation.”

He estimates the damage is no less than $10 million.

There is conduct Fitzgibbon engaged in that he recognized made people upset, and he apologized.

“I am sincerely sorry for my behavior and for any women who were harmed,” FitzGibbon said in a statement. “Moving forward, I have a newfound compassion and sensitivity for what women go through on a daily basis and am committed to fighting against unfair power dynamics and fighting for equality for everyone—both in my own actions and whenever I see it.”

“While the criminal allegations against me were false, I understand why women may feel the need to take things to that level considering the harassment and abuse women endure on a daily basis and often go unheard,” Fitzgibbon added.

The apology was accompanied with an announcement that he was returning to public relations work. That fueled a sharp backlash.

Following the filing of the lawsuit on April 11, Radack appeared before the domestic violence unit for the Superior Court for the District of Columbia and sought a civil protection order. She claimed Fitzgibbon was “stalking” her and had sexually assaulted her in 2015.

The “stalking,” according to Fitzgibbon’s amended lawsuit, consisted of a complaint filed with the D.C. Bar Association in August 2017 that was sent to her and three emails from Fitzgibbon’s counsel notifying her of the lawsuit.

Radack asked the court to keep Fitzgibbon away from her and her children and to refrain from communicating with her. She requested the court order counseling for “alcohol abuse,” “drug abuse,” and “domestic violence.” She won a temporary protection order, but on May 2, Fitzgibbon and Radack appeared in court, and the judge found no basis to issue a civil protection order.

Fitzgibbon currently lives in North Carolina. When he was in the courtroom, that was the first time they were in the same room together since 2015.

As for Radack, she is currently the director of the national security and human rights division at Expose Facts. She has represented Edward Snowden, Thomas Drake, and John Kiriakou, and she oversees a whistleblower and source protection program called WHISPeR. She recently spoke at RightsCon in Toronto, and Radack and Expose Facts have engaged in crucial work advocating for the rights of United States government whistleblowers.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."