Nunes Defamation Suit Sheds Redaction Bars, Is Somehow Even Grosser Than Expected

Flaming dumpster of cow shit.

A “no match” letter from the Social Security Administration for an employee’s ID and SSN does not constitute notice that the employee is an undocumented immigrant. But if 34 out of 41 of the workers on your dairy farm between 2018 and 2019 had triggered such letters, you’d probably be wise to refrain from filing a defamation suit against a journalist for implying that you hire undocumented immigrants.

And yet that appears to be exactly what Rep. Devin Nunes’s family did after reporter Ryan Lizza published an Esquire article in 2018 that described being chased around Sibley, Iowa by the congressman’s father Anthony Nunes, Jr., brother Anthony III, and mother Tony Dian. Hi-jinks ensued, as they so often do when the congressman’s slapstick SLAPP lawyer Steven Biss is involved.

Having placed the immigration status of their employees at NuStar Farms dairy at the center of a $75 million defamation claim, the plaintiffs are now being forced to divulge a whole lot of stuff they didn’t want to talk about when Lizza showed up on their doorstep. And thanks to documents recently unredacted after an intervenor action by Prof. Eugene Volokh of UCLA’s First Amendment Clinic, we now have front row seats to this cowshitshow.

Lawyers for Hearst Media, which publishes Esquire, hoped to question six current NuStar employees about their immigration documents. We knew from the subsequent motion to compel that something absolutely batshit went down when the defendants attempted to depose the first of these employees on May 12, 2021. And now that those black redaction bars are off, well … toldja.

The employee appeared without the subpoenaed identification papers, having only learned about the deposition when he showed up for work that morning. Hearst’s lawyers allege that they presented the employee with multiple documents drawing his immigration status into question, including mismatched signatures, papers he purported to have filled out himself although he cannot read or write English, one form which described him as a US citizen, and another which described him as a permanent resident under a program which cuts off eligibility three years before the witness was even born. The lawyer hired by NuStar to represent the workers advised his client to assert his Fifth Amendment right against self-incrimination, at which point Biss lost his shit and demanded to go off the record.

Two hours later, the witness’s attorney had been fired, and Biss, who claims not to represent the NuStar workers, was insisting that none of the six would take the Fifth. Hearst’s lawyers refused to depose an unrepresented witness who might incriminate himself with truthful testimony, and the proceeding was adjourned sine die.

The unredacted transcript of a status conference the next day before US Magistrate Judge Mark A. Roberts, including the full name of the witness, is available on PACER. (Perhaps Mr. Biss has an explanation for this, having already accused the defense of deliberately leaking to CNN by botching the redactions in an earlier filing.)

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Here’s Biss accusing Lizza and Hearst of conniving to get the witnesses to assert their Fifth Amendment rights in an effort to craft a media narrative:

There is no Fifth Amendment that they’re going to assert. This is a way that these defendants are going to use to create a — newspaper articles. So what they’re going to do is they’re going to argue that — they’re going to publicize the fact that the witnesses have taken or have been advised of the Fifth Amendment. Not a single one of them is going to take the Fifth Amendment because they haven’t done anything wrong. We’ve produced all their documentation showing they’re authorized to work.

And although Biss assured the court that NuStar would be hiring a lawyer named “Jennifer” for the employees, the judge eventually appointed private counsel to represent them. It’s not clear whether the workers asserted their right not incriminate themselves when they were finally deposed in August, but it is clear from yet another unredacted transcript that the court is acutely aware of the horrible position NuStar workers are in because of this litigation.

“Here in the Northern District of Iowa, unlike some other places you might practice, we’re not big on twisting people’s arms to settle their cases,” Judge Roberts began, before noting that “the party who we can all agree deserves some sympathy in this matter are these deponents.”

“Now, you can both point your fingers at the other about why now they might be subject to these depositions, whether it was the article or the lawsuit,” he added. “I don’t care to resolve that at this point, but, you know, I guess my observation is that this claim, this lawsuit, is now kind of falling on the backs of some — some people who I think, in ordinary human circumstances, we’d all have a great deal of sympathy for them.”

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Later he continued:

It’s farther above my pay grade to suggest what it might be worth politically or financially or reputationally or anything else. But if I’m the only one in a position who can suggest it to both the parties, I’m willing to do that; and that is, I’m just wondering if there is a way that the parties could find a way to walk away from a claim that’s kind of visiting this sort of mess on people who don’t deserve it and don’t welcome it and just want to work, and then, you know, go to the Eighth Circuit and fight about the rest of the case that Judge Williams dismissed.

Clearly, they could not. Although, to his credit, Lizza did grapple with this issue in the original piece, eventually concluding that the dissonance between Rep. Nunes’s public support for a rabidly anti-immigrant president and his family’s affiliation with an industry which relies on cheap, undocumented labor was newsworthy — irrespective of whether or not the Nunes family itself employs such workers.

And so this clusterfuck continues. Currently the parties are arguing about the discoverability of a 2018 audit of NuStar’s employment records, which might have given them actual notice of undocumented workers, and whether plaintiffs are entitled to see Lizza’s tax returns, which Biss says may prove that the reporter was cahootsing with Fusion GPS and evil Democrats to take out Devin Nunes. [Edit: That last issue appears to have been resolved in Mr. Lizza’s favor.] There’s also the issue of who is paying Biss and the local counsel, since the plaintiffs have testified that it isn’t them.

It’s a hot mess, and for no particular reason, we are thinking this morning about Oscar Wilde, who filed a libel suit against his lover’s father for calling him a “sodomite,” only to find himself arrested for “gross indecency.”

Just sayin’.

Nunes v. Lizza [Docket via Court Listener]


Elizabeth Dye lives in Baltimore where she writes about law and politics.