Government

Devin Nunes Finds That Filing Garbage SLAPP Suits Is Way Less Fun Than Defending Them

Truth is an absolute defense to defamation, buddy.

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Former U.S. Attorney Andrew McCarthy Testifies To The House Intelligence Committee On The Mueller Report

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In 2018, Hearst Magazines published an article in Esquire by reporter Ryan Lizza entitled Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret. The piece revealed that, contrary to the California Republican congressman’s claim to be continuing his family tradition of farming in Tulare, the Nunes clan had upped sticks in 2006 for Sibley, Iowa to run a dairy farm called NuStar. The piece went on to note that “Midwestern dairies tend to run on undocumented labor” and that “it’s an open secret that the system is built on easily obtained fraudulent documents.”

Lizza, who spent a week being tailed around Sibley by the congressman’s family, was told by multiple sources that NuStar regularly employed undocumented immigrants. If this were true, then the absolute dumbest thing the Nunes family could do would be to sue Lizza and Hearst for defamation. And so, of course, that’s exactly what they did.

First Rep. Nunes filed a defamation suit seeking $77 million, and then his family filed their own suit seeking $25 million. Naturally they hired sparklemagic libelslander lawyer Steven Biss to work his charms on their behalf.

Along the way, the case against the now-former congressman was dismissed, then revived by the Eighth Circuit in an absolutely batshit opinion holding that, while the original publication might have failed to rise to the Sullivan standard for defamation of a public figure, Lizza’s retweet of the story after he’d been sued might constitute actual malice, since the suit itself served to inform Lizza that his reporting was false. On remand, it was consolidated with the festering cowpie of the Nunes family’s pending suit.

To be clear, there were never rails to go off in this case, which originally sought to depose the producer of the infamous Steele Dossier to see if he had put Lizza up to writing the article to discredit Nunes’s efforts to malign the Russia investigation. Nor does it appear to have occurred to the plaintiffs that they’d have to verify the falsity Lizza’s purported claims before collecting damages. And so the family flipped their shit when Hearst demanded the farm’s employment records and sought to depose its employees.

In one particularly insane episode, Hearst’s counsel showed up to depose NuStar employees, who were represented by an attorney hired by the company. When Hearst produced evidence that the employees’ identification documents were clearly false, their lawyer advised them to take the Fifth. After which Biss lost his shit, fired the attorney, and insisted that “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.”  Hearst refused to depose unrepresented parties who were in danger of incriminating themselves, and eventually the court appointed outside counsel for the employees so they could be deposed.

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And while a letter from the Social Security Administration noting that an employee’s ID and SSN are a “no match” does not prove the employee is undocumented, you’d probably refrain from suing someone who implied you hired undocumented laborers if you got one. Or in this case 34 between 2018 and 2019.

In fact, as Hearst and Lizza pointed out in a motion for summary judgment filed yesterday, NuStar received “no match” letters for about 70 percent of its employees every year. Which, as Hearst’s lawyers note, would rather cut against the allegation that Lizza defamed the plaintiffs by falsely implying that they hired undocumented labor.

The contrary undisputed evidence, on the other hand, is so plain it may well establish that they knowingly hired unauthorized workers (“knowing hire” violations) in contravention of the Immigration Reform and Control Act, 8 U.S.C. § 1324a (“IRCA”), even though it is not Defendants’ burden to prove NuStar violated federal immigration laws, but the NuStar Plaintiffs’ burden to prove Defendants’ publication was false.

Meanwhile, Devin Nunes testified that he had firsthand knowledge of his family’s hiring practices:

I mean, I do have obviously firsthand knowledge .. . about when I did it way back in the day, the way that we did it. I was trained by my mother and my grandmother on what to do . … I can’t imagine that they changed when they went there.

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And also that he and his family never used the government’s E-Verify tool to compare an employee’s I-9 to government records:

LAWYER: So, if somebody who is in the country without authorization obtains counterfeit documents, how is one to enforce the immigration laws if they can’t be questioned about it?

NUNES: Well, they can’t be questioned by the employer, that’s for sure.

LAWYER: So, employers are obligated to accept whatever documents are put in front of them?

NUNES: That’s the way that I—that’s the way that I have been—that’s the way that I’ve always operated.

Well, it’s not great, Bob. Particularly since, although he purported under oath not to remember backing any specific legislation relating to immigration, Nunes strenuously advocated for E-Verify in public, belying his claims that it was somehow illegal to examine employee documents.

The Congressman’s legislative record and public statements belie his testimony that verifying work eligibility is “illegal,” and “there is no way . . . to know” authorization status. As a lawmaker, far from treating E-Verify as “illegal,” he tried three times to make an electronic verification “system modeled after . . . E-Verify” mandatory, publicly lauding it. (saying on Fox News, E-Verify has “worked really, really well” and should be mandatory).

“Perhaps, like the Congressman, the NuStar Plaintiffs will persist in claiming ignorance until an employee has said out loud that they are unauthorized,” Hearst’s lawyers note acidly. “But that is not even the standard the government must meet to prosecute knowing hire violations under federal immigration law.”

They also point out that the court has already held that California law will apply to the former congressman’s claim, and so the Eighth Circuit’s holding that a retweet might constitute a new publication is largely irrelevant under California’s Single Publication Act. Also, Nunes failed to comply with California’s retraction statute — although procedural defects are clearly the least of the problems with this garbage fire of a case.

The whole motion is very funny, as in this passage describing how Nunes calculated his demand for $77.5 million in damages based on nothing but vibes:

The Congressman’s $77.5 million demand is not tethered to any methodology or calculation of loss. It is based on “how much information’s out there,” after “look[ing] at all the posts” and “overwhelming number of views,” arriving at a “round number that [he] thought was appropriate.” He cannot remember the number of posts or views (“it was 10 or 15 or 20 million times”) and does not know how they add up to $77.5 million, musing, “well, what’s that [post or view] worth, you know, dollar, two dollars, three dollars? I don’t know.”

It’s also not funny at all. Because, as Hearst points out, “The Congressman is a plaintiff in several other defamation suits, each seeking an eye-popping sum calculated a similar way.” In fact, the current chairman of a social media company which purports to support free speech has waged a campaign to weaponize the judicial system to punish true speech he doesn’t like. Even when, as here, the cost to his family and the community he purports to be protecting, is potentially devastating. Because while he’s succeeded in punishing Hearst by making it fork over millions of dollars to its lawyers, he’s also shined a spotlight on the very employment practices his family and indeed the entire Iowa dairy farming community was trying not to talk about.

Great job, Cowpoke. You showed ’em!

Nunes v. Lizza [Docket via Court Listener]

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

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