As Court Finally Dumps One Of Devin Nunes' Ridiculous Lawsuits (With A Warning About Sanctions), Nunes Promises To File Another

from the never-ending dept

Back in September, we wrote about Devin Nunes dropping the only lawsuit he'd filed in California against some of his critics, only to immediately file an absolute laugher of a lawsuit against Fusion GPS and Glenn Simpson, alleging racketeering (RICO) claims. Nunes claimed -- ridiculously -- that he'd obtained the info he needed from the California lawsuit (where he might have faced anti-SLAPP claims) in order to file this new lawsuit. As we noted at the time, Ken "Popehat" White's usual warning of IT'S NOT RICO, DAMMIT totally applied to this new case. And, contrary to one of our more amusing commenters who insisted that this case was solid, Judge Liam O'Grady appears to have made quick work of it, dismissing it as nonsense with an incredibly short and to the point ruling (Politico first broke the news):

As presently pled, the Amended Complaint includes many rote statements of law and conclusory allegations which fall short of satisfying the pleading standard per Bell Atl. Corp. v Twombly... Thus, the instant complaint is insufficient to support a substantive ruling on these issues. Accordingly, Defendants' motion to dismiss... are hereby GRANTED.

The Twombly case is an important one in dismissing cases like this, more or less saying you can't just throw a bunch of speculation at the wall and allege a conspiracy -- you need to allege actual facts. Unsurprisingly, Devin Nunes' busy lawyer, Steven Biss, failed to do so in this lawsuit that always appeared to be about performing for Nunes and Trump supporters, rather than bringing any sort of legitimate legal claim.

The judge did make the dismissal without prejudice, meaning Biss/Nunes can refile, but Judge O'Grady did warn them that doing so without more substance may lead to Biss facing Section 11 sanctions:

Mindful of the latitude provided in Federal Rule of Civil Procedure 15, Plaintiff shall have thirty days from the date of this order to file a second amended complaint if he can do so pursuant to Rule 11.

I'm not sure Biss will take the hint.

In the meantime, this did not slow Nunes down from promising to sue again. The very same evening that he lost this lawsuit, Nunes went on Fox News (of course) with promises to sue the Washington Post for claiming in a story that Nunes shared with President Trump the details of a classified briefing by intelligence official Shelby Pierson to the House Intelligence Committee. As you may have heard elsewhere (if you haven't been living under a rock), Pierson apparently briefed the Committee to say that Russia was once again seeking to interfere in the US Presidential election, and that it hoped to help Trump win a second term. This briefing allegedly resulted in Trump cleaning house with a bunch of intelligence officials, and inserting friends instead.

“I don’t know what planet the Washington Post is on," Nunes said. "But they’ll have an opportunity in federal court in the next couple weeks to explain who their sources are, because I’m going to have to take them to court because I didn't go to the White House. I didn't talk to President Trump, Harris. So, this is the same garbage."

Remember back when Rep. Nunes claimed he was a free speech supporter?

Filed Under: anti-slapp, devin nunes, glenn simpson, liam o'grady, rico, slapp, slapp suits, steven biss
Companies: fusion gps, washington post

Devin Nunes Drops One Ridiculous Lawsuit, Only To File Another One

from the featuring-rico! dept

A month ago we wrote about Devin Nunes' third lawsuit against his critics over their speech, and noted that he was promising in the press that more lawsuits were coming. We noted that the latest lawsuit was slightly odd in that he actually filed it in California, rather than Virginia (as with his first two lawsuits), and in California he could face real anti-SLAPP penalties (i.e., paying the other side's legal fees). Perhaps that's why that lawsuit was not actually filed by Nunes himself, but rather his campaign. If it got tossed out via anti-SLAPP, then suckers who donated to his campaign would foot the bill, rather than Nunes directly himself. Either way, we'll likely never find out because as suddenly as that case was filed, it's now been dismissed by Nunes. Amusingly, Nunes' lawyer is claiming victory:

“We gathered further evidence which supports the plaintiff’s overriding concerns that dark money is being used to influence our elections,” Kapetan said. “Given the new evidence recently discovered, the Nunes campaign committee voluntarily dismissed the lawsuit and the allegations underlining the lawsuit will be incorporated in a (racketeering) lawsuit filed in Virginia today.”

And that brings us to the new lawsuit that Nunes filed on Wednesday. It's a $10 million racketeering (RICO) case against Fusion GPS and Glenn Simpson along with the Campaign for Accountability. You may recall them from such past news as the infamous "Steele Dossier." Nunes has spent months insisting (incorrectly) that the Steele Dossier is some evidence of some massive overreach by US law enforcement or the intelligence community (leaving aside that under the previous administration Nunes was one of the most vocal cheerleaders for increased surveillance powers of the intelligence community) to spy on Americans. Yet when those powers may have been used (well within the law) to do surveillance on his friends, suddenly he's clutching pearls?

Anyway, the new lawsuit is a real piece of work. It's alleging racketeering by GPS Fusion and the Campaign for Accountability. As Ken "Popehat" White famously notes, IT'S NOT RICO, DAMMIT, and this case is no exception.

The Defendants are persons associated in fact (a RICO enterprise) who engage in interstate commerce by the use of one or more instrumentalities, including, but not limited to, the Internet, computers, telephones, mails and facsimile. In 2018, the Defendants received income derived, directly or indirectly, from a pattern of racketeering activity and have used or invested such income, directly or indirectly, in the establishment or operation of an enterprise engaged in, or the activities of which affect, interstate commerce. Through a pattern of racketeering activity, involving acts of wire fraud in violation of Title 18 U.S.C. § 1343 and acts of obstruction of justice in violation of Title 18 U.S.C. §§ 1503(a), 1512(b), 1512(d) and 1513(e), the Defendants have maintained, directly or indirectly, an interest in or control of an enterprise which is engaged in, or the activities of which affect, interstate commerce. While associated with such enterprise, the Defendants conducted or participated, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity. Between 2018 and the present, the Defendants have engaged in activity that is prohibited by Title 18 U.S.C. §§ 1962(a), 1962(b), and 1962(c).

The Defendants’ ongoing and continuous racketeering activities are part of a joint and systematic effort to intimidate, harass, threaten, influence, interfere with, impede, and ultimately to derail Plaintiff’s congressional investigation into Russian intermeddling in the 2016 U.S. Presidential Election. In furtherance of their conspiracy, the Defendants, acting in concert and with others, filed fraudulent and retaliatory “ethics” complaints against Plaintiff that were solely designed to harass and intimidate Plaintiff, to undermine his Russia investigation, and to protect Simpson, Fusion GPS and others from criminal referrals.

Plaintiff was injured in his business, property and reputation by Defendants’ racketeering activity and tortious misconduct. Plaintiff brings this action (a) to recover money damages for injuries caused by the Defendants’ racketeering activity, (b) for disgorgement of the ill-gotten gains and fruits of Defendants’ unlawful enterprise, (c) to impose reasonable restrictions on Defendants’ future activities, including Defendants’ use of fraudulent opposition research and fraudulent “ethics” complaints to intimidate members of Congress and other law enforcement officers in the performance of their official duties, (d) to enjoin the Defendants from committing wire fraud and from obstructing justice, and (e) to order the dissolution or reorganization of Fusion GPS and the CfA so as to prevent or restrain the Defendants from committing fraud, lying to the Federal Bureau of Investigation (“FBI”), Department of Justice (“DOJ”), Congress and Senate, obstructing justice, and violating Title 18 U.S.C. § 1962 in the future.

The details are basically that Nunes thinks that political research against him and corresponding ethics complaints are racketeering. That is not how any of this works. Indeed, if opposition research and filing ethics complaints is racketeering, basically every politician might be guilty of racketeering.

As noted by Nunes' lawyer, it is true that this new lawsuit includes some overlap with the California lawsuit that was just dropped -- mainly about his anger at some of his critics filing perfectly legal FOIA requests for Nunes' wife's emails (Nunes' real complaint here seems to be with how FOIA works for state employees, but to him it's all RICO):

Upon information and belief, Fusion GPS and/or CfA directed Seeley to make a request under the California Public Records Act (“PRA”) for emails received by Plaintiff’s wife, Elizabeth, an elementary school teacher. Seeley’s request targeting Plaintiff’s wife ended up costing the Tulare County Office of Education thousands of dollars in unnecessary cost and expense. Seeley published Elizabeth Nunes’ emails online and included the names and email addresses of numerous school administrators and teachers, resulting in extensive harassment of these innocent, hard-working citizens of Tulare County, including hateful accusations that they teach bigotry and racism. [https://www.scribd.com/user/399236302/Michael-Seeley]. In fact, the school was so concerned about security problems resulting from this situation that it adopted enhanced security measures.

As we stated when the original lawsuit was filed, you can certainly understand why this is annoying and frustrating, but it's a perfectly legal use of FOIA until the laws are changed.

Like the previous lawsuits, this one has little likelihood of going anywhere. Doing opposition research and filing ethics complaints with Congress is not racketeering in any sense of the law. But, of course, once again we have a lawsuit in Virginia over protected speech activity. It's too bad Virginia has a relatively weak anti-SLAPP law.

Filed Under: anti-slapp, devin nunes, glenn simpson, rackeering, rico, slapp, steele dossier, virginia
Companies: campaign for accountability, gps fusion