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Court Puts Devin Nunes's Cowpie Defamation Suit Over Esquire Article Out To Pasture

And that's no bull.

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Yesterday, former congressman Devin Nunes’s defamation clownsuit against Hearst Magazines and Ryan Lizza came to an ignominious end.

“The assertion that NuStar knowingly used undocumented labor is substantially, objectively true,” wrote US District Judge C. J. Williams in an order granting the defendants motion for summary judgment. Thus ends this cursed exercise, in which the then-congressman enlisted his family in a mission to seek revenge on a journalist who reported accurately that Nunes’s family, like much of the dairy industry, relies on undocumented labor.

In September of 2018, Hearst ran Lizza’s account of being chased around Sibley, Iowa, by then Rep. Nunes’s family in an Esquire story called Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret. The literal “secret” was that his family had upped sticks from California in 2007 and moved their operation 1,800 miles east. And although Nunes’s uncle continues to farm in California, it somewhat undercut Nunes’s claims that his family had “operated a dairy farm in Tulare County, California for three generations.” On a metaphorical level, the “secret” was the tension between Nunes and his party’s strident opposition to “illegal immigrants,” and his family’s place in an industry that relies on the labor of those same immigrants to make a profit.

Nunes filed a $75 million defamation suit against Lizza and Hearst in 2019, and his family followed suit in 2020, docketing their own claim to have been damaged to the tune of $25 million. Both cases were filed in the Northern District of Iowa, and the plaintiffs shared the same sparklemagic libelslander lawyer Steven Biss, a one-man casebook on slapstick SLAPP suits.

In August of 2020, Judge Williams dismissed the complaint against Nunes, finding that it failed to allege statements which were defamatory, and furthermore, even if those statements were defamatory, Nunes failed to prove actual malice consistent with the New York Times v. Sullivan standard. But the Eighth Circuit reinstated the complaint only insofar as it referred to a retweet by Lizza in 2019 when the case was filed, bizarrely holding that retweets might qualify as republication for the purpose of defamation.

Meanwhile, Nunes’s family was finding out the hard way that suing someone is slightly more complicated than backing your truck up to the courthouse and telling the defendant to fill the bed with cash. Naturally, Hearst subpoenaed the dairy’s employees, and in one completely bonkers deposition, Biss insisted that none of the employees would take the Fifth. When counsel for the employees objected, Biss fired the lawyer on the spot. Eventually the court appointed new counsel for the laborers, after which they all took the Fifth as to every question about their immigration and employment status and as to their documents.

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And furthermore, the court wrote, the documents produced by the NuStar for those employees were very clearly fake:

Also, all six subpoenaed employees had incomplete Form I-9s, as each Section 2 was incomplete, and the documents supplied to establish their identity and authorization to work were not listed on the Forms. The SSA confirmed none of the six subpoenaed employees’ names, SSNs, and dates of birth in combination matched their records. Arnold testified, and Samson agreed—in defendants’ telling— that to the extent there were paperwork and font issues and certain indicia of fraudulent documents, all six employees presented NuStar plaintiffs counterfeit documents containing the wrong fonts and various irregularities. According to defendants but contested by plaintiffs, there is no record of L.P.P. ever presenting NuStar plaintiffs with identification documents.

The family also ignored letters from the Social Security Administration telling them that their employees’ documents did not match government records:

In October 2019, NuStar Farms received a letter from the SSA (“2018 No-Match Letter”) stating that 20 of 27 W-2s submitted to the Internal Revenue Service (“IRS”) for 2018 reported SSNs that did not match the SSA’s records. Lori [Nunes] thought the 2018 No-Match Letter was a joke but still informed Anthony [Nunes] III and Anthony [Nunes] Jr., who said to do nothing but file it. In December 2020, NuStar Farms received another letter from the SSA (“2019 No-Match Letter”) stating that 14 of 19 W-2s for tax year 2019 provided SSNs that did not match SSA records, which Lori believed was “bogus.” 

Well, obviously. The SSA is such a prankster!

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Truth being an absolute defense to defamation, the fact that the dairy very clearly did rely on undocumented workers was fatal to the family’s case. And while the Eighth Circuit held that “the complaint sufficiently alleges that Lizza republished the article” with his tweet, applying California law, Judge Williams held that “no reasonable jury could find for Nunes on republication.” The only issue remaining is whether the court will unseal documents in support of Hearst’s motion for summary judgment, an issue reserved by the court.

Why would a family which was hellbent on hiding its labor practices file a lawsuit which made those practices the subject of discovery? We may never know. But thanks to this doomed litigation, a whole lot more people read Lizza’s article and coverage of this doomed litigation.

Well played, Devin!

Nunes v. Lizza [Docket via Court Listener]

Elizabeth Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

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