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Nunes SCOVA appeal remains alive ahead of his congressional resignation

Though California Rep. Devin Nunes’ days in congress may be numbered, his Supreme Court of Virginia appeal of a defamation lawsuit recently dismissed from the Albemarle County Circuit Court remains very much alive.

The suit charged that the McClatchy Co. — which owns several newspapers across the country, but none in Virginia — conspired with Virginia-based “center-right” operative Elizabeth Mair to defame the congressman and interfere with his investigations into Hillary Clinton’s 2016 presidential campaign and Russian election interference.

The lawsuit was filed on behalf of Nunes, a Republican, by Charlottesville attorney Steven Biss in Albemarle Circuit Court in April 2019.

McClatchy was later non-suited after the company filed for bankruptcy in July 2020, and the complaint was dismissed against Mair following a hearing in June.

Nunes’ Supreme Court of Virginia petition for appeal, filed Sept. 27, argues that the decision to grant dismissal during the demurrer stage — a stage early in a lawsuit in which a defendant objects to facts alleged — was improper. The petition also argues that the county circuit court erred when it found that the statements published by Mair and her conspirators were not defamatory.

In a surprise announcement earlier this month, the California congressman informed the public that he would be resigning in January to take the helm of Trump Media & Technology Group, giving up his seat in the middle of his 10th term. According to NPR, this decision came amid Congressional redistricting which could have caused new hurdles for Nunes’ 2022 reelection bid.

“The time has come to reopen the Internet and allow for the free flow of ideas and expression without censorship,” Nunes said in a press release. “The United States of America made the dream of the Internet a reality and it will be an American company that restores the dream. I’m humbled and honored President Trump has asked me to lead the mission and the world class team that will deliver on this promise.”

Although Nunes will soon be leaving office, his Virginia defamation lawsuit appeal remains alive, for the time being. According to media law experts, people serving in elected positions of power typically have a higher threshold of proof for defamation. It remains to be seen whether Nunes’ tendency to sue critics will continue as he takes on his new, less public position.

The lawsuit and appeal both cite a May 2018 article from The Fresno Bee — initially titled “A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser event“ — that details a 2016 lawsuit filed against Alpha Omega Winery, a California organization partially owned by Nunes.

In the suit, a former employee alleged she suffered civil rights violations, intentional infliction of emotional distress and sexual harassment while working a charity cruise.

The article did not claim Nunes was on board the cruise and clarifies that it is “unclear” whether he was aware of the 2016 lawsuit or the cruise. Alpha Omega Winery later settled the woman’s suit for an undisclosed sum, according to the article.

Accusations against Mair — who was also named alongside two anonymous Twitter users in a similar defamation lawsuit in Henrico County — were largely based on her reposting the “yacht” story and Nunes’ allegation of a conspiracy between her, McClatchy and Fusion GPS, a commercial research and strategic intelligence firm not named as a defendant. Mair was accused of providing “false narratives” and “egregious soundbites” to the newspaper reporter, who “simply republished [them] without fact-checking them.”

In October, a brief in opposition was filed on behalf of Mair. The political consultant is being represented in part by Roberta Kaplan, one of the chief attorneys for the plaintiffs in the recent landmark Sines v. Kessler lawsuit in Charlottesville’s federal court.

In Mair’s brief in opposition, her counsel argues that nothing in the Nunes’ complaint suggests an illegal conspiracy and that his claims that he was defamed by Mair in a tweet are “deficient,” and “lacking context.”

“To be fair, I think the @fresnobee writing up your investment in a winery that allegedly used underage hookers to solicit investment — an allegation you’ve known about for years, during which you’ve stayed invested in it, I might add — did surprise you,” the tweet in question reads.

Citing the decisions made by the Albemarle County Circuit Court judges, Mair’s counsel qrites that, per a direct application of Virginia law, the tweet is not defamatory.

“For starters, it does not present an actionable statement of fact, but rather a protected expression of opinion or political hyperbole,” the brief reads, before citing a portion of separate defamation lawsuit. “Moreover, Mair was simply ‘repeating or re-stating, . . . through tweets or otherwise, what [the Yacht] newspaper article has written and said.’”

After all claims against McClatchy were dropped, Mair’s counsel argues that Nunes “sought to salvage this claim not by adding new allegations about Mair and McClatchy, but rather by alleging that yet another entity (Fusion) was also somehow part of the conspiracy.”

This, they argue, was based only on a portion of a book titled “Crime in Progress” which only “glancingly” mentions Mair in context to the Henrico Twitter lawsuit and alleges no connection between her and Fusion.

Mair’s counsel also points out that Nunes’ defamation claims against Mair were dismissed by a Henrico County Circuit Court judge earlier this year. Those allegations were also based on Mair tweeting about the same McClatchy publications at issue in this appeal and, her counsel argues, the Henrico judge’s dismissal is a conclusion that Nunes’s defamation allegations were deficient as a matter of law.

Additionally, Mair’s counsel argues that Nunes failed to allege that Mair acted with “actual malice,” which is a legal standard that needs to be met in order for a party to prevail in a defamation lawsuit.

“In fact, Nunes does not include any allegations about Mair’s mental state in making any specific statement,” the brief reads. “Instead, he alleges that she did not like him. But in Virginia, ‘ill will toward a public figure plaintiff” is “insufficient to establish [actual malice].’”

Because the complaint and appeal alleges only a single claim of civil conspiracy — and because it fails adequately to allege either an illegal agreement or an underlying

tort — Mair’s counsel argues the Albemarle judges properly dismissed Mair from the lawsuit.

There are currently no hearings for the case scheduled before the Supreme Court of Virginia. Nunes’ last day in office is expected to be Dec. 31.


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