Nunes v. McClatchy

Devin Nunes has sued The McClatchy Company and Liz Mair in state court in Virginia, alleging defamation and requesting $150 million in damages. The Complaint, which is embedded below, is fun to read. For example, footnote 1:

McClatchy is well-known for publishing false stories meant to advance the false narrative that associates of Donald J. Trump colluded with Russia to hack the 2016 presidential election.

McClatchy’s outrageous lies about Cleta Mitchell and the NRA get a reference:

Throughout 2018, McClatchy published false stories to stoke the Russian “collusion” narrative. In addition to stories about Cohen and Prague, McClatchy attacked Cleta Mitchell, an attorney who represented the National Rifle Association (“NRA”) for years. McClatchy completely fabricated a story that Ms. Mitchell had “concerns about [the NRA’s] ties to Russia and its possible involvement in channeling Russian funds into the 2016 elections to help Donald Trump.” … McClatchy’s hit pieces on Cohen, Mitchell and Nunes clearly demonstrate that McClatchy was an active participant in a calculated and concerted political operation, using information taken from a for-pay opposition research firm (Fusion GPS), for the sole purpose of furthering the Russian “collusion” narrative.

But those are just collateral observations. The centerpiece of Nunes’s defamation claim is McClatchy’s effort to tie him to a “fundraiser” that featured cocaine and underage girls:

The only purpose of McClatchy’s story was to put Congressman Nunes’s name in a headline along with the words “yacht,” “cocaine,” “prostitutes” and “fundraiser.” In fact, he had nothing to do with the episode. Nunes is a limited partner in a limited partnership that owns a winery. The winery has a yacht, and donated an evening on board the yacht to a charitable auction. (No good deed goes unpunished.) The guy who bought the evening on the yacht at the charity auction apparently threw a party that included cocaine and prostitutes. Devin Nunes had no knowledge of it and nothing to do with it.

The whole story was a politically-inspired fraud. But McClatchy’s fake news spread widely in newspapers (“A new report links California Republican Congressman Devin Nunes to a lawsuit concerning a Napa winery’s San Francisco Bay cruise that allegedly featured prostitutes and cocaine”) and social media (“Devin Nunes just got caught up in a disgusting yacht, cocaine, prostitute scandal”).

The incident happened in 2015 and was reported then, but McClatchy’s Fresno Bee made a major story of it in 2018, apparently in hopes of defeating Nunes in his re-election bid.

There is much more in the Complaint. Among other things, the role of political operative Liz Mair (who says on Linked In: “What do I do for these clients? Anonymously smear their opposition on the internet”).

What are Nunes’s chances of winning? Close to zero, I assume. Under current defamation law, I think it is almost impossible for a public official to win a defamation case no matter how egregious the facts are. My hope is that Nunes’s case survives long enough to enable some discovery. It would be fun to look at the email traffic at McClatchy to see why they chose to resurrect the 2015 “yacht” story just in time for the 2018 election campaign, for example. And whether they acknowledged in writing that they targeted Nunes because his committee was investigating Obama administration misdeeds.

There is one other hope, I suppose: if President Trump gets another Supreme Court nomination, it is possible that the Court might revisit the constitutional straitjacket in which it has placed the common law of defamation. That would be a good thing, from which Devin Nunes might possibly benefit.