Rep. Lieu Tells Rep. Nunes He Looks Forward To Discovery, As More Evidence Of Nunes Connections With Parnas Emerge

from the don't-have-a-cow,-man dept

Last week we noted that the latest person that Rep. Devin Nunes was threatening to sue (a constantly growing list) was a fellow Congressional Representative, Ted Lieu. Nunes was particularly mad that Lieu had said Nunes "conspired" with Lev Parnas, the now indicted Rudy Giuliani aide who has been dribbling out a bunch of fascinating info lately. We, and many others, had asked Lieu to release the letter from Nunes' lawyer, and he finally released the first page as well as his own response letter. And the timing is interesting, because it comes just as the House released new evidence of a connection between Parnas and Nunes.

First, though, let's look at the letter Nunes' regular SLAPP-happy lawyer, Steven Biss, sent to Lieu:

Attached is the first page of a five page letter in which the lawyer for @DevinNunes threatens that Rep Nunes will sue me. Attached is my response. pic.twitter.com/bWAqdRhq97 — Ted Lieu (@tedlieu) January 17, 2020

We've seen plenty of ridiculous and empty defamation threat letters, but this one surprised me in how absolutely stupid it is. Rather than your typical defamation letter, Biss is claiming that the Constitution protects a person's "right to an unimpaired reputation." This is not something that exists. But here's what the part of the letter that Lieu revealed says:

Dear Mr. Lieu: I represent Devin G. Nunes. As I am sure you are aware, the United States Constitution and the common law faithfully protect a person's "absolute" right to an unimpaired reputation. In Rosenblatt v. Baer, the United States Supreme Court expressly affirmed that: "'Society has a pervasive and strong interest in preventing and redressing attacks upon reputation.' The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of essential dignity and worth of every human being--a concept at the root of any decent system of ordered liberty ... The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored".

First of all, what an odd citation to use. Rosenblatt v. Baer does not say that you have an absolute right to an unimpaired reputation. Second, the court in Rosenblatt rejected an attempt by a public figure to sue for defamation. It came out soon after the much more well known and important New York Times v. Sullivan case that said for there to be defamation of a public figure, the statements had to be made by someone knowing they were false, or demonstrating reckless disregard for the truth. And, in Rosenblatt v. Baer, the court determined that you couldn't sue someone just for being critical of your actions as a government employee.

Here's part of the ruling not cited by Nunes' lawyer, who quotes only the first bit of this, but leaves out what comes right afterward and which I've highlighted:

Society has a pervasive and strong interest in preventing and redressing attacks upon reputation. But in cases like the present, there is tension between this interest and the values nurtured by the First and Fourteenth Amendments. The thrust of New York Times is that when interests in public discussion are particularly strong, as they were in that case, the Constitution limits the protections afforded by the law of defamation. Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present and the New York Times malice standards apply.

In other words, going by the standard in Rosenblatt v. Baer, Nunes has no leg to stand on. Oh, and also, the actual section that Biss is quoting from is not the majority opinion, but rather a concurrence by Justice Stewart that (even while concurring) complains about the quoted section the majority put forth above. In other words, this is not the official position of the Supreme Court.

This is bad lawyering upon bad lawyering.

Anyway, that takes us to Lieu's response which is... just wonderful:

Dear Mr. Biss, I received your letter dated December 31, 2019 in which you state your client Congressman Devin Nunes will sue me if I don't, among other actions, issue a public apology to Devin Nunes. It is true that I stated Congressman Nunes worked with Lev Parnas and conspired to undermine our own government. As you know, truth is a defense. So go read the documents and text messages provided by Lev Parnas to the House of Representatives, and watch his interview on the Rachel Maddow Show, which aired on January 15, 2020, that directly implicates Rep Nunes. I welcome any lawsuit from your client and look forward to taking discovery of Congressman Nunes. Or, you can take your letter and shove it.

Daaaaaaaaaaamn, Congressman. Bringing fire.

Anyway, about the time that Lieu released that letter, the House released a bunch of Whatsapp messages, provided by Parnas, between Parnas and top Devin Nunes aide Dereck Harvey. It shows Harvey and Parnas discussing US foreign aid to Ukraine and setting up some sort of interviews, including with the former Ukraine Prosecutor General, Viktor Shokin. They also set up a few meetings between themselves at the Trump Hotel in DC including one conversation the very day before previously released records showed Nunes and Parnas playing phone tag, before apparently connecting for over eight minutes.

And, in case you forgot, here are the phone records between Parnas and Nunes.

As the Politico article linked above notes:

The newly released text messages show Harvey asking Parnas to pursue several lines of inquiry with his Ukrainian contacts, including one regarding what Harvey calls “rumors” about coordination between the 2016 campaign of Hillary Clinton and the Ukrainian government to dig up dirt on Trump’s campaign manager Paul Manafort. Harvey asked a few days later whether Parnas was preparing to send documents or if he would “keep working through [John] Solomon,” a reference to a former columnist at The Hill who was working closely with Parnas and Giuliani on the effort. Over the next few weeks, the pair attempted to arrange Skype interviews between Republican staff of the Intelligence Committee and senior officials in Ukraine, including former prosecutors Viktor Shokin and Yuri Lutsenko, who had been working to oust Yovanovitch and had offered up allegations of dirt on Biden.

So, uh, yeah. I'm guessing for all the bluster and questionable legal arguments from Biss, Devin Nunes probably does not want to sue Lieu and find himself in discovery. The question is whether or not Nunes is actually smart enough to know when he should take one of his silly legal threats and "shove it," or if he's going to continue down his destructive path of suing anyway.

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Filed Under: 1st amendment, congress, defamation, devin nunes, free speech, lev parnas, steven biss, ted lieu