Devin Nunes Loses Yet Another One Of His SLAPP Suits

A little over a year ago, a DC watchdog group had asked the Office of Congressional Ethics to investigate Rep. Devin Nunes over his total failure to disclose who the hell is paying for all of his various frivolous SLAPP suits. As the group, Campaign Legal Center noted, Congress is forbidden from receiving free legal services unless they have set up a Legal Expense Fund -- and at least at the time of the investigation request, Nunes had not done so, despite having filed a bunch of lawsuits over the previous year.

As far as I can tell, nothing ever happened regarding that, but the issue is again worth exploring. Devin Nunes has been losing his lawsuits (badly) but continuing to push on with them anyway. In the fall of 2019, Nunes sued Fusion GPS and Glenn Simpson claiming racketeering (It's Not RICO, Dammit), because (he bizarrely claimed) they were harassing Nunes by filing a different ethics complaint against him. Nunes had some silly story about how Fusion GPS was trying to "interfere" with his "investigation." The "investigation" being Nunes' laughable attempt to argue that the Steele Dossier was illegal.

Anyway, a year ago that case was easiliy dismissed with the court warning Nunes' lawyer Steven Biss that, while he could refile, if they didn't add more substance to the complaint, they may face Rule 11 sanctions. In a move that will surprise no one, Biss/Nunes still filed an amended complaint last April. Now the case has been dismissed again. For reasons that I'm not clear on, over the summer the case was reassigned to a different judge, and that's why the new dismissal is from Judge Rossie Alston, rather than Judge Liam O'Grady, who handled the first dismissal.

The judge does the basic "It's Not RICO, Dammit" analysis to highlight that the Nunes/Biss claims of racketeering are ridiculous:

Here, Plaintiff fails to plausibly plead an association-in-fact enterprise because the Second Amended Complaint does not sufficiently allege the three structural features critical to support a RICO enterprise allegation. Both the Second Amended Complaint and Plaintiff’s Opposition merely recite the elements of an association-in-fact enterprise and allege only conclusory facts.

Critically, no reading of the facts alleged in Plaintiff’s Second Amended complaint can support a finding that an enterprise operated with the purpose or relationships the law requires.... Instead, the Second Amended Complaint is best read to allege that Defendants and the three other individuals and entities named in that document engaged in independent, parallel conduct directed at Plaintiff Nunes. By Plaintiff’s own telling, the entities and persons involved had different memberships and methods—even assuming they all shared the same generalized “motive” to harm Plaintiff’s political career. On its face, this is insufficient evidence of an association-in-fact enterprise with a shared purpose.... The only connection Plaintiff alleges between Defendants and Campaign for Accountability, McClatchy, and Mair is that Defendants “chose CfA, Mair and McClatchy” as “fronts or ‘cut-outs’ to carry out the obstruction scheme.”... These rote allegations that Defendants “operated” and “conducted the business of the enterprise” are unsupported by any specific facts. At best, Plaintiff alleges “consciously parallel conduct, which is not sufficient to satisfy Twombly’s pleading standard[.]”

There's a lot more, but this is the same reason the original complaint got tossed out. The judge also notes that the basis of Nunes' RICO claim is that... people filed an ethics complaint against him. The judge appears to raise his eyebrows at this concept:

Before analyzing the specific predicate acts, the Court acknowledges that Plaintiff’s case rests on importing a wholly novel set of facts—ethics complaints submitted against a sitting congressperson and providing research on that lawmaker to a news outlet for publication—into the civil RICO context.

Over and over and over again, the court finds that Biss just made a bunch of unsubstantiated claims that can't possibly be RICO. And thus, in the end:

All told, Plaintiff has failed to establish that the facts set forth in his Second Amended Complaint add up to form a single RICO predicate act. The Court reaches this conclusion having considered, as it must when deciding a motion to dismiss, the facts alleged in the light most favorable to Plaintiff

Given that Judge O'Grady had already warned Biss and Nunes that filing more of this nonsense may lead to Rule 11 sanctions, perhaps you'd expect Judge Alston to follow through on that threat. Unfortunately, as is all too often the case, the judge has decided to go easy on Biss (despite the fact that he keeps filing so many sketchy lawsuits). The defendants in the case even highlighted to the judge Biss' and Nunes' track record of filing all these bogus SLAPP suits. And, even so, the court lets them off the hook:

The Court declines to impose sanctions under Rule 11 at this time. The allegations made by Plaintiff are serious. They just cannot and do not confer authority to this Court to address the complaints Plaintiff has made. In this regard, Plaintiff’s counsel is reminded that litigation “asserted in bad faith or for the purpose of harassment” may be met with sanctions. ... Here, Plaintiff’s counsel has filed three complaints in this case since September of 2019. The Court has not issued a favorable ruling on any of the claims Plaintiff asserts. Accordingly, the Court’s dismissal of Plaintiff’s RICO claims is with prejudice and without leave to amend because in the Court’s view, amendment would be futile

So... why no sanctions? No further explanation is given. This is, unfortunately, par for the course. As we've seen over and over and over again, lawyers tend to have to have a reputation for filing dozens of these kinds of bogus lawsuits before courts finally start issuing sanctions.

So, no, Devin, it's not RICO, and you and Biss got off lucky (again!) this time, even though you still lost, like you've lost all of these lawsuits. And many of us are still wondering, who is paying for all of this wasteful, vexatious litigation?