California U.S. Rep. Devin Nunes is appealing a defamation lawsuit to the Virginia Supreme Court after the case was recently dismissed from the Albemarle County Circuit Court.
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.
“The Virginia Supreme Court has consistently warned Circuit Courts about granting demurrers and other motions that ‘short circuit’ the legal process, deprive litigants of their day in court and, ultimately, deprive the Supreme Court of an opportunity to review a thoroughly developed record on appeal,” the petition reads.
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 is 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 early May 2018, as part of its opposition research on Nunes, Fusion GPS found an obscure bit of litigation involving a former employee of the Alpha Omega Winery. Fusion GPS used the litigation to concoct a false story that would link Nunes to a yacht party, cocaine and underage prostitutes,” Nunes’ petition for appeal reads. “Fusion GPS engaged Mair, an expert in smear campaigns, as an intermediary to present the false narrative to the Fresno Bee.”
The petition also claims that Fusion GPS and Mair knew that McClatchy and the Fresno Bee “had an axe to grind against Nunes, and would be willing participants in the scheme to defame Nunes.”
Nunes’ petition for appeal goes on to argue that, when viewed in the light most favorable to Nunes, Mair’s words are actionable and accuses the congressman of “unlawful and unethical conduct.”
“Mair and McClatchy impute to Nunes knowledge and involvement in the yacht party with cocaine and underage hookers. Mair falsely accused a sitting Congressman of knowingly investing and staying involved in a company that, according to Mair, used “underage hookers to solicit investment,’” the petition reads. “Mair’s false statements hold Nunes up to scorn, ridicule, and contempt because they associate Nunes with an allegedly criminal enterprise.”
Biss made similar arguments on Nunes’ behalf in June. However, Albemarle County Circuit Court Judge Claude Worrell was unpersuaded by this argument and, according to a transcript from the case’s June hearing, said Biss failed to establish that Mair or anyone else conspired to defame Nunes.
“I think what Mr. Biss has pointed out, and rather successfully, that the business engaged in, in the target- rich environment that is American politics these days, is that Congressman Nunes was the brunt of some sharply focused political information that wasn’t untrue at the time it was written and therefore not defamatory,” he said. “It seems they took certain liberties with the language and did what they did with it, but that doesn’t mean that it’s recoverable as damages to Mr. Nunes.”
Legal experts have argued Nunes may have filed the lawsuit in Virginia to take advantage of the state’s relatively weak laws protecting journalists. It remains to be seen how those laws will affect the appeal.
No hearings are currently scheduled for Nunes appeal and a brief in opposition is not due for several weeks.