(Photo by Alex Wong/Getty Images)
He’s baaaaack!
Well, to be fair, he never left. Rep. Devin Nunes and his razzledazzle libelslander lawyer Steven Biss have been filing whackadoodle complaints for years, apparently undaunted by their complete lack of success. And yesterday he added to his collection with a spiffy new defamation suit against NBC over a March 18, 2021 broadcast in which Rachel Maddow allegedly accused Nunes of accepting a package from Ukrainian politician Andriy Derkach — who was later sanctioned by the US government for trying to influence the election by falsely smearing Joe Biden — and failing to turn it over to the FBI.
Nunes’s signature move has been to sue media companies in Virginia state court, as he did with Twitter, CNN, and the Washington Post. But with judges tiring of that game, the California Republican is striking out for greener pastures.
Sure, NBC is a Delaware corporation doing business in New York. But it has offices in Texas, and it, uh, broadcasts there. And although the allegedly defamatory statements were made in New York and the plaintiff himself has no connection to Texas other than having donors and social media followers there, he’d still like to avail himself of the Eastern District of Texas’s hospitality. Of course this has nothing whatsoever to do with the court’s highly conservative make up and a recent decision by the Fifth Circuit barring application of the Lone Star State’s anti-SLAPP law in federal court.
So Nunes found himself the general-est of general practice local counsel and two-stepped into the Eastern District, where he was immediately assigned to US District Judge Amos Lous Mazzant, III, an Obama appointee. Womp womp!
But perhaps Mr. Nunes’s case was not destined for greatness anyway. Aside from the various jurisdictional issues, the allegedly defamatory statements consist of Maddow saying that Nunes “accepted a package” from Derkach, that he “refused to hand it over to the FBI,” and that “the Republicans have kept Mr. Nunes on as the top Republican on the intelligence committee.”
The first and third statements are clearly true. Democrats on the Intelligence Committee discovered that Derkach had sent the package when they were mistakenly given a copy of the DHL shipping receipt — good luck arguing that the distinction between accepting and receiving a package you took physical custody of amounts to defamation. And indeed Nunes remains the ranking member of the Intelligence Committee today.
As for the second statement, Nunes alleges that he handed the document over to the FBI immediately and without opening it, writing in a December 11, 2019 email to Bill Barr:
The House Intelligence Committee today received a package from foreign individuals addressed to me. We have strong reason to believe that the sending of this package is part of a foreign disinformation campaign that included participation by Americans. As a result, I request a meeting with you discuss these concerns at your earliest convenience.
Which raises some interesting questions, since it seems to suggest that Nunes knew all the way back in 2019, before the first impeachment, that he was being recruited into a foreign influence campaign involving Derkach and “Americans.” And in case it’s not clear which of his countrymen Nunes is referring to, let’s just note that December 11, 2019 was six days after the president’s lawyer, Rudy Giuliani, publicly met with Derkach in Ukraine, posing for that infamous photo of him accepting a sheaf of documents about Joe Biden.
Giuliani meets with Ukrainian lawmaker Andriy Derkach in Kyiv, Ukraine, Thursday, Dec. 5, 2019. Photo provided by Derkach’s press office.
And although Nunes told the FBI that he knew he was being targeted, he failed to mention it in the lead-up to the election when Giuliani was all over the airways spewing Kremlin-sponsored lies. In fact, he refused to say anything at all about it, and wouldn’t even admit to his Democratic HPSCI colleagues that he’d received the package, in a testy exchange first reported by Politico.
Nunes cites a Breitbart article from July 30, 2020 as proof that Maddow knew or was negligent as to the veracity of her claim that Nunes had refused to share the document with intelligence officials. In it, Rep. Rick Crawford (R-AR) said, “Here’s the thing: it’s standard practice that if you get a package from unknown source in a foreign country, it’s probably a good idea to call the FBI and let them handle it and not handle those packages and don’t open them and go, ‘Hey I wonder what this is? I guess it’s Christmas came early this year.’ No, you follow the protocol, which is you turn that over to the FBI. That’s what happened.”
Nunes, who steadfastly refused to say publicly whether he’d given the document to the FBI, points to Crawford’s avowal that “That’s what happened” and insists that Maddow must have known that he’d turned Derkach’s love note over to the FBI. But Politico, which broke the story on July 23, reported that, although Nunes rebuffed multiple requests for comment, “One person familiar with the matter said the information was not turned over to the FBI.” And with Nunes AWOL, there’s a credible argument that reporting was contradictory.
On the plus side for Nunes, his lawyer does appear to be learning. Unlike previous Nunes/Biss joints, this pleading omits the panegyric on the congressman’s Portuguese heritage and devotion to dairy farming. And now that he’s within spitting distance of a credible claim, he’s dropped the demand for eleventy million dollars to compensate for his hurt feefees, opting for damages to be determined by a jury. But, there is the whole business about it being filed in Texas, so …
SLOW CLAP, DEVIN, you’re a little less wrong than usual.
Nunes v. NBCUniversal Media [Docket via Court Listener]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
Kathryn Rubino is a Senior Editor at Above the Law, host of 
