February 26, 2020 Chairman David Skaggs Co-Chairwoman Allison Hayward Office of Congressional Ethics 425 3rd Street, SW Suite 1110 Washington, DC 20024 Dear Chairman Skaggs and Co-Chairwoman Hayward: We write to request that the Office of Congressional Ethics (“OCE”) investigate whether Representative Devin Nunes is receiving free legal services in violation of the Rules of the House of Representatives (“House rules”). Specifically, Representative Nunes retained an attorney who represents him in several defamation lawsuits in various courts where he seeks a total of nearly $1 billion in damages. House rules prohibit a Member from receiving free legal services, unless the Member establishes a Legal Expense Fund (“LEF”). According to the House Legislative Resource Center, Representative Nunes has not filed any of the required reports to establish an LEF. The relevant facts detailed below establish that the OCE Board should authorize an investigation of Representative Nunes. Representative Nunes’s overt involvement with the highly-publicized lawsuits threatens to establish a precedent that the Legal Expense Fund (“LEF”) regulations no longer apply to Members. Although Representative Nunes is entitled to legal representation and he may pursue any legal action to protect and defend his interests, he must comply with House rules. An OCE investigation will preserve Representative Nunes’s legal right to counsel while upholding well-established House rules and precedent. House Rules Prohibit Members from Receiving Discounted or Free Legal Services A Member of the House of Representatives “may not knowingly accept a gift” with limited exceptions.1 A “gift” is defined to include “a gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value. The RULES OF THE HOUSE OF REPRESENTATIVES OF THE U.S. 116TH CONG., H.R. DOC. NO. 115177, at 983, Rule 25, cl. 5(a)(1)(A)(i) (“House Rules”). 1 term includes gifts of services, training, transportation, lodging, and meals, whether provided in kind, by purchase of a ticket, payment in advance, or reimbursement after the expense has been incurred.” 2 Therefore, gifts include legal services provided without charge or at a discount. A gift or discount for any gift from any source must fall below $50 per occasion, and less than $100 per year. 3 Free (pro bono) legal services are subject to the gift rule and may only be accepted under the LEF regulations. 4 Pursuant to the LEF regulations, a Member “who wishes to solicit and/or receive donations for a Legal Expense Fund, in cash or in kind, to pay legal expenses shall obtain the prior written permission of the Committee on Ethics.” 5 Within one week of the approval of the LEF, documentation showing the existence of the fund must be provided to the Legislative Resource Center for public disclosure. 6 The Member must also file quarterly disclosure reports for the LEF. 7 The requirement of establishing a legal expense fund has two exceptions. First, Members may accept pro bono legal assistance without permission from the Committee on Ethics if the expenses are for the following purposes: • • • To file an amicus brief in his or her capacity as a Member of Congress To participate in a civil action challenging the validity of any federal law or regulation; or To participate in a civil action challenging the lawfulness of an action of a federal agency, or an action of a federal official taken in an official capacity, provided that the action concerns a matter of public interest, rather than a matter that is personal in nature. 8 Second, in “certain circumstances campaign funds may also be used to pay legal expenses.” 9 However, both the “[Committee on Ethics] and the FEC should be consulted before campaign funds are used to pay any legal expenses.” 10 Id. at 5(a)(2)(A) (emphasis added). Id. at 5(a)(1)(B)(i). 4 COMM. ON STANDARDS OF OFFICIAL CONDUCT, 110TH CONG., HOUSE ETHICS MANUAL 63-64 (2008), available at https://ethics.house.gov/sites/ethics.house.gov/files/documents/2008_House_Ethics_Manual.p df. 5 H.R. COMM. ON ETHICS, 112TH CONG., LEGAL EXPENSE FUND REGULATIONS, Reg. 1.1., available at https://ethics.house.gov/sites/ethics.house.gov/files/Pink%20Sheet%20With%20Regs.pdf. 6 Id. at Reg. 4.1. 7 Id. at Reg. 4.2. 8 HOUSE ETHICS MANUAL, supra note 4, at 65. 9 Id. 10 Id. 2 3 2 Representative Nunes Is Receiving Legal Services In 2019, attorney Steven S. Biss began representing Representative Nunes in numerous legal matters. Mr. Biss filed five lawsuits in federal and state courts alleging that media organizations and others made defamatory statements about him. He also sent a letter to Representative Ted Lieu and threatened to file an ethics complaint with the Committee on Ethics because of alleged defamatory statements. 11 In addition, Mr. Biss sent a letter to a Fresno County Deputy District Attorney accusing him of aiding and abetting in defamatory actions against Representative Nunes. 12 Specifically, Mr. Biss’s legal services for Representative Nunes include the following: • March 19, 2019: Filed lawsuit against Twitter Inc. et al. in Virginia State Court in Henrico County. Representative Nunes seeks damages for defendants’ negligence, defamation, insulting words, and conspiracy. He seeks damages of $250,350,000, plus attorney’s costs and fees. 13 • April 8, 2019: Filed lawsuit on behalf of Representative Nunes against the McClatchy Company, et al. in Virginia State Court in Albemarle County. Rep. Nunes alleges defamation and conspiracy. Representative Nunes seeks damages of $150,350,000, plus attorney’s fees and costs. 14 • September 4, 2019: Filed lawsuit on behalf of Representative Nunes against Fusion GPS and Campaign for Accountability in federal court in the Eastern District of Virginia. Representative Nunes alleges RICO and conspiracy claims. Representative Nunes seeks damages of 13,550,000. 15 • September 30, 2019: Filed lawsuit on behalf of Representative Nunes against journalist Ryan Lizza in federal court in the Northern District of Iowa. Representative Nunes alleges defamation and conspiracy. Representative Nunes seeks damages of $77,500,000. 16 Letter from Steven S. Biss. Att’y to Rep. Devin G. Nunes, to Rep. Ted Lieu (Dec. 31, 2019), attached as Exhibit A. 12 Letter from Steven S. Biss. Att’y to Rep. Devin G. Nunes, to Andrew Janz, Fresno County Deputy District Att’y (Oct. 11, 2019), attached as Exhibit B. 13 Complaint, Nunes v. Twitter, Inc., et. al. (Va. Cir. Ct. March 19, 2019) (No. C49-1717), attached as Exhibit C. 14 Complaint, Nunes v. McClatchy Co., et. al. (Va. Cir. Ct. Apr. 8, 2019) (No. CL19-629), attached as Exhibit D. 15 Amended Complaint at 33, Nunes v. Fusion GPS & Campaign for Accountability (E.D. Va. Dec. 13, 2019) (Case 1:19-cv-01148-LO-TCB), attached as Exhibit E. 16 Complaint, Nunes v. Ryan Lizza & Hearst Magazines Inc. (N.D. Iowa Sept. 30, 2019) (No. 5:19-cv-04064-CJW-MAR), attached as Exhibit F. 11 3 • October 11, 2019: Sent a letter to a Fresno County Deputy District Attorney, Andrew Janz, alleging that he is “aiding and abetting the user or users of the @DevinCow Twitter account in the malicious harassment, cyberbullying, stalking and defamation of Mr. Nunes.” 17 • December 3, 2019: Filed lawsuit on behalf of Representative Nunes against the Cable News Network, Inc. in federal court in the Eastern District of Virginia. Rep. Nunes alleges defamation and conspiracy. Representative Nunes seeks damages of $435,350,000. 18 • December 31, 2019: Sent a letter to Representative Ted Lieu, stating that Representative Nunes intends to request an ethics investigation and review if Representative Lieu refuses to retract an allegedly defamatory statement. 19 Both Mr. Biss’s representation of Representative Nunes in litigation and his sending of letters on Representative Nunes’s behalf constitute legal services for purposes of House rules and the LEF regulations. Representative Nunes Has Not Disclosed Payments for the Legal Services There are three permissible sources of payment for Mr. Biss’s legal services under House rules: a legal expense fund, campaign funds, or Representative Nunes’s personal funds. Representative Nunes has not disclosed any of the required public reports necessary to establish that he has properly paid for the legal services using any permissible source. First, Representative Nunes has not filed LEF reports from 2019 to present. As explained above, a House Member who receives free legal services or legal services paid by a third party, must contact the Committee on Ethics and establish an LEF. The LEF regulations require the Representative to file an initial report and periodic reports. As a result of the lack of any LEF reports, it appears that an LEF is not paying for Representative Nunes’s legal services. Second, Representative Nunes’s campaign committee reports from 2019 to present do not list any payments to Mr. Biss. Representative Nunes may use campaign funds to pay for certain legal expenses after consultation with the Committee on Ethics and the Federal Election Commission (“FEC”). However, such expenditures must be included in the periodic campaign committee reports filed with the Federal Election Commission. Required FEC disclosures lack any record of campaign expenditures for Mr. Biss’s Letter from Steven S. Biss to Andrew Janz, supra note 12. Complaint at 46, Nunes v. Cable News Network, Inc. (E.D. Va. Dec. 3, 2019) (No. 3:19-cv00889), attached as Exhibit G. 19 Letter from Steven S. Biss to Rep. Ted Lieu, supra note 11. 17 18 4 services. Therefore, it appears that Representative Nunes’s campaign committee is not paying for his legal services. Finally, even if Representative Nunes argues that he is using his personal funds to pay for the legal services, he cannot accept any discount from Mr. Biss without violating House gift rules. Mr. Biss’s legal services include work that has spanned over nine months, five courts, and over eight defendants. The work includes lengthy and legally complex court filings, as well as demand letters to public officials. The legal services are time consuming and expensive, which has raised reported questions about whether Representative Nunes’s congressional salary can cover such legal expenses. 20 Even if Representative Nunes is paying for the legal services himself, he cannot receive them at a price that is lower than what Mr. Biss charges other clients for similar matters. Without any known sources of payment for Representative Nunes’s significant and growing legal expenses, there is a basis to investigate the matter and determine whether he is complying with all applicable House rules governing legal expenses. The Existence of a Contingency Fee Payment Agreement Would Not Provide Representative Nunes with an Exception to House Gift Rules Representative Nunes may argue the he has not disclosed payments for legal services because he retained his attorney under a contingency fee payment agreement (i.e., the lawyer will be reimbursed for costs he incurs if Representative Nunes prevails in the lawsuits). However, House gift rules do not have an exception for contingency fee agreements, and an OCE fact gathering is necessary to review such a claim. Legal services provided under a contingency fee agreement can violate the gift rule as a result of the expenses the lawyer incurs on behalf of the Member in anticipation that the Member will later use money recovered from the suit to reimburse all or some of the expenses. In other words, the lawyer is providing “payment[s] in advance,” which are prohibited under the gift rule. 21 Although it is reasonable to assume that the Committee on Ethics may approve certain contingency fee agreements on a case by case basis, there is no precedent establishing that all contingency fee agreements are permissible. The Committee on Ethics has precedent for reviewing contingency fee agreements in defamation suits such as those brought by Representative Nunes. For example, Representative Jean Schmidt filed a defamation lawsuit and requested that the Committee on Ethics approve a contingency fee agreement to pay her attorneys. The Committee on Ethics “denied permission to enter into the so-called ‘contingency fee’ arrangement.” 22 In See Kate Irby, Devin Nunes lives on a congressman’s salary. How is he funding so many lawsuits?, THE FRESNO BEE (Dec. 14, 2019), https://www.fresnobee.com/news/local/article238287238.html. 21 House Rules, supra note 1, at 5(a)(2)(A). 22 CHAIRMAN JO BONNER AND RANKING MEMBER LINDA T. SANCHEZ, U.S. COMM. ON ETHICS, IN THE MATTER OF ALLEGATIONS RELATED TO JEAN SCHMIDT, H.R. REP. NO. 112-195, at 11. 20 5 that matter, the Committee on Ethics found that “the phrase ‘contingency fee’ [was] a misnomer as [the lawyers] receipt of their fees [was] never contingent on the outcome of a matter.” 23 Moreover, an exception in the gift rule for all contingency fee agreements would swallow the LEF regulations. If such an exception existed, lawyers could easily disguise pro bono legal services as contingency fee agreements. In addition, contingency fee agreements could include a substantial discount in the market rate for legal fees, violating the prohibition on discounts (e.g., the lawyer receives 1% of any monetary judgement instead of the market rate of 33% or higher). Based on the nature of the extensive legal services that Representative Nunes continues to receive, the OCE and Committee on Ethics should review any alleged contingency fee agreement. Most importantly, any claim that Representative Nunes is receiving services under a contingency fee does not apply to all of Mr. Biss’s legal services. Mr. Biss sent a letter to Representative Lieu threatening to bring an ethics complaint against him. 24 An ethics complaint will not result in a monetary award that could support payment under a contingency fee agreement. Similarly, the letter that Mr. Biss sent to Deputy District Attorney Janz demands certain actions but does not seek monetary damages that could support payment under a contingency fee agreement. In sum, Representative Nunes has not disclosed the source of payments for the legal services he is receiving, and the possibility of a contingency fee agreement with his lawyer is not an absolute defense for a violation of the House gift rule. The OCE Authorizes Preliminary Reviews When there is a “Reasonable Basis to Believe” that a Member has Violated House Rules Pursuant to Rule 7 of the OCE Rules for the Conduct of Investigations, the “Board shall authorize a preliminary review of any allegation(s) when it determines there is a reasonable basis to believe the allegation(s) based on all the information then known to the Board.” 25 The OCE applies this low legal standard of proof to initiate preliminary reviews, while applying the higher standards of “probable cause” and “substantial reason to believe” to initiate second-phase reviews and referrals to the Committee on Ethics. “A reasonable basis to believe the allegation(s) exists when there is a reasonable and articulable basis for believing the allegation(s).” 26 (2011), available at https://www.govinfo.gov/content/pkg/CRPT-112hrpt195/pdf/CRPT112hrpt195.pdf. 23 Id. at 9. 24 Letter from Steven S. Biss to Rep. Ted Lieu, supra note 11. 25 OFF. OF CONG. ETHICS, RULES FOR THE CONDUCT OF INVESTIGATIONS Rule 7(A), available at https://oce.house.gov/sites/congressionalethics.house.gov/files/OCE_Rules_Conduct_Investiga tions.pdf. 26 Id. at Rule 7(A). 6 Based on undisputed facts, Mr. Biss has been providing legal services to Representative Nunes for nearly one year. The facts establish that Representative Nunes has not disclosed any source of payment for the legal services, either with an LEF or campaign funds. No facts support a reasonable basis to believe that Representative Nunes is personally paying for the legal services without a discount. Therefore, there is a reasonable basis to believe that Representative Nunes has improperly received legal services in violation of House gift rules. Conclusion An OCE preliminary review can determine whether Representative Nunes is complying with House rules. The OCE can learn during the initial 30-day period whether Representative Nunes has approval from the Committee on Ethics to accept the legal services. The OCE also has authority to collect information from Representative Nunes, Mr. Biss, and litigants from the relevant matters related to payments for Mr. Biss’s legal services. This preliminary review is needed to address what appears to be a blatant violation of House rules. For the foregoing reasons, we request that the OCE Board authorize a preliminary review of this matter. I acknowledge that 18 U.S.C. § 1001 applies to the information provided. Sincerely, _________/s/_________ Kedric L. Payne General Counsel and Senior Director, Ethics Campaign Legal Center _________/s/_________ Delaney N. Marsco Legal Counsel Campaign Legal Center 7 Exhibit A STEVEN S. BISS Attorney At Law 300 West Main Street, Suite 102 Charlottesville, Virginia 22903 Telephone: 804-501-8272 Fax: 202-318-4098 email: stevenbiss@earthlink.net stevensbiss@protonmail.ch www.linkedin.com/in/steven-s-biss-6517037 Matter No. 228-009 December 31, 2019 VIA EMAIL AND REGULAR MAIL Ted Lieu 403 Cannon HOB Washington, DC 20515 Marc.Cevasco@mail.house.gov Corey.Jacobson@mail.house.gov RE: Nunes v. Lieu 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 the 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”. 383 U.S. 75, 92-93 (1966); id. Milkovich v. Lorain Journal Co., 497 U.S. 1, 12 (1990) (“Good name in man and woman, dear my lord, Is the immediate jewel of their souls. Who steals my purse steals trash … But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed.”) (quoting WILLIAM SHAKESPEARE, OTHELLO, act 3 sc. 3)); Fuller v. Edwards, 180 Va. 191, 198, 22 S.E.2d 26 (1942) (“[o]ne’s right to an unimpaired limb and to an unimpaired reputation are, in each instance, absolute and has been since common law governed England. Indeed, an impaired reputation is at times more disastrous than a broken leg.”). Consistent with the constitutional right of an individual to the uninterrupted enjoyment of his name and reputation, the United States Supreme Court has repeatedly and without exception recognized that libelous speech is not protected by the First Amendment. Simply put, there is “no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-350 (1974); id. United States v. Alvarez, 132 S. Ct. 2537, 2560 (2012) (“false factual statements possess no First Amendment value.”); Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 504 (1984) (same); see also McKee v. Cosby, 139 S.Ct. 675, 680 (2019) (Thomas, J., concurring) (“Before our decision in New York Times [v. Sullivan], we consistently recognized that the First Amendment did not displace the common law of libel. As Justice Story explained, ‘The liberty of speech, or of the press, has nothing to do with this subject. They are not endangered by the punishment of libellous publications. The liberty of speech and the liberty of the press do not authorize malicious and injurious defamation.’ The Court consistently listed libel among the ‘well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem’”) (citations and quotations omitted) Importantly, words tending to scandalize a public figure are, in the esteemed opinion of William Blackstone, “reputed more highly injurious than when spoken of a private man”. McKee v. Cosby, 139 S.Ct. at 679 (quoting 3 W. Blackstone, Commentaries * 124)). At common law, libel of a public official was deemed an offense “‘most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.’” Id. (quoting M. Newell, Defamation, Libel and Slander § 533 (1890) (quoting Commonwealth v. Clap, 4 Mass. 163, 169-170 (1808)); accord White v. Nicholls, 3 How. 266, 290 (1845))). In 1810, during the second term of United States President James Madison, the Supreme Court of New York affirmed a judgment entered in favor of a Member of Congress against a newspaper. The Court ruled that to publish of a Member of Congress that he is a “fawning sycophant”, a “misrepresentative of Congress”, a “grovelling office-seeker”, that he “abandoned his post in Congress”, that doubts existed as to both his “ability and integrity”, and that he received counterfeit money, is libellous: “It is impossible to read the libel in this case, without understanding that the defendant meant to insinuate that the plaintiff had received the counterfeit money with intent to pass it … I am perfectly satisfied that the libel contains a highly colored account of the proceedings, that it suppresses, for bad purposes, material facts, and that it conveys insinuations of the plaintiff’s guilt, unauthorized by the trial and the facts which transpired at the time of the trial; and if so, the inference of malice was inevitable.” Thomas v. Croswell, 7 Johns. 264, 272-273 (NY 1810). 2 On December 30, 2019, you published an email to multiple persons throughout the United States that falsely accused Devin Nunes of numerous federal crimes. Naturally and as intended, your email was republished on Twitter: 3 [https://twitter.com/justjanedoee/status/1211729649169883136]. Your defamatory statements were read and republished in Virginia and elsewhere, e.g.: [https://twitter.com/skinner6775/status/1211818984900833280]. Your actions are unlawful and grossly unethical. Your poisonous lack of civility infects, corrodes and degrades American society. It is needless and pointless, and it threatens to impair the important business of Congress. It must stop. Demand is hereby made upon you as follows: 1. Immediately publish an email to each and every person on your mail list, retracting and renunciating your email and all statements about Devin Nunes in the email; 2. Pin a copy of your retraction to your Twitter account, @tedlieu; and 3. Issue a public apology to Devin Nunes for the harm caused by publication of your false statements; and 4. Cease and desist from the publication of any further false and defamatory statements. 4 Please understand: My client wishes to resolve this matter with you amicably and without litigation. If you refuse to take the above action, however, he intends to request an investigation and review by the House Committee on Ethics and he will, if the matter is not fully resolved, pursue appropriate legal action to protect his name and reputation. I trust you to do the right and honorable thing. Call or email me if you have any questions. Yours very truly, /s/ Steven S. Biss Steven S. Biss cc. Devin G. Nunes cc. Hon. Ted. Deutch, Chairman Hon. Kenny Marchant, Ranking Member House Committee on Ethics 1015 Longworth House Office Building (LHOB) Washington, DC 20515 Tom.rust@mail.house.gov Chris.donesa@mail.house.gov 5 Exhibit STEVEN S. BISS Attorney At Law 300 West Main Street, Suite 102 Charlottesville, Virginia 22903 Telephone: 804-501-8272 Fax: 202-318-4098 email: stevenbiss@earthlink.net stevensbiss@protonmail.ch www.linkedin.com/in/steven-s-biss-6517037 Matter No. 228-004 October 11, 2019 VIA EMAIL AND REGULAR MAIL Andrew Narong Janz, Esquire Fresno County District Attorney’s Office 2220 Tulare Street, Suite 1000 Fresno, California 93721 damail@fresnocountyca.gov RE: Devin G. Nunes Dear Mr. Janz: I represent Devin G. Nunes. I write again – this time to address a matter of grave import and enormous consequence. You are an Attorney and a State Prosecutor. You know that it is criminal and wrongful for any person to engage in cyberbullying, computer harassment, stalking and other threatening behavior. [See, e.g., Cal. Pen. Code § 653.2; Cal. Pen. Code § 653m; Cal. Pen. Code § 646.9]. Of course, threatening government officials of the United States is a Federal crime. [See, e.g., 18 U.S.C. § 111; 18 U.S.C. § 351(e)]. As you well know, for over two years, Mr. Nunes has been maliciously harassed, stalked, bullied online, threatened and egregiously defamed on Twitter by the user or users who post day and night, through the anonymous Twitter account, @DevinCow. [https://twitter.com/DevinCow]. In December 2018, you started the “Voter Protection Project”. [http://protectvoting.org/leadership/]. In March 2019, the Fresno Bee reported that you intended to provide a legal defense fund for @DevinCow through your PAC. [https://www.fresnobee.com/news/politics-government/article228305684.html]. As you well know, @DevinCow has been using your PAC to solicit funds to pay legal expenses, with any funds not used on legal fees to go “straight to beating Devin Nunes in 2020”: It is unclear from a review of your FEC filings how much money has been raised for @DevinCow and how much has been disbursed to or for the benefit of @DevinCow [https://docquery.fec.gov/pdf/962/201907269151675962/201907269151675962.pdf#nav panes=0], although I note substantial disbursements to digital and communications consultants and the following payment to legal counsel in Richmond, Virginia: 2 Based upon the evidence I have reviewed, it appears that you or an agent or agents acting at your direction is coordinating, instigating, aiding and abetting the user or users of the @DevinCow Twitter account in the malicious harassment, cyberbullying, stalking and defamation of Mr. Nunes. As you acknowledged in March 2019 to the Fresno Bee, you know the identity of the user or users of @DevinCow, and you are funding these persons. This behavior is completely incompatible with your ethical and legal duties as a Fresno County Deputy District Attorney. Demand is hereby made upon you as follows: 1. Immediately cause the user or users of @DevinCow to cease and desist from publishing any further false or defamatory statements of and concerning Mr. Nunes; 2. Immediately cause the @DevinCow Twitter account to retract all harassing, disparaging, false and defamatory tweets and retweets of and concerning Mr. Nunes, and apologize for the harm done to Mr. Nunes and his family; 3. Within one (1) business day of retraction and public apology, cause the termination of the @DevinCow Twitter account. As a Deputy District Attorney, it would be egregious and irresponsible for you to continue to keep secret from the public the identity of @DevinCow. You are legally, ethically and morally responsible to act now. Call or email me if you have any questions. Yours very truly, /s/ Steven S. Biss Steven S. Biss cc. Devin G. Nunes 3 Exhibit 6.0161 .ifi) IN OFFICE "maid/i RECEIVED Fl] WW Deputy Clerk, l-lunrieo Circuit Court VIRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF HENRICO DEVIN G. NUNES Plaintiffs, Case No. CUM (I ?6 TRIAL BY JURY TWITTER, INC., IS DEMANDED ELIZABETH A. MAIR, MAIR STRATEGIES, LLC, [@DevinNunesMom] [@DevinCow] Defendants. COMPLAINT Plaintiff, Devin G. Nunes, by counsel, ?les the following Complaint against defendants, Twitter, Inc. (?Twitter?), Elizabeth A. ?Liz? Mair Mair Strategies, LLC (?Mair Strategies?), ?Devin Nunes? Mom? (@DevinNunesMom) and ?Devin Nunes? cow" (@DevinCow), jointly and severally. Plaintiff seeks compensatory damages and punitive damages in an amount not less than $250,000,000.00, prejudgment interest on the principal sum awarded by the Jury from March 18, 2018 to the date of Judgment at the rate of six percent per year pursuant to 8.01-382 of the Virginia Code (1950), as amended (the ?Code?), injunctive relief, and court costs arising out of defendants? negligence, defamation per se, insulting words, and civil conspiracy. I. INTRODUCTION 1. Twitter is an information content provider.1 Twitter creates and develops2 content,3 in whole or in part, through a combination of means: by explicit censorship The term ?information content provider? means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. See Title 47 US. C. 3009(3). The word responsible ordinarily has a normative connotation. See The Oxford English Dictionary 742 (2"d ed. 1998) (stating one de?nition of responsible as ?Morally accountable for one?s actions?). As one authority puts it: ?[W]hen we say, ?Every man is responsible for his own actions,? we do not think de?nitely of any authority, law, or tribunal before which he must answer, but rather of the general law of right, the moral constitution of the James C. Femald, Funk Wagnalls Standard Handbook of Synonyms, Antonyms, and Prepositions 366 (1947). Synonyms for responsibility in this context are blame, fault, guilt, and culpability. See Oxford American Writer?s Thesaurus 747 (2"d ed. 2008). Accordingly, to be ?reSponsible? for the development of offensive content, such as defamation, one must be more than a neutral conduit for that content. One is not ?responsible? for the development of offensive content if one?s conduct was neutral with respect to the offensiveness of the content (as would be the case with the typical Internet bulletin board). We would not ordinarily say that one who builds a highway is ?responsible? for the use of that highway by a ?eeing bank robber, even though the culprit?s escape was facilitated by the availability of the highway. Twitter is ?responsible? for the development of offensive content on its platform because it in some way speci?cally encourages development of what is offensive about the content. FTC v. Accusearch, Inc, 570 F.3d 1187, 1198-1199 (10?h Cir. 2009) (citing Fair Housing of Council of San Fernando Valley v. Roommates. com, LLC, 521 F.3d 1157, 1168 (9th Cir. 2008) website helps to develop unlawful content it contributes materially to the alleged illegality of the conduct?). 2 The word develop derives from the Old French desveloper, which means, in essence, to unwrap. Webster?s Third New International Dictionary 618 (2002) (explaining that devel0per is composed of the word veloper, meaning ?to wrap up,? and the negative pre?x des The dictionary de?nitions for develop correspondingly revolve around the act of drawing something out, making it ?visible,? ?active,? or ?usable.? 1d Thus, a photograph is deve10ped by chemical processes exposing a latent image. See id Land is developed by harnessing its untapped potential for building or for extracting resources. See id. Likewise, when con?dential information is exposed to public view that information is ?developed.? See id. (one de?nition of develop is ?to make actually available or usable (something previously only potentially available or usable)?). FTC v. Accusearch, Inc, 570 F.3d 1187, 1198 (10?h Cir. 2009). 3 ?Content? is information. It is the prinCipal substance (such as written matter, illustrations, or music) offered by a website. webster. com/dictionarv/contentl. of vieWpoints with which it disagrees, by shadow-banning conservatives, such as Plainti?, by knowingly hosting and monetizing content that is clearly abusive, hateful and defamatory providing both a voice and ?nancial incentive to the defamers thereby facilitating defamation on its platform, by completely ignoring lawful complaints about offensive content and by allowing that content to remain accessible to the public, and by intentionally abandoning and refusing to enforce its so-called Terms of Service and Twitter Rules essentially refusing to self-regulate thereby selectively amplifying the message of defamers such as Mair, Devin Nunes? Mom and Devin Nunes? cow, and materially contributing to the libelousness of the hundreds of posts at issue in this action. 2. Twitter created and developed the content at issue in this case by transforming false accusations of criminal conduct, imputed wrongdoing, dishonesty and lack of integrity into a publicly available commodity used by unscrupulous political operatives and their donor/clients as a weapon. Twitter knew the defamation was (and is) happening. Twitter let it happen because Twitter had (and has) a political agenda and motive: Twitter allowed (and allows) its platform to serve as a portal of defamation in order to undermine public con?dence in Plaintiff and to bene?t his opponents and opponents of the Republican Party. In this case, Twitter contributed materially to the illegal conduct of defamers Mair, Devin Nunes? Mom and Devin Nunes? cow. Twitter, by its actions, intended to generate and proliferate the false and defamatory statements about Plaintiff in order to in?uence the outcome of the 2018 Congressional election and to intimidate Plaintiff and interfere with his important investigation of corruption by the Clinton campaign and alleged Russian involvement in the 2016 Presidential Election. Twitter knowingly acted as a vessel of opposition research. II. PARTIES 3. Plaintiff, Devin G. Nunes (?Nunes? or ?P1aintiff?), is a citizen of California. Born October 1, 1973, Nunes has served in the United States House of Representatives since 2003. He currently represents California?s 22nd Congressional District, which is located in the San Joaquin Valley and includes portions of Tulare and Fresno Counties. He and his wife have three daughters. He is the author of the book, Restoring the Republic, which was published in September 2010. Nunes was born in Tulare, California. His family is of Portuguese descent, having emigrated from the Azores to California. From childhood, he worked on a farm that his family operated in Tulare County for three generations. Nunes raised cattle as a teenager, used his savings to begin a harvesting business, and then bought his own farmland with his brother. Nunes graduated from Tulare Union High School. After associate?s work at College of the Sequoias, Nunes graduated from Cal Poly San Luis Obispo, where he received a bachelor?s degree in agricultural business and a master?s degree in agriculture. Nunes was ?rst elected to public of?ce as one of Califomia?s youngest community college trustees in state history member of the College of the Sequoias Board from 1996 to 2002, he was an advocate for distance learning and the expansion of programs available to high school students. In 2001, he was appointed by President George W. Bush to serve as California State Director for the United States Department of Agriculture?s Rural Development section. He left this post to run for California?s 21St Congressional District and now serves in the 22nd District as a result of redistricting in 2010. Nunes serves as Ranking Member of the House'Permanent Select Committee on Intelligence, having been appointed to the Committee in the 112?h Congress and serving as Committee Chairman during the 114th and 115th Congresses. He was appointed to the Ways and Means Committee in the 109m Congress and now serves as a Ranking Member of the Health Subcommittee and a member of the Trade Subcommittee, having served as Chairman of the Trade Subcommittee in the 113th Congress. Nunes previously served as a member of the House Budget during the 111th Congress. In the 108th Congress, his ?rst term in the House of Representatives, he served on the House Resources Committee, in which he was Chairman of the National Parks Subcommittee, and on the Agriculture and Veterans Affairs Committees. Congressman Nunes has traveled extensively to war zones to meet with soldiers and examine ?rst-hand their status. As a member of the House Permanent Select Committee on Intelligence, he participates in oversight of the US. national security apparatus, including the intelligence-related activities of seventeen agencies, departments, and other elements of the United States Government. Nunes authored the Hubbard Act of 2008 (HR. 5825), which was named in honor of the Hubbard brothers of California Jared, Nathan, and Jason. Jared and Nathan lost their lives serving in Iraq. Jason was discharged as a sole survivor, but was denied separation bene?ts upon leaving the Army. The Hubbard Act, which was enacted into law, provides sole survivors with numerous bene?ts that were already offered to other soldiers honorably discharged. It relieves sole survivors from repaying any portion of their enlistment bonus; entitles them to the educational bene?ts of the Montgomery GI Bill; and allows them to receive separation pay and transitional healthcare coverage. 4. Nunes? career as a United States Congressman is distinguished by his honor, dedication and service to his constituents and his country, his honesty, integrity, ethics, and reputation for truthfulness. and veracity. 5. In 2018, during his last re?election for the 22nd Congressional District, Nunes endured an orchestrated defamation campaign of stunning breadth and scope, one that no human being should ever have to bear and suffer in their whole life. Unlike prior elections, where Nunes won by sweeping majorities, NUnes won on November 6, 2018 by a much narrower margin, receiving 52.7% of the 222,379 votes. The malicious, false and defamatory statements and relentless attacks on Nunes? reputation did not stop after he won the Congressional election in 2018. The defamation continues. It must be stopped. 6. Defendant, Twitter, is a Delaware corporation. Its principal executive of?ce (headquarters) is in California. Twitter is a public company (N with 35+ of?ces worldwide. In its 2017 annual report on Form 10-K, filed with the United States Securities and Exchange Commission Twitter made the following representations about its business and primary service: Twitter is the best place to see what's happening and what people are talking about. Every day, instances of breaking news. entertainment. sports, politics. big events and everyday interests happen first on Twitter. Twitter is where the lull story untotds with ive commentary and where live events some to tile unlike anywhere else. Our primary service can be accessed on a variety of mobile devices, at twittercom and via SMS. Our primary service, Twitter. is a global platlorm lor public self-expression and conversation in real time. Twitter allows people to consume, create, distribute and discover content and has democratized content creation and distrbution. The reach of Twitter content is not limited to our logged-in users on the Twitter platform, but rather extends to a larger global audience. The pubic nature of the Twitter plattorm allows us and others to extend the reach of Twitter content beyond our properties. Media outlets and our platlorm partners distribute Tweets beyond our preperties to complement their content by making it more timely, relevant and comprehensive. These outlets and partners also add value to our user experience by contributing content to our platform. Many of the world?s most trusted media outlets, including the BBC, CNN, Bloomberg and the Associated Press. regularly use Twitter as a platform tor content distribution. Twitter is ubiquitous. Twitter is at home in Virginia. Twitter is registered to transact business in Virginia (VA SCC Id. No. 198299-2); it maintains a registered of?ce and registered agent in Glen Allen, Virginia (Henrico County); millions of Virginians have Twitter accounts and use Twitter on a daily basis; Twitter targets Virginians every minute of every day with advertisements of all kinds and earns millions of dollars in revenues from its Virginia source customers. Twitter?s technology platform and information database enables it to target citizens based on ?audience attributes? like ?geography, interests, keyword, television conversation, content, event and devices?. Twitter?s targeting capabilities allow it to develop content and act as a political action committee and, as happened in this case, to squelch the voice and assassinate the character of its political opponents. Twitter makes it possible ?for advertisers to promote their brands, products and services, amplify their visibility and reach, and complement and extend the conversation around their advertising campaigns? in a variety of ways. Through the use of ?Promoted Products?, such as ?Promoted Tweets?,4 ?Promoted Accounts? and 4 Using its ?proprietary algorithm and understanding of each user?s Interest Graph,? Twitter delivers Promoted Tweets that are ?intended to be relevant to a particular user.? Twitter?s goal is to ?enable advertisers to create and Optimize successful marketing?campaigns and pay either on impressions delivered or pay only for the user actions that are aligned with their marketing objectives.? ?Promoted Trends?, Twitter enables advertisers to target Virginians based on a variety of factors, including a user?s ?Interest Graph?.5 7. Defendant, Mair, is a citizen of Virginia. She lives and works in Arlington County. Mair joined Twitter in either 2007 or 2010. She currently operates a twitter account, titled ?BrandValue$4B?, with the handle/tag ?@LizMair? and 37,900 followers. m; see also Mair?s Twitter pro?le discloses that she is a ?Comms strategist. Blunt Walker Rand Paul Perry Fiorina former RNC Online Comms Director; Tory; libertarian; Arsenal fan?. Mair claims that she is ?the leading right-of?center online communications operative?. In December 2015, Mair founded a super PAC called ?Make America Awesome? (FEC Id. C00594176), whose sole (and failed) purpose was to block and reverse Donald?s Trump?s ascent in politics by using ?unconventional and cost-effective tactics?.7 Mair claims that since 2011 she has ?advised multiple Fortune 500, FTSE 100 and other publicly-traded corporate clients, as 5 Twitter conducts surveillance on its users, collects data on its users and sells that data to advertisers and others. The ?Interest Graph maps, among other things, interests based on users followed and actions taken on our platform, such as Tweets created and engagement with Tweets.? 5 Mair was terminated from the Walker campaign shortly after she tweeted derogatory and disparaging statements about the residents of Iowa. 7 Plaintiff was a member of the Trump transition team, and is widely recognized for his arguments that the accusations that President Trump and his associates colluded with Russia are false. Mair is famous for her appearance on CNN, where she referred to then presidential candidate Donald Trump as a ?loud mouth dick?. strategist liz mair trum a loud mouth dick.htm1. well as numerous large trade associations and prominent non-pro?ts on communications her LinkedIn pro?le, Mair admits that: What do I do for these clients? Anonymously smear their opposition on the Internet. More broadly? Get sh*t done. During Nunes re-election campaign in 2018, Mair conspired with (and presumably was paid by) one or more as-yet unknown ?clients? to attack and smear Nunes. True to her word on Linkedfn, Mair relentlessly smeared and defamed Nunes during the campaign, ?lming stunts at Nunes? of?ce in Washington, DC. and posting them online, publishing videos on YouTube that falsely accused Nunes of multiple crimes, repeatedly publishing false and defamatory statements on Twitter,8 defaming Nunes online and to the press, and ?ling fraudulent ethics complaints against Nunes accusing him, inter alia, of violating House Ethics Rules, e. 3 Mair falsely tweeted to her 37,900 followers, inter alia, that Nunes ?voted for warrantless wiretapping and unlimited surveillance of Americans? emails (incl Carter Page?s)? that Nunes broke the law when he ?Spent contributions that are supposed to be used for the express purposes of the PAC or committee in question, and not for ?nancing their personal lifestyle choices. That is a legal problem, not just an ethical or optics-related one? and that Nunes leaked text messages between a lobbyist and Senator Mark Warner to Fox News Even after Nunes won the election, Mair continued to attack him, stating, inter alia, that Nunes was ?still a clown with big league ethical issues that may well cost him his seat in 2020? 574579223 949312]. accountable?ref code=share&utm source=sharer- ask&utm medium=receipt&utm tm content=20&source As part of her smear campaign on behalf of clients, Mair was out to ?stick it? to Nunes in 2018. By her own admissions, she ?hates Devin Nunes? and ?dumped'2 a lot? on Nunes. Mair tweeted 9 Among the false statements published by Mair in this video is that ?Nunes is still entangled with a winery implicated in a scandal involving his co-investors, cocaine and child prostitutes?. In this publication, Mair makes the following false statements about Nunes: ?Ethical leadership in government? He?s invested in a winery that allegedly solicited capital by using underage prostitutes. Really?. Mair published the following statement to the Fresno Bee, [the Of?ce of Congressional Ethics] should prioritize a review of Rep. Nunes? investment and involvement in the Alpha Omega Winery, and the facts reported by The Fresno Bee. Such review should be undertaken as swiftly as possible?. ?2 Opposition research (also called ?oppo? research) 'is the practice of collecting information on a political opponent or other adversary that can be used to discredit or otherwise weaken them. The information can include biographical, legal, criminal, medical, educational, or ?nancial history or activities. ?Oppo dumps? are used by political campaigns to systematically supply ?les of damaging information to press outlets, including matters of the public record, video footage from party archives and private collections, as well as private intelligence gathered by operatives. 10 A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser event?. Mair?s tweet, with an article by the Fresno Bee attached, implied that Nunes colluded with prostitutes and cocaine addicts, that Nunes does cocaine, and that Nunes was involved in a ?Russian money laundering front?. One of Mair?s most egregious and defamatory tweets about Nunes was the following: BrandValue$4B? @LizMair To be fair, I think the @fresnobee writing up your investment in a winery that allegedly used underage hookers to solicit investment-- an allegation you've known about for years, during which you've stayed invested in it, I might'add-? did surprise you. Devin Nunes Q) @DevinNunes Nothing surprises me any 11:10 PM - Jun 22, 2018 . Twitter Web Client 1.6K Retweets 4.4K Likes 10103594628913274901. At all times relevant to this action, Mair harbored spite, ill-will, actual malice, and a demonstrated desire to injure Nunes? good name and reputation. Mair?s tweets about Nunes, for example, referred to the Congressman with disdain as ?Dirty Devin?. 8. Defendant, Mair Strategies, is a Virginia limited liability company, active and in good standing. Mair is the sole member and manager of Mair Strategies. On its 11 website, Mair Strategies claims to be a ?boutique communications and public relations ?rm, with specialties in online, political, and crisis communications, as well as opposition research formulation and seeding.? Mair Strategies represents that it is an ?entirely virtual firm staffed by politics veterans? ?the ?rm is ?lean and mean? and brings an aggressive, hard-hitting, presidential campaign- style approach to issues work it manages and executes for its clients.? At all times relevant to this action, Mair acted within the scope of her employment for Mair Strategies, acted during work hours and while conducting Mair Strategies? business, using a Twitter account that linked back to Mair Strategies, and with the knowledge and actual or apparent authority of Mair Strategies. Mair Strategies is liable for Mair?s defamation of Nunes under the doctrine of respondeat superior. 9. Defendant, Devin Nunes? Mom, is a person who, with Twitter?s consent, hijacked Nunes? name, falsely impersonated Nunes? mother, and created and maintained an account on Twitter (@DevinNunesMom) for the sole purpose of attacking, defaming, disparaging and demeaning Nunes. Between February 2018 and March 2019, Twitter allowed @DevinNunesMom to post hundreds of egregiously false, defamatory, insulting, abusive, hate?il, scandalous and vile statements about Nunes that without question violated Twitter?s Terms of Service and Rules, including a seemingly endless series of tweets that falsely accused Nunes of obstruction of justice, perjury, misuse of classified information, and other federal crimes: 12 Devin Nunes' Mom ., - :13. . Follow @DevaunesMom Running around DCjumping from Ubers doing political stunts, obstructing an inyestigatiOn he was supposed to lead, leaking classified info. And what about Central Valley?s water infrastructure? I don't know about you but I'm getting tired of this bullshit. #Removel?lunes #Drewfor22 ea: .i . . Andrew Janz @lanzAndrey-d Nunes is compromised. Help me take this national security threat out of office. Every dollar goes to my grassroots campaign that can #removenunes (W) om Follow This is going to be disastrous for but please understand @Devinl?lunes' difficult situation. Between being eyeball-deep in a federal obstruction investigation and then cradling the president's balls full time, hejust doesn't have time for you anymore. Surely you understand. 13 Devin Nunes' Mom @DevinNunesMom 24 May 2018 ?113.3; I wonder who' 5 payingm @DevinNunes all this money to obstIuctjustice? a? Washington Examiner$ @dcexaminer .. Devin Nunes' fundralsing explodes amid aggressive defense of Trump from Russia probe 24 El 128 C) 367 Ml; Devin Nunes Mom Foilow 3:1 :9 @DevinNunes Mom Replying to @FoxNews OFBI @DevinNunes your district is looking for you? Are you trying to obstruct a federal investigation again? You come home right this instant or no more Minecraft! 1:32 AM - ii Jun 2018 rig-f: Devin Nunes' Mom Follow @DevinNun-esiuiom On November 6 you have the choice between law and order or obstruction ofjustice. #Drewior22 #RemoveNunes Andrew Janz @JanzAndrew Great spot in @RollingStone. l'm proud to be the law and order candidate in this race. 9:04 PM 25 Oct 2018 14 Devin Nunes' Mom Foam nit. 9' @DevinNunesMom If you believe in law and order vote for @JanzforCongress. if you believe in obstruction ofjustice and perjury vote for @DevinNunes. Muclcmai