WASHINGTON — The attorney representing Rep. Devin Nunes in six lawsuits has received two recent, rare warnings from judges that raise the prospect of courts sanctioning him.
People and organizations that Nunes’ attorney, Steven Biss, is suing have begun asking judges to punish him in several other instances.
Three of the requests for sanctions — from National Public Radio, Twitter and a government whistleblower advocate — mark an escalation in their defense against defamation lawsuits Biss has filed.
The most recent request for sanctions against Biss came from Fusion GPS, the firm known for creating the so-called “Steele dossier,” which contained unverified tips about President Donald Trump’s connections to Russia.
Nunes sued Fusion GPS last year and lost the case in February, when a federal judge dismissed it. The judge in tossing the case advised Biss that he’d need to file a more substantive complaint to avoid sanctions.
Biss and Nunes resubmitted the case in early April with a complaint that largely resembles their original argument. Fusion GPS’ lawyers last week called Nunes’ new complaint “absurd” and asked the judge to sanction Biss and Nunes.
Nunes “ignored that warning,” the Fusion GPS motion reads, arguing the new complaint “is so packed with irrelevant, frivolous and malicious allegations that it is impossible to decipher what conduct (Nunes) alleges is unlawful.”
Nunes is not a client in every case where lawyers are asking courts to discipline his attorney, but the cases share some common themes. In each one, Biss has filed fiery complaints alleging that news organizations and various Democratic activists conspired to harm his clients.
Those clients include Nunes, a Russian graduate student who was described in news stories about former National Security Adviser Michael Flynn, and a multimillionaire who allegedly helped circulate conspiracy theories about the death of a Democratic National Committee employee during the 2016 presidential election.
In dismissing the case for the Russian graduate student in February, Judge Leonie Brinkema of the U.S. District Court in the Eastern District of Virginia warned Biss against filing “further inappropriate pleadings.”
That was the same month the judge in the Fusion GPS case — in the same federal court — told Biss that he should make sure he follows federal law if he files another lawsuit.
Both of those rebukes are “quite unusual,” according to Kevin Martingayle, a former Virginia State Bar president who has worked on ethics or disciplinary committees for over a decade.
“If I got one warning like that from a judge, I would be extremely careful going forward,” Martingayle said.
“I can’t recall seeing it in an order after practicing law for 30 years, which has included some pretty contentious defamation cases,” he added.
Biss did not respond to a request for comment for this story.
Judges can impose sanctions, usually a financial penalty, against people and lawyers who abuse the legal system.
Biss has been sanctioned in the past for what the Virginia State Bar determined was “a deliberately wrongful act that reflects adversely on his fitness to practice law.” That resulted in Biss being suspended in 2008 from practicing law for a year.
Aside from the Fusion GPS case, he’s representing Nunes in lawsuits against four news organizations, Twitter, a Republican political strategist and anonymous people who criticize him on social media.
McClatchy, the parent company of The Fresno Bee, is among the news organizations Nunes is suing. He alleges he was defamed by a news story about an employee’s lawsuit against a winery in which he holds a financial stake. McClatchy has called the lawsuit a “baseless attack on local journalism” and moved to dismiss the lawsuit.
These are the cases where judges and opposing attorneys have raised the prospect of sanctions in Biss’ lawsuits:
Biss received a clear warning about sanctions in a recent decision dismissing a lawsuit he filed on behalf of a peripheral figure in early news stories about Russia’s interference with the 2016 presidential election.
His client was Svetlana Lokhova, a Russian-born student who attended a 2014 dinner in the United Kingdom with then-Lt. Gen. Michael Flynn. That dinner was described in multiple news reports after Trump won the election and Flynn came under scrutiny because of interactions with Russian officials.
With Biss, she sued The Washington Post, The New York Times and The Wall Street Journal, as well as Stefan Halper, the University of Cambridge professor she believed was the source for their news stories. The complaint made headlines because its first sentence described Halper with a profane term that refers to someone involved in political dirty tricks.
Halper filed a motion to sanction Lokhova and Biss in August, citing “bad faith litigation conduct.”
On Feb. 27, Judge Brinkema dismissed Lokhova’s case and used some critical words addressing Biss in her decision, saying his “excessively long complaint” included “unprofessional” attacks against Halper.
She wrote that she did not think the complaint warranted the “draconian measure” of sanctions. But she issued a warning.
“The allegations of improper behavior by Biss are undoubtedly more severe than those by Lokhova, and should Biss file further inappropriate pleadings or pursue frivolous post-judgment litigation against any of these defendants, sanctions might well be justified,” Brinkema wrote.
Judge Liam O’Grady of Virginia’s Eastern District Court handed Biss a less explicit warning about sanctions in a Feb. 21 decision dismissing Nunes’ lawsuit against Fusion GPS and progressive watchdog group Campaign for Accountability. Nunes had claimed that Fusion GPS and the left-leaning organization had damaged his reputation and interfered with his ability to lead the House Intelligence Committee.
O’Grady in a two-page ruling threw out the case and wrote that Nunes could file another amended complaint to his lawsuit within 30 days “if he can do so pursuant to Rule 11.”
Rule 11 is a federal law that says legal filings should be true to the best of the filer’s knowledge and should not be used to harass an opponent, but only for true legal grievances. It provides rules for sanctions if judges find those rules were not followed.
The small note stood out to Martingayle, especially in O’Grady’s brief dismissal.
“Judges are not in the habit of warning you before you do something,” Martingayle said.
Biss filed an amended complaint in early April, this time removing Campaign for Accountability as a defendant. But the substantive claims of the lawsuit are similar to the original filing, and Fusion GPS’s lawyers asked O’Grady on Monday to dismiss the lawsuit again.
Biss represents multimillionaire-dollar money manager Ed Butowksy in a defamation lawsuit against National Public Radio that is unfolding in a Texas federal court. Butowsky contends NPR defamed him in a news story that described his involvement in a now-retracted Fox News story about a Democratic National Committee employee, Seth Rich, who was killed in 2016.
NPR filed a motion to sanction both Butowsky and his lawyers, including Biss, in February, saying both had knowingly filed false information in the original complaint and that discovery in the case proved it. Biss and the other lawyers denied that.
NPR requested a hearing on the motion for sanctions in April, which the court has not yet granted.
Twitter and a well-known whistleblower advocate have asked a judge to sanction Biss in another lawsuit, in part because they argue he’s misusing the case to gather information for Nunes.
In the lawsuit, Biss’ client, Trevor Fitzgibbon, is suing whistleblower advocate Jesselyn Radack, alleging she defamed him by accusing him of sexual assault and that she breached a settlement agreement between the two of them.
Biss has used the lawsuit to issue subpoenas to Twitter demanding information about other people who do not appear to have anything to do with the original complaint.
Nunes with Biss as his attorney in Virginia is suing Twitter along with anonymous people who make fun of Nunes on Twitter under the personas of “Devin Nunes’ Cow” and “Devin Nunes’ Mom.” Twitter is asking a judge to dismiss the lawsuit, and a hearing is scheduled for June.
Biss sent a subpoena in Fitzgibbon’s lawsuit to Twitter, demanding information about the anonymously written Twitter account known as Devin Nunes’ Cow.
Radack and Twitter contend the cow subpoena is Biss’ attempt to get more information to use in Nunes’ case.
In a response to the motion for sanctions, Biss denies that he is trying to use the cow subpoena to help in another case.
Martingayle, the former Virginia State Bar president, said requests for sanctions are rare, and that attorneys can face penalties for filing frivolous sanctions requests.
He said lawyers have to be careful about their reputation otherwise they’ll find judges assessing them more critically.
“When parties and lawyers do not play by the rules it jeopardizes getting to the truth of the matter,” Martingayle said. “So judges don’t have a lot of tolerance for lawyers who push that boundary.”
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