Watchdog Group Asks Congressional Ethics Office To Investigate How Devin Nunes Is Paying For His Many SLAPP Suits

from the inquiring-minds-want-to-know dept

A bunch of folks keep asking just how Devin Nunes is paying for all of his various lawsuits against news organizations, journalists, political operatives, critics, and, most famously, a satirical internet cow. And now, a watchdog group, the Campaign Legal Center, has sent quite a letter, asking the Office of Congressional Ethics to investigate whether Nunes is violating any ethics rules in how these cases are financed.

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.

As the letter explains, even if Nunes' lawyer, Steven Biss, is providing his services pro bono, ethics rules apply:

Free (pro bono) legal services are subject to the gift rule and may only be accepted under the LEF regulations. 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.” 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. The Member must also file quarterly disclosure reports for the LEF.

While there are a few exceptions to those rules (such as if a Member of Congress is filing an amicus brief or challenging a federal law), it does not apply to the various defamation lawsuits Nunes is filing. And thus, the group is wondering what's going on here and how it can possibly comply with House ethics rules.

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 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. 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 letter goes on to note that even if he somehow convinced Biss to take these cases on contingency (which would be surprising for a variety of reasons), that would still be a gift that requires reporting. Reporting that has not occurred.

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. 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.

Indeed, the letter notes that the Committee on Ethics rejected a contingency fee agreement in a past situation involving a Congressional Representative filing a defamation lawsuit.

I have little faith that anything will actually come of this, but it's good to see at least some are paying attention to these questions and wondering just how Nunes is paying for Biss.

Filed Under: congress, devin nunes, ethics, financing, gifts, legal expense fund, legal services, oce, steven biss
Companies: campaign legal center


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  • icon
    Stephen T. Stone (profile), 28 Feb 2020 @ 12:09pm

    Oh wow, we might see government oversight of elected officials. I didn’t think we still had that in the United States.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 28 Feb 2020 @ 12:29pm

      Re:

      Given the way various oversight functions work in our government these days, I don't expect much. I would be pleasantly surprised if the OCE actually does their duty, and extremely happy if they found issue and did the right thing.

      With political pressures even though the House has a democratic majority I can see where a quid pro quo might take place (in order to get some other legislation passed) and nothing gets done, or the motions are gone through without actually dispensing any justice.

      reply to this | link to this | view in chronology ]

    • identicon
      Bobvious, 28 Feb 2020 @ 3:54pm

      Re: oversight

      No Stephen. Not oversight OF elected officials, we have oversight BY elected officials. Oops. My bad!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Feb 2020 @ 1:48am

      Re:

      The "ethics" office isn't what you think it is. They aren't going to listen.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 28 Feb 2020 @ 12:17pm

    Some long overdue sunlight

    Well now, this should be entertaining, someone possibly looking into a question that has come up every time an article covering Nunes' lawsuits pops up, 'Who exactly is funding all these lawsuits?'

    Assuming that the congressional ethics office actually has any ethics and is willing to take this serious it should be interesting to see the response from Nunes, as while it's possible that he'll simply provide the documentation required and show that the source is entirely acceptable I can't help but suspect that that will not be the case.

    Still, I'd be happy to be proven wrong, and if the funding is coming from a legitimate source and he simply forgot to file the proper paperwork is should be trivial for him to do so show that everything is above board and the only problem is his memory.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Feb 2020 @ 1:39pm

    Sweet!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Feb 2020 @ 4:48pm

    He'll probably do what fearless leader does...
    Thumb his nose at any inquiry saying...
    I don't have to...
    You cant make me...
    What are ya gonna do about it???

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 29 Feb 2020 @ 1:07pm

    Nunez is going to have a cow when he hears about this.

    reply to this | link to this | view in chronology ]

  • identicon
    bobob, 2 Mar 2020 @ 5:45am

    I think trump has already proved that those in congress are completely spineless and that all it takes to bypass a rule is to say "Make me stop, fuck you." That probably has more to do with the supposed political divide in the legislature being more for show than reality, the reality being that they all watch each other's backs to ensure the coporate money keeps rolling in.

    The chances that nunes will face any serious criticism are no better than the odds were that the house would use the evidence it had to draft articles of impeachment with anything but a crayon that ended up more lame than bad theater trying to create the illusion that a few representatives were serious about it.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 2 Mar 2020 @ 11:00am

      Re:

      Man, I've seen some ridiculous bothsiderism over the years, but "Democrats impeached the president and Republicans acquitted him; therefore Both Sides™ just let him do whatever he wants" might just take the cake.

      reply to this | link to this | view in chronology ]

      • identicon
        bobob, 2 Mar 2020 @ 11:42am

        Re: Re:

        The democrats made a complete shitshow of the impeachment and it was mostly theater. Had they wanted witnesses badly enough, the house could have used contempt of congress, enlisted the seargent at arms to enforce their subpoena power and let the courts intervene after they had arrested the witnesses they subpoened who chose to blow them off. Instead they just rolled over and let witnesses tell them to wipe their asses with the subpoenas so they could stall through the courts.

        If the democrats really had made much of an effort, they could have done a lot better than they did even if the end result was the same. I'm all in favor of the justice democrats fielding people to primary the doddering incumbents. The democratic party is mostly made up of closet republicans. So yeah, they did a shit job.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 2 Mar 2020 @ 12:48pm

          Re: Re: Re:

          I agree that it was mostly theater, but I don't see how escalating things in the manner you suggest would have changed anything.

          Had Democrats actually arrested members of the Trump executive branch for contempt of congress (if they even have the power to do so), it would have just given fuel to Trump's cries of "it's a coup!" and probably made things worse.

          Lots of information leaking out of the Senate indicated that many of the Republicans were well aware that Trump did exactly what he was accused of, and believed those actions were wrong. Some may have legitimately believed that his actions didn't rise to impeachable offenses, but most were more worried about their own re-election prospects in the face of defying Dear Leader.

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 2 Mar 2020 @ 1:46pm

            Re: Re: Re: Re:

            Some may have legitimately believed that his actions didn't rise to impeachable offenses, but most were more worried about their own re-election prospects in the face of defying Dear Leader.

            Can't see why, I mean it's not like there are any examples of someone voting against him being torn into on national television, with calls to kick them out of the party for having the utter gall of voting against the Dear Leader or anything...

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 3 Mar 2020 @ 6:39am

              Re: Re: Re: Re: Re:

              Oh, I'm not saying that such a concern would be unwarranted. However, the disappointing part comes from realizing that these people chose their career and their party over the welfare of the country. Removing a corrupt and/or incompetent person from the presidency might not have been the politically savvy thing to do as a Republican, but it might have been the patriotic thing to do.

              reply to this | link to this | view in chronology ]

              • icon
                That One Guy (profile), 4 Mar 2020 @ 12:39am

                Re: Re: Re: Re: Re: Re:

                However, the disappointing part comes from realizing that these people chose their career and their party over the welfare of the country.

                No argument there, it was pretty disgusting move that made clear their priorities and which comes first, personal power or the country.

                Removing a corrupt and/or incompetent person from the presidency might not have been the politically savvy thing to do as a Republican, but it might have been the patriotic thing to do.

                Had they done so en-mass I could see a way to spin in that way actually. 'Yes he was a president from our party but that doesn't matter, corruption is a problem no matter who engages in it and we can't honestly hold others to standards we ourselves refuse to enforce.' Trump would have thrown the tantrum to beat all tantrums to be sure, but with a vote like that they would have pretty effectively distanced themselves from him and let most of the fallout drop right on him, rather than what they did end up going with which just let the entire mess cover all of them.

                reply to this | link to this | view in chronology ]

  • icon
    ArkieGuy (profile), 3 Mar 2020 @ 8:38am

    Legal Watchdogs

    Hopefully, the Watchdogs will corral the herd of suits Nunes has pending and brand them as the nuisance suites they are.

    Moo

    reply to this | link to this | view in chronology ]


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