After a series of failed civil lawsuits, Congressmember Devin Nunes has changed his strategy to filing criminal complaints. While civil lawsuits are subject to anti-SLAPP laws that could result in their dismissal, criminal complaints are not.
On August 13, the Tulare County District Attorney’s office filed a misdemeanor criminal complaint that states, “On or about January 20, 2020, in the County of Tulare, the crime of ANNOYING TELEPHONE CALLS, in violation of PENAL CODE SECTION 653M(a), a MISDEMEANOR, was committed by WILLIAM JOSEPH BURDEN.”
The complaint alleges that Burden unlawfully contacted Elizabeth Nunes, Devin Nunes’ wife, either by phone or electronically.
Maggie Melo, of the Law Offices of Melo and Sarsfield, is representing Burden and will appear on his behalf at the Tulare County Superior Court for the October 27 hearing.
“He’s never called her,” said Melo
The term “annoying telephone calls” is legal language used to describe the misdemeanor, but can also refer to electronic communications.
Because Burden has never been in communication with Mrs. Nunes, he thinks he might have made a Facebook comment sometime in January.
Burden, who lives in Los Angeles, has no ties to the City of Tulare or Tulare County. “They may not even have the correct person,” said Melo.
Although the Daily Wire characterized Burden as using obscene language and said he threatened to inflict injury to her or her property and family, Melo said that is not in the complaint.
The district attorney would not have waited nine months to file felony charges if threats to inflict injury had been made. If any threats had been made, Melo said, the District Attorney’s office would have filed a felony, not a misdemeanor complaint.
“The FBI would have been sent out immediately,” said Melo.
“My client is completely confused as to what this is all about. He has not threatened anyone,” Melo said.
The DA won’t give us anything
“We have not been given enough information to even defend our client,” said Melo.
Criminal complaints need to include specifics of what the defendant allegedly did, she said. “In a murder case the defendant is told who he is accused of murdering.”
Because the TCDA office has not provided enough information, Melo is considering filing a demurrer to request more information before the case proceeds.
“The DA has provided nothing. After multiple requests they haven’t even sent us the complaint,” she said.
Melo said that if the demurrer was granted, the District Attorney would have to reveal exactly what Burden is accused of saying or doing — but there are risks.
The prosecution could also add more charges, she said, opening Burden up to the possibility of being arrested.
Until the current criminal complaint, Nunes has been focusing on filing multiple defamation lawsuits adding up to half a billion dollars’ worth of damages.
But, according to Anti-SLAPP laws, public figures who file defamation lawsuits are liable to paying for the defendants’ legal bills. Anti-SLAPP laws were put in place to protect regular citizens’ First Amendment right to free speech.
Nunes has filed civil lawsuits against CNN, The Washington Post, the McClatchy newspaper publishing corporation, Twitter and Republican strategist Liz Mair in Virginia courts where Anti-SLAPP laws are much weaker than in California.
Nunes has also sued journalist Ryan Lizza and Esquire Magazine publisher Hearst over a 2018 article about Nunes’ family moving their dairy to Iowa. He is also suing Fusion GPS and Campaign for Accountability which filed ethics complaints against him. Nunes has warned that lawsuits against his former opponent Andrew Janz and California Congressmember Ted Lieu are in the works.
Nunes also sued Dinuba farmer Paul Buxman, librarian Hope Nisly and agrarian scholar Daniel O’Connell, all of whom questioned his “farmer” designation on the ballot. He dropped the suits after being criticized for suing a local farmer and one of his constituents. The backlash he received might explain why Nunes chose someone from Los Angeles for his criminal complaint.
Nunes’ expensive lawsuits have been seen as a “shot across the bow” or a warning to others who might think about criticizing the congressmember. The criminal complaint in turn will make citizens reconsider criticizing Nunes on social media.
“He is trying by any means to suppress the First Amendment,” said Melo.