After Donald Trump lost the presidential election, Joseph Oltmann, a conservative activist and podcaster in Colorado, began telling a story that he said helped explain that outcome. Sometime during the week of September 27, Oltmann claimed, he had "infiltrated an antifa conference call," during which one participant asked, "What are we gonna do if fucking Trump wins?" According to Oltmann's account, a man named Eric, identified by someone else on the call as "the Dominion guy," replied: "Don't worry about the election. Trump is not gonna win. I made fucking sure of that. Hahahaha."
From that exchange, Oltmann said, he deduced that Eric Coomer, director of product strategy and security at Dominion Voting Systems, was involved in an elaborate criminal conspiracy to steal the election by rigging vote-counting machines. Thus was born a central element of a fantasy promoted by Trump and his diehard supporters across the country, including Rudy Giuliani, his personal attorney, and Sidney Powell, a lawyer whom Jenna Ellis, the Trump campaign's senior legal adviser, described as a member of the "elite strike force team…working on behalf of the president and the campaign." And thus was born the defamation lawsuit that Coomer filed in Colorado yesterday against Oltmann, Giuliani, Powell, and the Trump campaign, along with two news outlets and several journalists who have credulously promoted Oltmann's tale.
"To be clear," the complaint says, "Dr. Coomer has no knowledge of an alleged 'Antifa Conference Call'; Dr. Coomer did not participate in such an alleged call; Dr. Coomer did not make the comments Defendants falsely attribute to him; and Dr. Coomer did not take actions to subvert the presidential election as Defendants falsely allege." According to the lawsuit, which Coomer filed in Denver County District Court, Oltmann's description of him as a key figure in the anti-Trump plot that supposedly denied the president his rightful victory provoked a torrent of abuse and death threats.
Some of the social media posts about Coomer, such as a November 17 tweet by Eric Trump, have included his photograph as well as his name. Coomer "was forced to flee his home in response to the credible threats he has been receiving and continues to receive," the complaint says. "He has had to sever ties with friends and family members in order to stay in seclusion." The complaint presents examples of the accusations and threats, including several from Oltmann himself.
"Eric Coomer, you are a traitor," Oltmann wrote on Parler earlier this month. "We are coming for you and your shitbag company. We are coming for Antifa and we are coming for your politician friends. Share this…share Eric's name…If they certify the electors today after this audit, we have an obligation to forcibly remove them all. This is not a drill, our country is not their evil playground. God is at the wheel, but we are the warriors that must do the work of men to repel evil. These people are evil, and they are liars, cheats and thieves out to take what they did not earn or deserve. Where will you stand?"
Oltmann made it clear he had in mind more than angry social media posts. "Now it's time we fight," he said. "And when I [say] fight I don't mean yelling it's not fair. I mean we fight these communist, marxist lying shitbags. That means Eric Coomer never has peace and we smash each and every voting machine in every state that uses them. We will not be silenced by a bunch of BLM and Antifa communist asshats. It's time we take back our America by any and all means necessary."
Inspired by Oltmann's charges, the lawsuit says, some Trump supporters have suggested that Coomer deserves to die. "If this man disenfranchised people of their votes," a Reddit commenter said in response to a post about Coomer that included his picture, "he deserves worse than life in prison." Another commenter called the photo of Coomer "a good mug for USA's Top 10 Terrorist list," adding, "Wanted DEAD or ALIVE." Another aggrieved Trump supporter declared, "This man will be dead within 2 weeks."
Some Trump fans were more direct. Coomer "began to receive threatening text messages from unknown out-of-state numbers sent directly to his cell phone in Colorado," the complaint says. Among them:
"We are already watching you. Come clean and you will live."
"What is the penalty for TREASON?"
"FUCK ANTIFA, FUCK ANTIFA, FUCK ANTIFA, FUCK ANTIFA, FUCK ANTIFA, FUCK ANTIFA. Does that chant sound familiar. PB [Proud Boys, presumably] have you and there is nowhere you can run."
Powell and Giuliani have helped stir up this vitriol. During a bizarre November 19 press conference, Powell claimed that Coomer—whom she tied to Smartmatic, a different company that also figures in the baroque conspiracy she blames for Trump's defeat—"is on the web as being recorded in a conversation with antifa members, saying that he had the election rigged for Mr. Biden, nothing to worry about here, and he was going to, they were going to f— Trump."
Speaking at the same press conference, Giuliani reinforced Powell's accusation, describing "the Coomer character" as "close to antifa" and "a vicious, vicious
man" who "wrote horrible things about the president." Giuliani was referring to criticism of Trump that Coomer says he posted on "a private Facebook page" that he "shared with approximately 300 friends." There is nothing illegal about criticizing the president, of course, and it hardly counts as evidence of antifa sympathies, let alone criminal activity aimed at stealing an election. Yet Giuliani conflated all three things.
"He specifically says that they are going to fix this election," Giuliani said. "I don't know what you need to wake up, to do your job, and inform the American people, whether you like it or not, of the things they need to know. This is real. It is not made up."
A good question, especially in the context of a defamation lawsuit, is how Giuliani knew the story implicating Coomer in Trump's defeat was "not made up." At the press conference and in a Newsmax interview the next day, Powell claimed the purported antifa conference call had been recorded. Yet Oltmann himself says that is not true. According to him, the supposed quotations he has used, which are rendered somewhat differently in various accounts of the conference call, reflect his rough recollection of what was said.
You might wonder why Oltmann didn't record the call, which would have been perfectly legal in Colorado. You might wonder why Oltmann can't seem to recall exactly when this momentous event occurred, saying only that it happened in late September or early October. You might wonder how Oltmann knew that "Dominion" was Dominion Voting Systems or that "Eric" was Eric Coomer. You might wonder why Oltmann, who presents this alleged conversation as crucial evidence of a secret plot to subvert the presidential election, did not bring it to anyone's attention until after Trump lost his bid for a second term. You might wonder whether someone involved in such a plot would talk about it openly before the election, just for the pleasure of bragging, or whether his confident assertion of Trump's defeat would, in real life, be followed by an evil laugh in the manner of a James Bond villain.
Powell and Giuliani did not wonder any of those things. Apparently, neither did The Gateway Pundit's James Hoft, Newmax's Howie Carr, OANN White House correspondent Chanel Rion, blogger Michelle Malkin, or radio host Eric Metaxas, all of whom amplified Oltmann's claims. Coomer's lawsuit names Hoft, Newsmax, OANN, Rion, Malkin, and Metaxas as defendants, along with Oltmann, Powell, Giuliani, and the Trump campaign.
Coomer, who says the promotion of Oltmann's allegations caused "harm to his reputation, emotional distress, stress, anxiety, lost earnings, and other pecuniary loss," is seeking an injunction ordering the defendants to cut it out. He also wants them to retract their statements, which he says have no basis in fact. And he asks for "actual and special damages against Defendants in an amount to be proven at trial."
Although Coomer was not well-known until Oltmann and other Trump supporters started accusing him of treasonous election fraud, he argues that the defendants' actions would in any case meet the standard for defamation lawsuits involving public figures:
Defendants published these statements with actual malice. Defendants knew or had reason to know that these statements were false and published their statements with knowledge or reckless disregard of their falsity. Defendants failed to contact and question obvious available sources for corroboration; disregarded reliable sources refuting their claims; had no credible bases for the false allegations made; fabricated specific allegations; treated speculation and innuendo as evidence; and published their allegations in a manner calculated to create a false inference. Their allegations were inherently improbable, derived from unreliable sources, and unsupported by evidence. Defendants preconceived a conspiracy and then set out to establish that conspiracy to further their own ends.
One issue raised by Coomer's lawsuit is whether Giuliani and Powell are shielded by the litigation privilege that applies to statements made by lawyers in the course of legal proceedings. "The litigation privilege doesn't cover all out-of-court statements," says UCLA law professor Eugene Volokh, a First Amendment specialist, although "in many states the fair report privilege does cover lawyers' public discussion of claims made in their lawsuits." The extent of that privilege varies from state to state, Volokh says, and it is not yet clear which state's standard would apply to Coomer's lawsuit, since "this whole 'choice of law' question is itself quite complicated."
Dominion itself has demanded a retraction from Powell and threatened to sue her if one is not forthcoming. Michigan attorney Jonathan Schwartz, who specializes in First Amendment and media law, suggests that Powell and Giuliani have reason to be worried.
While an attorney who makes defamatory statements in the context of litigation is protected from civil liability, Schwartz told Law & Crime, "a lawyer who makes false allegations which are harmful to another party outside the courtroom, especially a business, is facing a different situation entirely, even if there is an ongoing case. Lawsuits can absolutely be filed against attorneys for defamatory statements made in press conferences and media appearances, or even for sending a copy of a frivolous complaint to a non-party. If Smartmatic and Dominion can show damages stemming from defamatory comments made by opposing attorneys outside of formal litigation, there is significant potential exposure, ranging from defamation to interference with business claims."
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