A federal judge in Washington, D.C., this week allowed Dominion Voting Systems to proceed with its defamation lawsuits against Rudy Giuliani, former Trump campaign lawyer Sidney Powell, and MyPillow CEO Mike Lindell, all of whom repeatedly and publicly alleged that the company was involved in a massive criminal conspiracy that delivered a phony election victory to President Joe Biden last year. U.S. District Judge Carl Nichols, a Trump appointee, rejected Powell's argument that her claims about Dominion were not actionable because they did not qualify as statements of fact. He also rejected the argument, offered by Lindell as well as Powell, that Dominion had failed to allege "actual malice."
Although Nichols' decision is bad news for these three defendants, all of them can still ultimately prevail by proving that what they said about Dominion was true. Giuliani, Powell, and Lindell have claimed over and over again that they have the requisite evidence. They failed to produce it in post-election litigation and in the many public appearances where they accused Dominion of helping Biden steal the election. But now that Dominion is seeking $1.3 billion in compensatory and punitive damages from them, they have a pretty strong personal and financial incentive to finally reveal the facts underlying their assertion that the company switched Trump votes to Biden votes in what Lindell described as the "biggest election fraud in world history."
To avoid the burden of proving her allegations, Powell argued that "no reasonable person" would have understood her claims as "statements of fact." Rather, she said, they were either political "opinions" that cannot be demonstrably wrong or "legal theories" offered "in the context of pending and impending litigation." More recently, Powell undermined her own defense by insisting that if the case went to trial she would "expose what really happened," adding that "we meant what we said, and we have the evidence to back it up."
Nichols makes short work of Powell's claim that her statements about Dominion cannot be actionable. While the First Amendment allows for "some level of 'imaginative expression' or 'rhetorical hyperbole' in our public debate," he says, "there is no blanket immunity for statements that are 'political' in nature….It is simply not the law that provably false statements cannot be actionable if made in the context of an election." Powell likewise "cannot shield herself from liability for her widely disseminated out-of-court statements by casting them as protected statements about in-court litigation; an attorney's out-of-court statements to the public can be actionable, even if those statements concern contemplated or ongoing litigation."
The question at this stage, Nichols says, is "whether a reasonable juror could conclude that Powell's statements expressed or implied a verifiably false fact about Dominion." The answer, he concludes, is clearly yes.
Powell repeatedly claimed, for example, that she had a video in which Dominion's founder "admits he can change a million votes, no problem at all." She promised to share that video but never did. Dominion says that's because "it doesn't exist." This certainly seems like an issue that could be easily resolved. "These statements are either true or not," Nichols notes. "Either Powell has a video depicting the founder of Dominion saying he can 'change a million votes,' or she does not."
Powell said she had "evidence" that Dominion "was created to produce altered voting results in Venezuela for Hugo Chávez." Again, Nichols says, "this statement is either true or it is not; either Dominion was created to produce altered voting results in Venezuela for Hugo Chávez or (as Dominion alleges) it was not."
Nichols cites a couple more examples: "Powell has stated publicly that Dominion 'flipped,' 'weighted,' and 'injected' votes during the 2020 election; either Dominion did so or (as Dominion alleges) it did not. Powell has claimed that state officials received kickbacks in exchange for using Dominion machines; either state officials received such kickbacks or (as Dominion alleges) they did not. All of these statements, and many others alleged in Dominion's Complaint, 'expressed or implied a verifiably false fact' about Dominion."
Powell says her statements were based on "underlying facts" that she has disclosed. But "Dominion alleges that for many of Powell's statements, the evidence to which she points is either false or provides no factual basis for what she said."
Powell and Lindell both argued that Dominion's complaint failed to meet the "actual malice" standard that applies to defamation claims by public figures. That standard requires showing that the defendants either lied or made false statements with "reckless disregard" to whether they were true. Reckless disregard can be established by showing that the defendants "in fact entertained serious doubts" about the truth of their claims or acted with "a high degree of awareness" that the claims were probably false. The "serious doubt" standard "requires a showing of subjective doubts by the defendant."
Assuming Dominion can prove its claims, Nichols says, it can clear that "high bar." The company argues "not only that Powell's claims are so inherently improbable that only a reckless person could have believed them, but also that she deliberately ignored the truth in favor of relying on facially unreliable sources, intentionally lied about and fabricated evidence to support a preconceived narrative about election fraud, and did so to raise her own public profile and make a profit." Dominion "alleges that Powell repeatedly solicited donations to her law firm and [Defending the Republic, an organization she runs] while making her claims; that President Trump pardoned her client, Michael Flynn, on the same day she filed her first lawsuit challenging the results of the 2020 election; and that in November 2020, 'someone purchased the web domain sidneypowellforpresident.com.'"
While Powell's alleged motives are not decisive, Dominion argues that, in her eagerness to validate her "preconceived narrative about election fraud," she relied on patently unreliable evidence. In addition to the apparently nonexistent video, Nichols notes these examples cited by Dominion:
• As evidence of election fraud supposedly perpetrated by Dominion, Powell presented an election security expert's critical comments about "a decades-old machine" that was "not designed by Dominion" and was "not used in the 2020 election in any of the swing states" where Powell claimed the company had helped manufacture Biden votes.
• Powell cited a certificate from Georgia's secretary of state that she "doctored" to "make it appear as though Georgia officials purchased Dominion machines and software on a rushed timeline."
• Powell presented a declaration from a "military intelligence expert" who later admitted he had never worked in military intelligence.
• Powell offered affidavits from two anonymous Venezuelans that Dominion says "bear distinct signs of having been drafted by Powell herself."
• Powell presented a report from an "expert" whom a judge had ordered to "pay more than $25,000 after finding that she violated consumer protection laws by misspending money she raised and soliciting donations while misrepresenting her experience and education."
• Another "expert" had been rejected by a federal court because of his "sheer unreliability."
• Powell offered a statement from an "expert" who "declared, under penalty of perjury, that there was a pattern of improbable vote reporting in a Michigan county that does not exist."
• Another affidavit came from an "expert" who "was found to have provided 'materially false information' in support of his claims of vote manipulation after referencing locations in Minnesota when alleging voter fraud in Michigan." The same "expert," Nichols notes, "has also publicly claimed that George Soros, President George H.W. Bush's father, the Muslim Brotherhood, and 'leftists' helped form the 'Deep State' in Nazi Germany in the 1930s—which would have been a remarkable feat for Soros, who was born in 1930."
Dominion, Nichols concludes, "has adequately alleged that Powell made her claims knowing that they were false, or at least with serious doubts as to their truthfulness." He reaches the same conclusion regarding Lindell, who echoed Powell's charges and similarly claimed he had "evidence" to back them up. Dominion argues that Lindell, an ardent Trump supporter, took advantage of the stolen-election story to promote his company.
Unlike Powell, Giuliani, who is Trump's personal lawyer and also represented the Trump campaign, did not argue that his allegations about Dominion were political opinions or "legal theories" immune from defamation claims. Nor did he join Powell and Lindell in arguing that Dominion's allegations failed to satisfy the "actual malice" standard.
But Giuliani, like Powell and Lindell, insisted he had "conclusive proof" that Dominion helped Biden steal the election, a claim he said was "easily provable." Soon he will have yet another chance to present his evidence. He probably should not mention that a New York appeals court suspended his license to practice law in that state because of his "demonstrably false and misleading statements" about election fraud. Powell's case likewise is not helped by the fact that a federal judge in Michigan who was considering sanctions against her said she had presented "fantastical claims" without even "minimal vetting."
A CBS News poll conducted last month found that 69 percent of Republicans still believed there was "widespread voter fraud and irregularities" in the 2020 election. Among the Republicans who believed that, three-quarters said "a lot" of the fraud happened "with voting machines and equipment that were manipulated," which is the essence of the story that Powell, Giuliani, and Lindell, along with Trump himself, have been telling since Election Day. If they are right, they should have no problem beating Dominion in court.