Defamation

Judge Denies Powell, Giuliani and My Pillow Motions to Dismiss Dominion's Defamation Suit

Another bad day for the Kraken team of lawyers.

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U.S. Dominion's defamation suits against Kraken lawyer Sidney Powell, Rudy Giuliani, and My Pillow CEO Mike Lindell will proceed. Yesterday, Judge Carl Nichols of the U.S. District Court in D.C. denied the defendants' motions to dismiss in their entirety in a combined opinion.

Each of the different defendants made slightly different claims, but Judge Nichols rejected them all. Powell, for example, tried to argue that her allegations about Dominion voting machines were simply matters of opinion, and therefore could not be defamatory. No dice, Judge Nichols explained.

Powell contends that no reasonable person could conclude that her statements were statements of fact because they "concern the 2020 presidential election, which wa both bitter and controversial," Powell's Mot. at 38, and were made "as an attorney-advocate for [Powell's] preferred candidate and in support of her legal and political positions," id. at 39. As an initial matter, there is no blanket immunity for statements that are "political" in nature: as the Court of Appeals has put it, the fact that statements were made in a "political 'context' does not indiscriminately immunize every statement contained therein." Weyrich, 235 F.3d at 626. It is true that courts recognize the value in some level of "imaginative expression" or "rhetorical hyperbole" in our public debate. Milkovich, 497 U.S. at 2. But it is simply not the law that provably false statements cannot be actionable if made in the context of an election.

Powell similarly argues that her statements were protected commentary about other lawsuits. But Powell 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. Messina v. Krakower, 439 F.3d 755, 761–62 (D.C. Cir. 2006) (recognizing no privilege when statement is published to persons not having an interest [in] or connection to the litigation") . . .

The question, then, is whether a reasonable juror could conclude that Powell's statements expressed or implied a verifiably false fact about Dominion. Milkovich, 497 U.S. at 19–20. This is not a close call. To take one example, Powell has stated publicly that she has "evidence from [the] mouth of the guy who founded [Dominion] admit[ting that] he can change a million votes, no problem at all." Powell Compl. ¶ 181(j). She told audiences that she would "tweet out the video." Id. These statements are either true or not; either Powell has a video depicting the founder of Dominion saying he can "change a million votes," or she does not.

Judge Nichols also rejected defendant's claims that Dominion failed to adequately plead "actual malice" and the efforts to challenge venue and jurisdiction. The opinion is a thorough drubbing. (And, for those who care about such things, Nichols is a Trump appointee.)

We will see more of these suits. Just this week Dominion also filed defamation claims against Newsmax and One America News Network (OANN). It has also sued Fox News.

NEXT: "This Is No Way to Rule a Country"

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  1. Too bad that these people don’t have anywhere near enough money to be able to adequately compensate Dominion for the loss it incurred.

    1. Eh, cart before horse.

      Dominion has yet to prove it has been defamed by Messrs. Powell or Pillow or Julie-Annie.

      Dominion has yet to prove it has sustained damages.

      All it has done is survive a motion to dismiss.

      1. Yes, I’m sure they’re going to struggle to prove that it is bad for business being accused of manipulating elections.

        As for proving defamation, like the man said: She either has that video or she doesn’t.

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      2. Again what happened to public figures? What happened to subject of public interest? Those seem to apply only to helping Commie filth. The lawyer profession is totally biased and worthless.

        1. What happened to a sense of honesty? What happened to saying that our candidate lost, we wish it were not the case but it is? The public gave these people and their candidate plenty of time to challenge the results and instead we got nothing but lies. What have we learned that there was no evidence just an attempt to creats a narrative to justify a non-constitutional appointment of a loser. These people and institutions are not public figures, they are public menaces. Pulling people apart instead of pulling us together.

      3. There is no question Dominion has what it needs to prove not only defamation but also damages. They sell voting equipment, and their sales have been definitely impacted.

        Their salespeople know when they win business and why and when they lose business and why. And it is pretty clear they are prepared to present that evidence in court.

        And there is also the issue of one of their top employees (forget the name) having to go into hiding because rabid MAGA types were making lethal threats.

        1. Powell’s defense can be American politics is tribal and the traditional tribe worships #fakenews and #fakenews is real news to the traditional tribe. So the traditional tribe still believes Saddam had WMDs and was helping AQ so at some point Fox News will turn #fakenews into real news and so it is no longer false…that’s how Orwellian propaganda works.

          1. How is that a defense? That just seems to make it worse, because it’s the opposite of the “no sane person would believe me” defense.

        2. I believe there was a county in Ohio that already rescinded an order for Dominion machines because their idiots, sorry, constituents believe that they are vulnerable.

        3. You forget the most important parts. They don’t just have to prove that their sales were impacted.

          1: The accusations must be false
          2: The defamers must have known they were false or were deliberately ignoring the truth.

          Being mistaken, being lied to, and even lying to yourself are defenses against defamation for a public figure. There’s a reason that Sullivan is such a high burden to climb.

          1. In case you missed it, either in the judge’s ruling or the comment by Maritned above,

            1: She claims to have a video.
            2: Either she has it or she doesn’t.
            3: If she doesn’t, she was lying i.e. making knowingly false statements. QED.

            Now, it may happen that she actually does have this alleged video. But that’s not the smart way to bet.

          2. Somehow I doubt that it will be all that hard for Dominion to prove that they were formed “by three Venezuelans” “in order to fix elections.” Or that Powell was lying when she talked about how she could “hardly wait to put forth all the evidence we’ve collected on Dominion, starting with the fact it was created to produce altered voting results in Venezuela for Hugo Chávez and then shipped internationally to manipulate votes for purchase in other countries[,] including this one.” Seeing as it wasn’t, and she hasn’t produced any of her promised evidence that it was.

    2. I thought Mike Pillow had a couple hundred million. Maybe not enough to cover a full judgment in this case, but definitely worth pursuing.

    3. There is always bankruptcy. It worked for the former President. Settle your debts for pennies on the dollar.

      1. I expect a few more bankruptcies in the Trump family future — beyond the moral bankruptcies.

        1. The great thing about our capitalist system is that if your rich enough you never have to pay off their debt.

  2. Perhaps this is all part of the plan. Now the Kraken team can prove the truth of what they asserted 😉

    1. They already have at least twice, and once on the stand and under oath, and asked where’s the beef, they testified, eh, not much happening.

      I’m a fan of giving people the benefit of the doubt and people getting their day in court, instead of mere talking head-space. Let’s see…

      1. They’ve proved what at least twice?

        That the Dominion machines are rigged? I don’t think so.

  3. And the hits keep coming!

    The cyber expert on the “red team” hired by MyPillow CEO Mike Lindell now says the key data underpinning the theory that China hacked the 2020 election unveiled at the Cyber Symposium is illegitimate.

    https://www.washingtontimes.com/news/2021/aug/11/mike-lindells-lead-cyber-expert-says-they-cant-pro/

    1. Another recent hit is Guiliani and his attorney telling the FBI that it’s perfectly OK to lie, and that he is under no obligation to tell the truth.

      1. Because the FBI are the attack dogs of the Democrat Party and of lawyer rent seeking, there is an affirmative patriotic duty to lie to those scumbags. They are worthless, coffee slurping, donut chomping, secretary chatting, slow shuffling, federal workers, doing nothing about the 100 million internet federal crimes a year.

        1. “… there is an affirmative patriotic duty to lie…”

          I give you the current state of what passes for “conservative” these days.

          Now, back in the mute box, David.

          1. Deception is essential to defeating the enemy.

        2. They weren’t talking about lying to the FBI. They were talking to the FBI about lying to the public during an election campaign. Is the voting public the enemy? Is it they that your side should lie to in order to win?

  4. Powell is trying to use the “Fox News Defense” i.e. “no reasonable person would ever believe the bullshit we’re saying”.

    https://www.businessinsider.com/fox-news-karen-mcdougal-case-tucker-carlson-2020-9

    It worked for Tucker Carlson at the motion to dismiss phase – not sure why it didn’t work for Powell at that phase. Perhaps Fox can simply afford better attorneys.

  5. I really hope this one goes to trial and not some under-seal-no-admission-of-fault out-of-court settlement. With Judge Ito-level exposure.

    The defense is obviously going to play the 1st Amendment thing to the hilt because it is all they got. They have the right to lie. I want to see how they can argue that without undermining all their election fraud arguments.

    If they can get the defendants on the witness stand it would be totally epic. Can anyone say how likely that would be?

    1. It’ll probably be argued just like Alex Jones and Fox News where they say “no reasonable person would think we were telling the truth.” Then they continue to lie and spin everything under the sun with their listeners/viewers none the wiser.

      1. You’re thinking of Rachel Maddow and MSNBC actually.

        Strange that you got it wrong.

        1. No, he’s citing actual arguments made in court by Fox and Jones.

        2. “You’re thinking of Rachel Maddow and MSNBC actually. Strange that you got it wrong.”

          Open wider, bigoted clingers. Plenty more progress will be shoved down your whining, powerless, reprehensible throats — right up to the day you are replaced.

          Good luck with hoping for Trump, Taylor Greene, Giuliani, Gosar, Volokh, Reynolds, Eastman, Hannity, Carlson, Gorsuch, Kavanaugh, Alito, Thomas, Jordan, McConnell, or any of the others to prevent what is coming to you.

    2. I really hope this one goes to trial and not some under-seal-no-admission-of-fault out-of-court settlement.

      None of the defendants have the kind of money that Dominion would want for that. Dominion wants an admission they were lying or a judicial finding they were lying. Not a secret token payment.

      1. None of the defendants have the kind of money that Dominion would want for that.

        How much do you figure they would want (and could actually justify outside the context of shock-and-awe complaints for media consumption)? Lindell is supposedly worth $3-400MM, and Dominion’s revenue has run about $40MM a year for the past several years — and certainly hasn’t gone to zero or even close over this kerfluffle. That’s one hell of a damages theory.

        1. There could be punitive damages too, no? But I don’t know which state law is being invoked here and how that would allow for punitive or not.

          1. The Lindell complaint asks for punitive damages, but only in the amount of the alleged actual damages (i.e., the $1.3B is split 50/50). I’d imagine there’s a de facto limit on the proportion of actual to punitive, and they’re shooting in that range. And to get punitives of any amount, they’d have to show actual malice by the speakers — which is not easy by design.

            In any event, about $650MM of the ask is alleged actual damages, which leaves my above question solidly in play.

  6. Between this and Nunes (who blind squirreled his defamation claim against the Post), Nichols might be soon be in running for the appellation of Long -Suffering Federal Judge now that discovery is gonna happen.

  7. Has Prof. Volokh ceded the Trump Election Litigation: Elite Strike Force beat to Prof. Adler? The ostensible championship of (and interest in) free speech becomes more selective and more curious in some particularly partisan corners . . .

    (The proprietor still seems to find plenty of time to mention cases in which right-wingers — Rep. Cow-Milking Degree, Mr. Email Inventor — are the plaintiffs.)

    Carry on, Conspirators.

  8. Didn’t the Left do the exact same thing with Diebold a couple elections ago? Why was it completely fine then but its beyond the pale and punishable now with Dominion? Are people’s memories completely shot?

    1. No, not “the exact same thing” which would have been making stuff up out of whole cloth and filing numerous meritless lawsuits.

      Diebold’s voting machines were rightly criticized for failing to properly protect an audit trail, which Diebold itself admitted. i.e. it was demonstrated that it was possible to change votes without leaving evidence.

      The software was very insecure, as was demonstrated multiple times by security experts, so much so that Diebold settled a lawsuit by the state of California for $2.6M.

      The clear difference here is that there was actual *evidence* that Diebold machines were problematic, and the company *admitted* to those flaws. It’s not the wild-eyed fantasy that is the Kraken.

      1. The software was very insecure, as was demonstrated multiple times by security experts, so much so that Diebold settled a lawsuit by the state of California for $2.6M.

        The clear difference here is that there was actual *evidence* that Diebold machines were problematic, and the company *admitted* to those flaws.

        So given all that, it’s just a touch inconvenient that Dominion is the one that cheerfully slurped up all those “problematic” Diebold assets, isn’t it?

        Let me guess — all betters now. Because salamanders.

        1. Note the lack of lawsuits, lack of John Kerry holding rallies declaring Bush was illegitimate, and lack of large conspiracy theories that Kerry was secretly President.

          1. Funny how that works. The loser concedes to the winner. Great system, too bad we dropped it in 2020.

          2. Note the lack of lawsuits, lack of John Kerry holding rallies declaring Bush was illegitimate, and lack of large conspiracy theories that Kerry was secretly President.

            Better yet, note the lack of you engaging with the point I made and instead throwing your typical handfuls of whaddabout confetti.

        2. Salamanders make many things better.

          Giuliani, Powell, and Trump’s other ‘election fraud’ clowns are about to experience their turn in the salamander.

        3. So given all that, it’s just a touch inconvenient that Dominion is the one that cheerfully slurped up all those “problematic” Diebold assets, isn’t it?

          Um, no, it isn’t. Dominion isn’t using Diebold BMDs.

          1. Whatever a BMD is, your theory then is that instead of Dominion building their own equipment they acquired the Diebold line and then redesigned every last scrap of it? That could explain why they’re not doing particularly well.

            1. A better question is what is your theory that would make the point even relevant?

    2. Probably because Diebold never chose to sue. To my recollection no suit occurred. It is also true that the Diebold was a pretty small matter and I don’t think there was every and election challenge based on the Diebold machine. The people and institutions being sued here have alleged that the Dominion machines changed the vote and have made the accusations with no proof.

      1. The only major evidence against Diebold that I can recall is that where it was used extensively in a key state (I forget which) the official election results differed from the exit polls by statistically significant amounts. Always in favor of Bush.

        Everywhere else exit polls were much more accurate.

        Since there was no audit trail to be audited there was no way to mount a court contest that had any chance of winning. Even if you got a sample unit and managed to black-box test it to show that it was altering votes it would be too difficult a case to show.

        So if systemic fraud was committed by Diebold they pretty much got away with it. But awareness of these facts I am sure has driven county election officials everywhere to make sure they have auditable audit trails in the process. Like Maricopa County in AZ.

        1. The only major evidence against Diebold that I can recall is that where it was used extensively in a key state (I forget which) the official election results differed from the exit polls by statistically significant amounts. Always in favor of Bush.

          It was Ohio. With the claims of fraud led by current anti-vax loon RFKJr.

  9. Discovery against Dominion will be EPIC!

    1. I suspect in our new kangaroo justice system that any talk of election fraud is automatically false no discovery necessary. Just take Dominion’s word for it.

      Just like we don’t discuss (shh Volokh don’t ever discuss it) the indefinite detention of the J6 protestors and the DOJ’s efforts to not disclose evidence to the defense. Doesn’t seem like you can have it both ways but I guess because “Trump” its OK. Volokh are you ever going to discuss this?

      1. Probably as EPIC as Mike Lindell’s three-day cybersymposium/mid-market-sheet-and-towel-discount extravaganza.

        Discovery seems most likely to position this case for punitive damages.

    2. “REQUEST FOR PRODUCTION:
      – All documents relating to the three guys from Venezuela who founded Plaintiff;”

      Sure, that’ll go great!

  10. I don’t care about the Dominion machines or the Trumpsters that criticize them, but I DO care about the statement that “Powell, for example, TRIED TO ARGUE that her allegations about Dominion voting machines were simply matters of opinion, and therefore could not be defamatory.” She didn’t “try’ to argue that; she DID argue that, and the court rejected her argument. Back when I was practicing law I had to school the first year associates about this, year after year. If anyone reading this thinks that saying your adversary “tries to argue” something is effective advocacy, my advice is: Don’t try it.

  11. Nichols may be a TP judge, but he’s also a no nonsense straight shooter guy compared to some of the others.

    And it’s like not this is a case that even involves TP directly or anyone currently in his inner circle. My understanding was the Kraken klique fell out of favor with him a while back.

  12. So Dominion has turned over logs and their SW and its been analyzed and concluded that what was claimed could not have happened?

    Because that would have to proven to support defamation

    1. “Because that would have to proven to support defamation”

      That is a profoundly stupid comment even by customary Volokh Conspiracy fan standards.

      No wonder the good guys don’t get much practical resistance in the culture war.

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