On Friday Dominion Voting Systems filed a defamation lawsuit against Sidney Powell, her law firm and a company, Defending the Republic, Inc. that she set up to raise money for her legal efforts to challenge the U.S. presidential election of 2020. I have read through the Complaint (a link to which can be found below on the Washington Post website) which runs to 124 pages. While excessively detailed for pleadings it is a dramatic narrative.
I have thought often about the use of defamation actions and other judicial proceedings to establish the facts of history. Where historians are reliant on documents and interviews there is no testing of evidence in the way cross-examinations in court can reveal the strengths and weaknesses of statements. My next two posts will take a look at a number of examples of defamation actions involving historic events.
The reason defamation actions can set the facts of history involves the nature of defamation.
The opening sentence of the Complaint sets out Dominion’s position:
This defamation action arises from statements made by Sidney Powell, who— acting in concert with allies and media outlets determined to promote a false preconceived narrative about the 2020 election—caused unprecedented harm.
The classic, though dangerous defence, is for Powell to assert her narrative was true. I expect she will claim truth. Powell and her supporters have alleged they never had a chance to present their evidence in a trial. Now they will have that opportunity.
Thus the action is set up for a court to determine what is the truth.
Defendants who realize they are wrong may offer apologies in an effort to reduce or eliminate damages.
I cannot see Powell admitting the error of her ways.
Powell clearly loves media attention. She leapt into the national spotlight with incredible allegations after the election. The Complaint sets out her wild claims and Dominion systematic refutation. While I am well aware of the danger of relying on pleadings in a lawsuit Dominion’s statements are compelling.
A simple example of her unfounded claims involves the history of Dominion:
Far from being created in Venezuela to rig elections for a now-deceased Venezuelan dictator, Dominion was founded in Toronto for the purpose of creating a fully auditable paper-based vote system that would empower people with disabilities to vote independently on verifiable paper ballots.
Until 2018 Dominion was a Canadian owned corporation.
When challenged during the past two months Powell has, in the words of the Complaint, “doubled down” on her accusations.
After Dominon asked that she retract her false claims she responded publicly by insisting she had the evidence and that the Dominion companies were fraud masters.
Dominion upped the stakes by boldly stating Powell has deliberately made allegations she knows are false. They are asserting actual malice. They have strong evidence.
Among her claims are that Dominion rigged the presidential election and bribed Georgia election officials.
With regard to Georgia Dominion states:
The voter verified paper ballots are the hard evidence that can be easily used to verify the accuracy of the Dominion machine counts. If Dominion or anyone else had rigged the election by manipulating the vote counts in the Dominion machines—whether by “weighting” votes, trashing votes, adding votes, or otherwise—the number of paper ballots that were verified and cast by voters would not match the machine counts. In fact, independent 100% hand audits and recounts of paper ballots have repeatedly verified the accuracy of the vote counts from Dominion machines.
Powell bewilderingly claims there were no full hand counts when the evidence from the state government is that there was a state wide hand count covering every vote.
I am very interested in seeing who Powell puts forward as witnesses. The witnesses who filed reports and affidavits in her lawsuits have been rejected in scathing language by judges.
The “Spyder” was one such witness. The Complaint states:
For example, Powell sponsored the declaration of an anonymous “military intelligence expert” code-named “Spyder,” who has since been identified as Josh Merritt. Powell’s “military intelligence expert” has now admitted that he never actually worked in military intelligence and that the declaration Powell’s team wrote for him to sign is “misleading” and he “was trying to backtrack” on it.
She subsequently re-stated the same information through an anonymous source.
Dominion has offered a convincing example of Powell filing “doctored” evidence in an election court action with regard to a Georgia government certificate that was dated and signed unlike the copy she put before the court.
It can be a challenge in defamation actions to know who received the slanderous information. Powell and Trump eliminated that issue personally by tweeting video of press conferences to their 1.2 million and 88 million followers respectively. The slander was seen round the world. (Each has now been permanently suspended by Twitter.)
Dominion can show that it is pervasive among the Republicans of the United States that Dominion is synonymous with fraud. Its employees have been harassed and received threats, including death threats. Dominion states it has spent over $565,000 for private security for its employees. At least one American politician has sought to ban the use of Dominion machines.
Dominion projects lost profit of over $200 million during the next 5 years and that “the viral disinformation campaign has irreparably damaged Dominion’s reputation and destroyed the resale value of a business that was worth between $450 million and $500 million before the viral disinformation campaign”. Its claim for compensatory damages of $651,735,000 is credible. Its additional claim for $651,735,000 in punitive damages is plausible if it gets substantial compensatory damages.
It is significant that the action was commenced in the United States Federal Court in Washington, D.C. I expect her frequent trips there, staying in D.C. for much of the last few months and at least one infamous press conference (think of the melting Giuliani) will justify proceeding in D.C.
In considering where to have a jury action I expect Dominion looked carefully at D.C.’s population being 47% of the population black. I can understand Dominion’s preference for D.C. rather than Texas where Powell has her office.
As well I see this action as setting up a series of defamation actions in D.C. Come January 21, the day after Biden’s inauguration I expect Dominion will also be suing former President Trump in D.C. In the opening sentence quoted above Dominion refers to her allies. Dominion has given Trump, Giuliani and others the same formal notice letter they sent to Powell. At that unforgettable press conference she was introduced as a part of Trump’s “elite strike force team”. While she was soon cut from the team she remained in contact with Trump. (I will leave aside for this post the probability of actions against such media as Fox News.)
No matter how successful her fundraising Powell has no ability to pay hundreds of millions to more than a billion dollars in damages. There is a potential individual defendant with those resources. Trump has claimed billionaire status for decades. His net worth may actually be revealed if there is judgment against him.
In one of the great potential ironies of history there is another source of funds controlled by Trump that could be used to pay a judgment. He has somewhere between $250 million to $500 million donated by his followers for legal costs related to fighting the election. They are actually available for Trump to use as he chooses. It would be fitting justice if the funds he raised to contest the election were used to pay for a judgment upholding the results of the election.
Thank you, Bill, for laying this out so clearly. It really will be interesting to see how this pans out. I'm no legal expert at all, but it seems to me that Dominion has a very strong case, and I could certainly see the decision going their way. I'm also thinking about the fact that feelings are running very high right now. It will be interesting to see how both sides take account of that. I look forward to your next posts on this.ReplyDelete
Margot: Thanks for the comment. I wish more Americans would measure their words like yourself. It is hard for me to understand why there has not been more evaluation of statements. So many are ready to just accept what they want to hear. I expect Dominion to press hard. The stakes are so high for the company.ReplyDelete
This is a very interesting post, Bill. I don't have much understanding of legal issues, so it was a help to see your analysis. I hope that Dominion has success in the lawsuit.ReplyDelete
TracyK: Thanks for the comment. I am awaiting Powell's response. Trump and his lawyers dismissed their own cases in Georgia rather than present evidence on the elections.Delete
I so wish that millions of people in this country based their views on facts, logic and reason. It's a big problem for those who refuse to believe the real statistics, the votes. I just don't get it. I hope Dominion prevails, as I hope the rational people in Congress prevail, those whose actions are based on truth.ReplyDelete
Kathy D.: Thanks for the comment. It is striking how many Americans will only believe statements are true if they reflect their beliefs. I wonder how they function in their lives.Delete
Somehow, somewhere, some people are not taught to believe facts and reality. And these groups know how to get to these people and also capture their anger at all sorts of things.ReplyDelete
Now Congress members are afraid of others in Congress and are calling for more security in the Capitol. This is really worrisome.
Kathy D.: Thanks for the comment. You can dodge and dance but once sued you have to stand up and face the facts. Powell and now Giuliani have been able to spout off for months. Now they are facing the real consequences. I am hearing little from either of them about Dominion. I expect more court cases looming.ReplyDelete