I keep reading stories about Dominion or Smartmatic sending demand letters to their accusers and thinking, “This can’t possibly work.” Not because the companies haven’t been smeared but because it’s almost literally unimaginable in 2020 that a political actor would face meaningful consequences for smearing someone. This is the age of social media! We elected Trump, for God’s sake. America doesn’t “do” defamation anymore. You can tell any falsehood about a political enemy in a moment of anger and expect no consequences for yourself even if there are serious consequences for them.
We should all get out of that mindset, though. It’s pernicious, and it’s also not true. Dominion has retained a well-known defamation lawyer in Tom Clare, who won a million-dollar jury verdict connected to the Rolling Stone UVA frat-rape hoax. The company has presumably lost lots of business due to the claims circulating about vote-rigging, and even if it hasn’t, it’s destined to do so if it doesn’t act. The smears won’t stop until it becomes prohibitively expensive to push them. No appeal to decency will convince a conspiracy theorist to relent.
This can possibly work, in other words. The companies have every moral and financial reason to try. And it should go without saying that if they’re willing to submit to discovery against the likes of Sidney Powell and various media outlets, they’re completely certain that there was no election chicanery involving their software. Dominion and Smartmatic wouldn’t expose themselves this way if they had anything to hide.
The companies’ pursuit of their accusers is destined to be one of the most engrossing legal/political dramas of 2021. Especially since that pursuit now reportedly involves the Trump White House and the president’s personal lawyer, Rudy.
Through two well-known defamation attorneys, Dominion Voting Systems sent letters to [White House counsel Pat] Cipollone and Giuliani Tuesday, demanding Giuliani stop making “defamatory claims against Dominion” and ensure there is “no confusion about your obligation to preserve and retain all documents relating to Dominion and your smear campaign against the company.” The attorneys told Cipollone their preservation request is vast and includes conversations White House officials had with attorneys like Giuliani or Sidney Powell regarding Dominion…
Dominion is being represented by Tom Clare and Megan Meier from Clare Locke LLP, a law firm that specializes in defamation cases. In the letter to Giuliani, which was shown to CNN, the attorneys caution Giuliani that “litigation regarding these issues is imminent.”…
The letter to Cipollone similarly says that any communications between Trump and any White House employee with Powell, Giuliani, Ellis or Wood must also be retained.
Powell’s exposure in particular, I think, is why Giuliani has stressed in interviews lately that she’s not part of Trump’s legal team. Her accusations are so wild that reportedly even MAGA diehard Lou Dobbs “has raised questions about Powell’s claims to others.” Rudy’s problem is that she was part of the team when she made claims about Dominion during the famous press conference on November 19. And she’s been at the White House repeatedly over the past week, meeting at least once with Trump himself allegedly to discuss how to use executive power to seize voting machines for inspection or even about a “special counsel” appointment to investigate voter fraud.
In fact, offhand I’m not sure why Dominion couldn’t call Donald Trump himself to the stand on January 21 or thereafter to answer questions about his conversations with Powell regarding Dominion. Once Powell left his legal team, their chats were no longer covered by attorney-client privilege. And since she’s never worked for his administration, there’s no executive privilege that would shield their discussions. No wonder people like Cipollone don’t want her meeting with Trump.
There’s a *lot* of election-related litigation in the works right now and I don’t mean litigation by Rudy and Jenna Ellis aimed at overturning state voting results. Dominion has already sent demand letters to Powell and to Trump’s campaign, prompting a memo from the campaign’s top lawyer to staff to preserve all documents. Dominion’s security director has had to go into hiding due to threats against him and is now also suing the Trump campaign and various media figures over the accusations made against him. Michigan’s attorney general is seeking professional sanctions against Trump’s lawyers and Powell for filing dubious election lawsuits. And a judge in Delaware is considering whether to bar Lin Wood from representing Carter Page in a defamation suit there because his conduct in cases in Wisconsin and Georgia may violate Delaware’s code of professional conduct.
Rudy Giuliani tells Sean Spicer on Newsmax that Fox News won’t book him anymore because “if I say the word ‘fraud,’ I’m thrown off the network.” pic.twitter.com/mhfnAurvLp
— Aaron Rupar (@atrupar) December 21, 2020
If Rudy’s telling the truth about that, I assume it means that Fox is now so nervous about him potentially lapsing into casual slander live on the air that they won’t run the risk of having him on. This clip from Newsmax also made the rounds on Monday after Trump ally Mike Lindell started to ramble about Dominion and quickly got cut off by guest host Seb Gorka:
Host Seb Gorka cuts MyPillow guy Mike Lindell short after Lindell starts to push conspiracy theories about voting machines. (Under legal duress, Newsmax just had to run segments debunking its own lies about voting machines.) pic.twitter.com/smSo6aBbeB
— Aaron Rupar (@atrupar) December 22, 2020
The biggest problem for Clare and Dominion right now may be how to prioritize all of the lawsuits they’re working on. Presumably demands for a settlement will be made of some or all of the defendants, but not all of them will comply. Maybe the Trump campaign would agree to pay an undisclosed amount just to put this behind them but Powell surely never will. Her entire currency on the right is due to her willingness to “fight” in outlandish ways. I think she’d rather lose a mega-bucks judgment than retract anything she’s said. Imagine the many feverish tweets about the “judicial deep state” if she ends up having to pay the piper.
Exit quotation: “For the moment, Mr. Trump has told advisers he’s willing to stop listening to Sidney Powell, the lawyer who has appealed to him by peddling a conspiracy theory about the election…”