Dominion is going after Trump allies and right-wing media over election conspiracy theories. Experts say the voting technology company’s defamation lawsuits could be devastating if they win.
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Dominion Voting Systems — an election-technology company implicated in false conspiracy theories about the 2020 presidential election — filed a $1.3 billion lawsuit against Sidney Powell, an architect of the conspiracy theories, on Friday.
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Attorneys for Dominion and Smartmatic, another election-technology company, have warned of lawsuits against President Donald Trump, Fox News, Newsmax, and One America News.
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Legal experts told Insider such defamation lawsuits could be big wins for Dominion.
On January 3, two months after he lost the 2020 election to Joe Biden, President Donald Trump pushed Georgia’s secretary of state, Brad Raffensperger, to “find 11,780 votes.”
He blamed his loss in the state – and the rest of the country – in part on Dominion Voting Systems, an election-technology company that helps states and counties tabulate their votes, suggesting he lost because of “tremendous corruption with Dominion machines” and saying the company “took out machines” and “shredded” 3,000 pounds of ballots.
The call sparked new calls for impeachment and criminal referrals because of the way Trump spoke with Raffensperger, seemingly using veiled threats to urge a state’s top election official to overturn the results.
But it has also demonstrated how deeply conspiracy theories about the election have taken root in the Republican Party. That Trump and not Biden really won the 2020 US election was not just an empty rallying cry.
The president of the United States was citing a baseless conspiracy theory about an election-technology company – which has been accredited and vetted by numerous government agencies and third parties for many years – to fight democracy. Trump has also implicated Smartmatic, a rival technology company.
Such conspiracy theories morphed into a mortally dangerous threat three days later, when Trump spoke with a rally in Washington, DC, telling his supporters that the election was stolen and that they should march to the Capitol and show their disapproval.
His supporters did exactly that, breaching the Capitol and invading its halls and chambers, delaying the certification of Trump’s loss, and leading to the deaths of five people and a deep stain on Trump’s legacy as president.
Dominion Voting Systems is now going on the offense, taking the battle over its reputation to court.
On Friday, Dominion filed a $1.3 billion defamation lawsuit against Sidney Powell, an architect of the conspiracy theories about the 2020 presidential election.
Tom Clare, a defamation attorney representing Dominion, told Insider the company had “no choice” but to resort to legal tactics. He said the company was caught in a maelstrom of lies it believed had severely damaged its reputation.
And as Insider previously reported, Dominion has sent document-retention letters to Trump’s allies, including right-wing media organizations, threatening “imminent” litigation. They include Rudy Giuliani, who represents the Trump campaign as an attorney parroting those same theories, as well as to members of the right-wing media universe including Fox News, Newsmax, and One America News that have pushed the theories as well.
The damages in these defamation lawsuits, if they are as successful, could be enormous. They are widely viewed as comparable to the “pink slime” lawsuit brought against ABC News, which scored a $177 million settlement (Smartmatic has hired J. Erik Connolly, one of the attorneys in that case).
But if the lawsuit against Powell is any indication, Clare believes the damages could be greater.
“The damage that has been suffered is still unfolding,” Clare told Insider. “It is enormous, but it is still very much occurring in real time on the airwaves and on the internet.”
Some First Amendment experts view litigation as easy victories
Powell – who worked on Trump’s “Elite Strike Force” legal team seeking to overturn election results before striking it out on her own – has made numerous false claims about Dominion.
She said that the company was “created in Venezuela at the direction of Hugo Chavez to make sure he never lost an election” and that its software featured the ability to flip votes. Trump’s media allies have encouraged her: The Fox Business Network host and commentator Lou Dobbs put Powell on his show to spout those lies unchecked and called her “a great American.”
Dominion has no ties to Venezuela and does not modify votes. Smartmatic, the rival company Powell claims is secretly in cahoots with Dominion, does have ties to Venezuela. But its experience is the opposite of what Powell alleges: It left the country after criticizing the Chavez regime for announcing fake election results.
Some experts say the only question is how great the damages will be.
Andrew Koppelman, a professor of political science at Northwestern’s law school, speculated that a jury might grant punitive damages to Dominion.
“In the interest of promoting the falsehood that Trump won the election, these folks have all done pretty severe harm to an entirely innocent company,” Koppelman said. “I could easily see how a jury would find that reprehensible enough for more damages.”
But other experts caution that defamation lawsuits are difficult to win.
Frederick Schauer, a leading First Amendment scholar who is a professor at the University of Virginia, says there’s a “very tough hurdle to clear” to win the kind of defamation lawsuits Dominion and Smartmatic may soon be filing.
“Anybody in this situation has a very, very serious burden,” he said. “That burden comes in part because of the requirement of showing by ‘convincing clarity,’ as the court put it, but also showing either intention of falsity or actually having a suspicion of falsity and not doing anything.”
He said Dominion must show that the parties spreading false claims about the company knew their statements were false and did nothing to stop them.
“Proving it has to go beyond negligence, has to go beyond a failure of due diligence, has to go beyond even the common law’s function of gross negligence and reckless disregard,” Schauer said. “That’s why it’s a tough lawsuit.”
In a press conference Friday, Clare said it was clear Powell acted with “actual malice,” another legal standard for defamation.
After Dominion sent Powell letters demanding retractions, she ignored it and later wrote on Twitter: “Haven’t seen it but retracting nothing We have #evidence. They are #fraud masters!” She also repeated her claims repeatedly for months, despite all evidence and serial losses in court.
“It is hard to imagine better evidence of reckless disregard to the truth,” Clare said.
Powell also faces disbarment and other court sanctions in Michigan, where one of her lawsuits failed. She hasn’t responded to those motions for sanctions either.
If Powell loses a defamation lawsuit for her claims, those losses could form the basis of additional motions to have her disbarred, according to Jan Jacobowitz, a former University of Miami legal-ethics professor who now works as a legal-ethics consultant.
Powell didn’t respond to a request for comment for this story.
Can defamation lawsuits target Trump?
Even before the 2020 election, Trump has frequently made false claims about voting being rigged against him.
He tweeted that the process for deciding Emmys wasn’t fair after “The Apprentice” didn’t win. When a 2012 “Top Scot” award sponsored by a Scottish whisky brand went to a personal rival of Trump’s, he decried the results, claiming that people voted multiple times and that “there is no way a result such as this could have been made by the Scottish people.”
As president, he said the 2016 election that he won was illegitimate, baselessly claiming that millions of people voted illegally.
Trump lost the 2020 election with 232 electoral college votes to Biden’s 306. He also lost the popular vote by more than 7 million.
Following his loss, he and Republican allies filed more than 40 lawsuits challenging the results. Some argued only about whether election laws were duly followed (they were, judges ruled). Some were fought on factual grounds, like Powell’s lawsuits alleging wild tales of Venezuelan interference and smuggled USB drives.
Some judges decided that the parties did not have standing to bring the cases in the first place – like Texas trying to litigate election laws in other states – or that the lawsuits were based on falsehoods and lacked merit.
“Plaintiff ‘asks that the Rule of Law be followed,’” Brett Ludwig, a Trump-appointed federal judge, wrote in a ruling for a case brought by Trump’s campaign. “It has been.”
Few of the more than 100 Republican congressional lawmakers supporting Trump have said the very same ballots that elected them were invalid. They’ve instead argued that the presidential race is in question, allying themselves with Trump’s efforts to overturn the election.
Despite the losses in court, Trump has continued to push the conspiracy theories about the election. He even tweeted “Dominionizing the Vote,” a video package put together by the far-right One America News Network (before his Twitter account was suspended). It featured the QAnon advocate Ron Watkins as a cybersecurity expert. Watkins is also featured as an affiant in Powell’s lawsuits, even though he has no experience in election security and has offered no evidence that he has analyzed Dominion machines. In the video, the OAN host Chanel Rion also discusses Eric Coomer, a Dominion executive, whom she describes as an “Antifa-drenched engineer hell-bent on deleting half of America’s votes.”
Coomer is suing Trump, Powell, Giuliani, and various other right-wing figures and organizations over those claims.
“Dr. Coomer’s claims are personal, as his reputation has been damaged and his safety has been threatened,” a representative for Coomer told Insider. “It was important to assert those claims in court now, to let those responsible know they will be held accountable.”
Trump’s fantastical claims about irregularities in the 2020 election ultimately led to a pro-Trump mob storming the US Capitol on Wednesday to interrupt the formality of Congress certifying Biden’s victory.
Even after Congress resumed hours after the riot to certify the votes, more than 100 Republican members of Congress objected and called for investigations into irregularities, which no election officials or courts say exist.
Dominion CEO John Poulos has said he did not want to go to court over the claims about Dominion but had no choice given how widespread the lies had become.
He and Smartmatic CEO Antonio Mugica say they are still weighing whether to sue Trump.
In December, Dominion sent a document-retention letter to Pat Cipollone, the White House counsel, asking that he retain all records about conversations related to Dominion.
The Trump campaign didn’t respond to a request for comment from Insider.
Koppelman, the Northwestern professor, said he thought lawsuits against Trump and other people who spread conspiracy theories about Dominion and Smartmatic would most likely be successful.
“It’s pure recklessness,” Koppelman told Insider. “Their grievance against Dominion is precisely that their voting machines work. The real object of their grievance is the voters who did not vote for Donald Trump. This is an absolutely classic case of killing the messenger.”
He said the one thing that might give Dominion pause is whether Trump would actually be able to pay damages.
A New York Times investigation of Trump’s tax returns showed that he often paid nothing in income taxes, might soon owe tens of millions of dollars to the IRS, and was set to owe additional hundreds of millions of dollars in loan repayments.
“The only thing I would worry about if I were Dominion is whether Donald Trump in fact has any money,” Koppelman said.
Trump is also defending himself against a dozen major civil lawsuits and may face criminal investigations and charges once he leaves office and loses presidential immunity.
Trump’s media allies are also at risk
Fox News, Newsmax, and One America News all received notices warning of “imminent” litigation from Dominion and Smartmatic.
OAN doubled down, sending Dominion a letter requesting it to retain documents about its ties to Venezuela (Dominion says it has none).
But Fox News and Newsmax published videos backtracking in response to Smartmatic’s letter. Newsmax said it was “clarifying” its previous coverage by saying it had no evidence that Smartmatic did anything wrong, and Fox News aired a segment in which an election-technology expert said the 2020 election was sound.
Asked whether similar videos about Dominion would be enough to fend off defamation lawsuits, Clare said “no” and laughed.
Experts say those types of videos might help Fox News and Newsmax limit the damages they’d be liable for if they were to lose a lawsuit but would be unlikely to save them from the merits of a case. According to Schauer, the damages could be limited to the dates between when the media organization first aired their falsehoods to when they issued walkbacks.
“Newsmax has published and aired on numerous occasions that Dominion was challenging the claims made by President Trump and his attorneys,” a Newsmax representative, Brian Peterson, told Insider.
But Clay Calvert, a press-freedom expert at the University of Florida, said media organizations had a responsibility to investigate allegations and could not simply report baseless allegations just because someone had made them.
The defendants in Dominion’s lawsuits may argue that they sincerely believed the allegations and made them in good faith. Experts say arguing that the media ecosystem is filled with falsehoods would not be a sufficient defense – especially given the mountains of court cases and statements from election officials showing that the election was secure.
“A jury will have to judge by a standard of what a reasonable person would consider true,” Calvert said. “Being stuck in a media ecosystem is not an excuse. Just because Lou Dobbs may be wrong and never see truth doesn’t mean it’s acceptable.”
Established news organizations, including Insider Inc., typically have legal trainings for their journalists and multiple levels of editorial oversight to ensure the stories they publish are accurate and fair.
Dominion also sent letters to individual hosts on the media networks, including Sean Hannity, Dobbs, and Maria Bartiromo of Fox News and Greg Kelly of Newsmax.
Experts said that even if Dominion didn’t ultimately sue individuals and media organizations it sent letters to, the letters would still serve as a way to stop “ongoing” defamation.
Indeed, talk of Dominion and Smartmatic had largely receded from Fox News’ coverage since late December. Tweets from hosts like Dobbs making the same claims have remained up, and Fox News opinion hosts and guests have continued to push the baseless allegation that election results may have been falsified.
Fox News declined to comment for this story. A representative directed Insider to a Fox News segment from late November in which the host Tucker Carlson cast doubt on Powell’s claims, a separate interview from the host Eric Shawn with a Michigan University engineering professor who said there’s no evidence of wrongdoing from Dominion, and a story in which a Dominion representative said switching votes was impossible.
Figures who are demonized in the media sometimes choose not to sue over false claims because they do not want to amplify such claims.
But a lawsuit against Fox News, if successful, could be hugely damaging to the network, experts speculated. Unlike OAN or Newsmax – which Trump allies have considered buying – Fox News is extraordinarily valuable. Its parent company, the Fox Corporation, made more than $12 billion in revenue in its 2020 fiscal year.
Koppelman said a jury might find that Fox News’ conduct “was so reprehensible that punitive damages are in order.”
“Depending on how this lawsuit works out, this lawsuit could considerably increase the value of Dominion,” Koppelman said.
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