On Wednesday, a Trump-appointed judge spanked three Trump boosters for spreading Trump’s lies in a ruling that could cost them hundreds of millions of dollars in damages. District Judge Carl J. Nichols crafted a blistering opinion allowing three defamation lawsuits filed by Dominion Voting Systems against MyPillow CEO Mike Lindell and Trump’s lawyers, Sidney Powell and Rudy Giuliani, to move forward to trial.
Nichols’ opinion sets forth the false claims peddled by each of the three defendants, then picks apart the evidence they used to support it. The resulting decision—which suggests that Dominion might satisfy even the high bar set for defamation claims from public figures about political contests—is a beatdown. It was a small wonder on Thursday that Alan Dershowitz, appearing at Lindell’s MyPillow Symposium, denounced the Dominion suit as the “new McCarthyism.” If you are not free to lie brazenly about everything, always, causing untold financial and institutional ruin, what liberty can possibly remain?
Nichols’ work represents the kind of tedious fact-checking and exacting scrutiny for which courts are still better suited than almost any other entity—not just connecting virulent lies to their consequences, but also affixing a dollar amount to both. As George Conway pointed out on Twitter, the damages may well be both massive and provable, given that some states will not buy Dominion voting systems as a result of the big lie that Lindell, Giuliani, and Powell continue to peddle. Dominion filed additional suits on Tuesday against Newsmax and One America News Network, alleging they also helped to spread baseless conspiracy theories about the company’s role in the 2020 election. While these cases, and a similar one against Fox News, deal with different First Amendment questions, Nichols’ ruling cannot bode well for these big media purveyors of the big lie.
In his refusal to dismiss the cases against Powell, Giuliani, and Lindell, Nichols sticks to the facts, although some of his facts are on their face hilarious. A footnote, either deliberately or not, points out that “MyPillow appears to […] argue that the First Amendment grants some kind of blanket protection to statements about ‘public debate in a public forum.’ ” (Pillow-blanket, get it?) He details, exhaustively, the fictions pressed by all three defendants, in the heat of the postelection uncertainty and confusion:
On November 12, Giuliani appeared on Fox Business’s Lou Dobbs Tonight and stated that Dominion is owned by a company called Smartmatic, which Giuliani claimed was formed “by three Venezuelans” “in order to fix elections.” Powell was a guest on the show the next day; she stated that 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.”
No such evidence was ever produced. Nichols cites a Powell statement from Nov. 23, again insisting that Dominion had stolen Trump votes “by massive election fraud” and that she was collecting “overwhelming” “evidence” that Dominion “shift[ed] millions of votes from President Trump.” She also claimed that Dominion was “founded by foreign oligarchs and dictators to ensure computerized ballot-stuffing and vote manipulation to whatever level was needed to make certain Venezuelan dictator Hugo Chávez never lost another election.” Nichols also quotes Lindell from a Dec. 3 appearance on America First with Sebastian Gorka to say that he and Powell were “getting the word out on this election fraud” and that they were targeting “Dominion machines.”
Nichols’ ruling is deliberate at pointing out the financial benefit each party gained from these destructive lies: Lindell, for instance, told America First viewers that the “president loves” MyPillow and informed them they could conveniently use promotional code “Gorka” for a discount at MyPillow.com. Nichols further noted that Lindell’s two-hour documentary called “ABSOLUTE PROOF,” broadcast on multiple news outlets and posted online, amplified the same lies and was featured on Lindell’s website above “a MyPillow ad encourag[ing] viewers to use the promotional code ‘PROOF’ to receive forty percent off a MyPillow product.”
Dominion provides the election equipment used by 40 percent of U.S. voters, and Nichols quotes the company’s pleadings to point out that the defendants’ conduct allegedly caused (1) Dominion employees to be “stalked, … harassed, and … receive death threats,” requiring Dominion to expend money “to remedy the defamation and to protect the lives of its employees,” and (2) harm in the form of lost profits and damage to the company’s name, reputation, and goodwill.
After laying out the alleged harms, Nichols then addresses the defendants’ efforts to dismiss the suits. He starts with Powell, who claims that “no reasonable person could conclude that her statements were statements of fact because they ‘concern the 2020 presidential election, which was both bitter and controversial,’ ” finding that “there is no blanket immunity for statements that are ‘political’ in nature.” He rejects Powell’s claim that her statements were protected commentary about a lawsuit, and determines that what she was asserting could surely be knowable falsehoods:
The question, then, is whether a reasonable juror could conclude that Powell’s statements expressed or implied a verifiably false fact about Dominion. … 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.” She told audiences that she would “tweet out the video.” 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.
Time and time again he rejects Powell’s boilerplate “people are saying” or “the evidence I have amassed will show” defenses as provably circular or potentially provably false.
Nichols also finds that a jury could well conclude Powell acted with “actual malice”—that is, with knowledge that her statements were false or with reckless disregard of whether they were false or not, because the supposed evidence she relied on in her pleadings were affidavits she may have helped draft, cherrypicked evidence, and purported proof she has never actually produced. Nichols is pitiless in his examination of her experts, who include, according to Dominion, one who
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.
Nichols finds that a reasonable jury could conclude that Powell had a reason to do all this: “to raise funds, to raise her public profile, and to curry favor with President Trump.” As he points out:
Dominion alleges that Powell repeatedly solicited donations to her law firm and [her organization Defending the Republic, Inc.] 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.”
As was the case last month in Michigan, when a different judge similarly put the Kraken lawyers through their paces as they insisted that they relished the chance to finally prove their fantastical theories in court, Powell, Giuliani, and Lindell have said for months now that all they ever wanted was their day in court to prove Dominion’s evil plan. As Yahoo News reported, when Dominion filed the suit in January, Giuliani said the lawsuit would “allow me to investigate [Dominion’s] history, finances, and practices fully and completely.” Lindell went so far as to say that he wanted to be sued by Dominion so he could prove his claims at trial. As Nichols recites, “on January 18, having received a retraction letter from Dominion, Mike Lindell repeated his claim that Dominion machines ‘were built to cheat’ and ‘steal elections,’ and he ‘welcome[d Dominion] to come after [him] because [he had] all the evidence and then they’ll finally see it.’ ”
Nichols just granted him his wish.