For weeks Dominion Voting Systems has stood by as attorneys Sidney Powell, Rudy Giuliani, and other Trump proxies cast it as the center of a wild conspiracy theory: that its software was used to switch votes from Trump to Biden on election night. The baseless theory, which probably emerged from QAnon circles, was used as one of the primary narratives to allege voter fraud and explain Trump’s loss.
Powell and Giuliani claimed that Dominion was owned by another vote tech company, called Smartmatic, which they said was tied to, or even founded by, Venezuelan leader Hugo Chávez to create software that could be used to easily switch votes. Fox News hosts parroted or entertained the unfounded theories. So did hosts and guests on Newsmax and OANN.
Now Dominion seems ready to take legal action.
“We have issued a formal demand for Sidney Powell to retract the many defamatory falsehoods that she has spread about Dominion,” the company says in a statement sent to Fast Company. “Given her recklessness to date, we are moving forward on the basis that she will not retract those false statements and that it will be necessary for Dominion to take aggressive legal action . . .”
The “demand” Dominion references was sent on its behalf by one of the best-known defamation firms in the country, Clare Locke LLP, the practice of the husband-and-wife team Tom Clare and Libby Locke. The firm won a $3 million jury verdict against Rolling Stone magazine based on allegations in a 2015 story that University of Virginia Dean Nicole P. Eramo tried to suppress charges of rape.
From the letter:
“Your false accusations about Dominion are defamatory per se and have exposed you, the entities you control, and the Trump Campaign to substantial legal risk for defamation. As a result of your false accusations, Dominion has suffered enormous harm, and its employees have been stalked, have been harassed, and have received death threats. For the safety of Dominion employees and for the sake of the truth and confidence in America democracy we demand that you immediately and publicly retract your false accusations and set the record straight. If you refuse to do so and instead choose to stand by your defamatory falsehoods, that will be viewed as additional evidence of actual malice.”
The letter also demands that the Trump campaign and related entities retain all documents related to its public claims about Dominion. This is probably why the Trump campaign on Saturday sent a memo down through the organization ordering that all documents related to Powell’s statements about Dominion be preserved, as CNN reported.
Representatives for the Trump campaign, Newsmax, and OAN did not respond to requests for comment for this story. A Fox News spokeswoman referred us to a November 22 interview on the network with a Dominion spokesman in which claims of election fraud were debunked.
Smartmatic, a maker of vote tabulation software, was also cast in team Trump’s vote manipulation theory. That company sent similar letters threatening legal action against Fox News, Newsmax, and OAN if they don’t retract statements that various hosts and guests made or parroted from the Trump campaign about the software company. Smartmatic has also retained a big name defamation lawyer—J. Erik Connolly, who is famous for winning the biggest defamation settlement in U.S. history—a $177 million dollar settlement from ABC News.
The Smartmatic letters appear to be having their effects.
Fox News over the weekend began airing a news package that debunks many of Trump’s voter fraud conspiracy theories, which had been propagated by its own hosts and guests. The package aired Saturday night on Jeanine Pirro’s show, and on Sunday morning during Maria Bartiromo’s show.
Over the weekend Newsmax began airing a spot during all of its shows “clarifying” statements its guests and hosts had made about Dominion and Smartmatic.
Newsmax just aired this note to "clarify" its coverage of Smartmatic and Dominion. pic.twitter.com/I5XZ7CQpAk
— John Whitehouse (@existentialfish) December 21, 2020
This is the full text of the Newsmax statement, tweeted by HuffPost White House correspondent S.V. Date:
Newsmax's Chris Ruddy tells me that the statement that's making the rounds will be aired on ALL Newsmax TV shows. This began over the weekend and will continue today.
Here it is: pic.twitter.com/h5i8uKrVPM
— S.V. Dáte (@svdate) December 21, 2020
‘She could have done some homework’
In order to prove that Dominion was defamed, legal experts say, attorneys would have to show that the defendants should have known their statements about the company were baseless. “Should Sidney Powell have known this is false? It seems that she could have done some homework and known this was false,” says Aaron Caplan, a law professor at LMU Loyola Law School in Los Angeles.
They would also have to show that Dominion was harmed by this, perhaps by losing business, losing employees, or having difficulty recruiting new employees, Caplan says. (This is quite plausible, because Dominion employees were harassed and even stalked by Trump supporters who blamed it for Trump’s loss.)
As defamation matters go, however, the dispute between Dominion and the Trump campaign has some unique features. Chief among them is the fact that the people doing the defaming are mainly Trump’s attorneys, and lawyers enjoy some privileges when it comes to defamation.
“Lawyers are immune from defamation if they say something false in court,” Caplan says. ” You don’t want to be sued just by going to work and saying your client’s story.” And this includes statements made in court filings.
In some states, like Oregon, this lawyers’ immunity even extends to press conferences in which a lawyer might deliver information on the client’s behalf to the public, Caplan says.
Indeed, press conferences were the main method used by Powell and Giuliani to trumpet their conspiracy theories. The question in this case is how much of what was said in the press conferences really came from the client, and how much was invented by the lawyer.
This story has been updated.