Happy Monday! Dominion Voting Systems is suing Rudy Giuliani for $1.3 billion.
As Akiva notes, the legal question is going to boil down to something known as "actual malice."
That's a tricky concept for nonlawyers (and often for lawyers) so an explainer might help.
So Dominion sued Rudy for defamation. How are they ever going to allege actual malice? https://t.co/p8d3flDkGm
— Akiva Cohen (@AkivaMCohen) January 25, 2021
If you want to win a defamation case, you have to prove:
(1) that defendant made a false and defamatory statement about you;
(2) to a third party without privilege;
(3) with the required degree of fault;
(4) causing you to suffer damage.
I've been flipping through defamation cases from the court where this case was filed. I'm finding lots of cases that were dismissed because actual malice wasn't adequately pled. I've not yet found one where a case survived.
OK - just found a case where a defamation claim survived a motion to dismiss in D. DC. Let's take a look at what that required.
And even there, the court called it a "close question."
So I hope you can see why, even though the claims are insane and it's clear that Rudy at least should have known they were false, a lot of lawyers are still skeptical of Dominion's chances.
More from Mike Dunford
Election Litigation Update: DC - the "let's sue the Electoral College" case.
This is a bit surprising, given that as of last time I checked nobody had been served and no appearance had been entered. I suspect it's an effort to make sure the case isn't "pending" on the 6th.
And, sure enough, still no proof of service on ANY defendant, still no appearance from defense counsel. And this is denying the motion for preliminary injunction but does NOT dismiss the case - which is potentially ominous for plaintiff's counsel.
This isn't a "happy judge" kind of first paragraph. Not even a little bit. Nope.
Y'all, this isn't even directed within a few hundred miles of my direction and I sill just instinctively checked to make sure that there's room for me to hide under my desk if I have to - this is a very not happy, very federal, very judge tone.
Also - the judge just outright said there's a bunch of reasons for dismissal. And not in "might be" terms. In definite fact ones. But the case isn't dismissed yet.
If I was plaintiffs counsel, I'd definitely be clearing under my desk right now, and possibly also my underwear.
This is a bit surprising, given that as of last time I checked nobody had been served and no appearance had been entered. I suspect it's an effort to make sure the case isn't "pending" on the 6th.
Link: https://t.co/oOJZD1F4x2
— Brad Heath (@bradheath) January 4, 2021
And, sure enough, still no proof of service on ANY defendant, still no appearance from defense counsel. And this is denying the motion for preliminary injunction but does NOT dismiss the case - which is potentially ominous for plaintiff's counsel.
This isn't a "happy judge" kind of first paragraph. Not even a little bit. Nope.
Y'all, this isn't even directed within a few hundred miles of my direction and I sill just instinctively checked to make sure that there's room for me to hide under my desk if I have to - this is a very not happy, very federal, very judge tone.
Also - the judge just outright said there's a bunch of reasons for dismissal. And not in "might be" terms. In definite fact ones. But the case isn't dismissed yet.
If I was plaintiffs counsel, I'd definitely be clearing under my desk right now, and possibly also my underwear.
Election Litigation Thread - Georgia:
OK, so since my attempt to sit back while Akiva does all the work of going through the latest proof that not only the pro se have fools for lawyers has backfired, let's take a stroll through the motion for injunctive relief.
At the start, I'd note that the motion does not appear to be going anywhere fast - despite the request that they made over 80 hours ago to have the motion heard within 48 hours.
The most recent docket entries are all routine start-of-case stuff.
Why isn't it going anywhere quickly? Allow me to direct your attention to something that my learned colleague Mr. Cohen said
Now I'm not a litigator, but if I had an emergency thing that absolutely had to be heard over a holiday weekend, I'd start by reading the relevant part of the local rules for the specific court in which I am filing my case.
In this case, this bit, in particular, seems relevant:
My next step, if I had any uncertainty at all, would be to find and use the court's after-hours emergency contact info. I might have to work some to find it, but it'll be there. Emergencies happen; there are procedures for them.
And then I'd do exactly what they tell me to do.
OK, so since my attempt to sit back while Akiva does all the work of going through the latest proof that not only the pro se have fools for lawyers has backfired, let's take a stroll through the motion for injunctive relief.
They've also got a brief in support of their injunction motion, but I've got client work that needs doing. Hopefully @questauthority has you covered
— Akiva Cohen (@AkivaMCohen) January 4, 2021
At the start, I'd note that the motion does not appear to be going anywhere fast - despite the request that they made over 80 hours ago to have the motion heard within 48 hours.
The most recent docket entries are all routine start-of-case stuff.
Why isn't it going anywhere quickly? Allow me to direct your attention to something that my learned colleague Mr. Cohen said
Folks, judges DO NOT read complaints or petitions when they are filed, and they DO NOT just up and act on the "requests for relief". If you want something, you need to actually ask the court for it by a motion, not just put it in your "here's what we want if we win" section
— Akiva Cohen (@AkivaMCohen) January 4, 2021
Now I'm not a litigator, but if I had an emergency thing that absolutely had to be heard over a holiday weekend, I'd start by reading the relevant part of the local rules for the specific court in which I am filing my case.
In this case, this bit, in particular, seems relevant:
My next step, if I had any uncertainty at all, would be to find and use the court's after-hours emergency contact info. I might have to work some to find it, but it'll be there. Emergencies happen; there are procedures for them.
And then I'd do exactly what they tell me to do.
Yes, I have seen the thing about Texas suing other states over the election. Yes, the US Supreme Court has original and exclusive jurisdiction over cases between states.
No, this is not a thing that will change the election. At all.
If this is real - and I do emphasize the if - it is posturing by the elected Republican "leadership" of Texas in an attempt to pander to a base that has degraded from merely deplorable to utterly despicable.
Apparently, it is real. For a given definition of real, anyway. As Steve notes, the Texas Solicitor General - that's the lawyer who is supposed to represent the state in cases like this - has noped out and the AG is counsel of
Although - again - I'm curious as to the source. I'm seeing no press release on the Texas AG's site; I'm wondering if this might not be a document released by whoever the "special counsel" to the AG is - strange situation.
Doesn't matter. The Supreme Court is Supremely Unlikely to take this case - their jurisdiction is exclusive, but it's also discretionary.
Meaning, for nonlawyers:
SCOTUS is the only place where one state can sue another, but SCOTUS can and often does decline to take the case.
No, this is not a thing that will change the election. At all.
If this is real - and I do emphasize the if - it is posturing by the elected Republican "leadership" of Texas in an attempt to pander to a base that has degraded from merely deplorable to utterly despicable.
Apparently, it is real. For a given definition of real, anyway. As Steve notes, the Texas Solicitor General - that's the lawyer who is supposed to represent the state in cases like this - has noped out and the AG is counsel of
It looks like we have a new leader in the \u201ccraziest lawsuit filed to purportedly challenge the election\u201d category:
— Steve Vladeck (@steve_vladeck) December 8, 2020
The State of Texas is suing Pennsylvania, Georgia, Michigan, and Wisconsin *directly* in #SCOTUS.
(Spoiler alert: The Court is *never* going to hear this one.) pic.twitter.com/2L4GmdCB6I
Although - again - I'm curious as to the source. I'm seeing no press release on the Texas AG's site; I'm wondering if this might not be a document released by whoever the "special counsel" to the AG is - strange situation.
Doesn't matter. The Supreme Court is Supremely Unlikely to take this case - their jurisdiction is exclusive, but it's also discretionary.
Meaning, for nonlawyers:
SCOTUS is the only place where one state can sue another, but SCOTUS can and often does decline to take the case.
More from Politics
For a few weeks I’ve been wondering about Alexandria Ocasio-Cortez and just how she emerged as a politico. Her path to Washington is shocking, at the very least. My first question was: What were her campaign positions BEFORE she became a national figure?
1/
So I went to her campaign website and took that web address and looked through the internet archive. When I went back to 2017, it was not her website, it belonged to the group "Brand New Congress."
2/
Here's what the web address https://t.co/Uhz2q4Dpll looks like now:
3/
Here's what the same web address looked like in late 2017:
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What's “Brand New Congress?” BNC is a group of Bernie Sanders staffers who got together, decided to make the 2018 midterms all about Bernie policies by taking his ideas & finding 400 Bernie carbon copies to dump into Congressional & other races, creating a 400 headed Bernie.
5/
1/
So I went to her campaign website and took that web address and looked through the internet archive. When I went back to 2017, it was not her website, it belonged to the group "Brand New Congress."
2/
Here's what the web address https://t.co/Uhz2q4Dpll looks like now:
3/
Here's what the same web address looked like in late 2017:
4/
What's “Brand New Congress?” BNC is a group of Bernie Sanders staffers who got together, decided to make the 2018 midterms all about Bernie policies by taking his ideas & finding 400 Bernie carbon copies to dump into Congressional & other races, creating a 400 headed Bernie.
5/
Trump is gonna let the Mueller investigation end all on it's own. It's obvious. All the hysteria of the past 2 weeks about his supposed impending firing of Mueller was a distraction. He was never going to fire Mueller and he's not going to
Mueller's officially end his investigation all on his own and he's gonna say he found no evidence of Trump campaign/Russian collusion during the 2016 election.
Democrats & DNC Media are going to LITERALLY have nothing coherent to say in response to that.
Mueller's team was 100% partisan.
That's why it's brilliant. NOBODY will be able to claim this team of partisan Democrats didn't go the EXTRA 20 MILES looking for ANY evidence they could find of Trump campaign/Russian collusion during the 2016 election
They looked high.
They looked low.
They looked underneath every rock, behind every tree, into every bush.
And they found...NOTHING.
Those saying Mueller will file obstruction charges against Trump: laughable.
What documents did Trump tell the Mueller team it couldn't have? What witnesses were withheld and never interviewed?
THERE WEREN'T ANY.
Mueller got full 100% cooperation as the record will show.
BREAKING: President Donald Trump has submitted his answers to questions from special counsel Robert Mueller
— Ryan Saavedra (@RealSaavedra) November 20, 2018
Mueller's officially end his investigation all on his own and he's gonna say he found no evidence of Trump campaign/Russian collusion during the 2016 election.
Democrats & DNC Media are going to LITERALLY have nothing coherent to say in response to that.
Mueller's team was 100% partisan.
That's why it's brilliant. NOBODY will be able to claim this team of partisan Democrats didn't go the EXTRA 20 MILES looking for ANY evidence they could find of Trump campaign/Russian collusion during the 2016 election
They looked high.
They looked low.
They looked underneath every rock, behind every tree, into every bush.
And they found...NOTHING.
Those saying Mueller will file obstruction charges against Trump: laughable.
What documents did Trump tell the Mueller team it couldn't have? What witnesses were withheld and never interviewed?
THERE WEREN'T ANY.
Mueller got full 100% cooperation as the record will show.
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So the cryptocurrency industry has basically two products, one which is relatively benign and doesn't have product market fit, and one which is malignant and does. The industry has a weird superposition of understanding this fact and (strategically?) not understanding it.
The benign product is sovereign programmable money, which is historically a niche interest of folks with a relatively clustered set of beliefs about the state, the literary merit of Snow Crash, and the utility of gold to the modern economy.
This product has narrow appeal and, accordingly, is worth about as much as everything else on a 486 sitting in someone's basement is worth.
The other product is investment scams, which have approximately the best product market fit of anything produced by humans. In no age, in no country, in no city, at no level of sophistication do people consistently say "Actually I would prefer not to get money for nothing."
This product needs the exchanges like they need oxygen, because the value of it is directly tied to having payment rails to move real currency into the ecosystem and some jurisdictional and regulatory legerdemain to stay one step ahead of the banhammer.
If everyone was holding bitcoin on the old x86 in their parents basement, we would be finding a price bottom. The problem is the risk is all pooled at a few brokerages and a network of rotten exchanges with counter party risk that makes AIG circa 2008 look like a good credit.
— Greg Wester (@gwestr) November 25, 2018
The benign product is sovereign programmable money, which is historically a niche interest of folks with a relatively clustered set of beliefs about the state, the literary merit of Snow Crash, and the utility of gold to the modern economy.
This product has narrow appeal and, accordingly, is worth about as much as everything else on a 486 sitting in someone's basement is worth.
The other product is investment scams, which have approximately the best product market fit of anything produced by humans. In no age, in no country, in no city, at no level of sophistication do people consistently say "Actually I would prefer not to get money for nothing."
This product needs the exchanges like they need oxygen, because the value of it is directly tied to having payment rails to move real currency into the ecosystem and some jurisdictional and regulatory legerdemain to stay one step ahead of the banhammer.
