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
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.
I've been trying to think that through - not just legally, but judicially.
The more thinking I do the less serious - and more ludicrous - the entire thing looks. And the more obvious it becomes that this is the proposal of deeply unwell individuals who are not thinking clearly.
On the legal side, I read through the list of emergency powers - the whole list - that was assembled by the Brennan Center. Nothing on that list fits. Nothing comes even
It seems extraordinarily unlikely that any executive order along the lines of what has been discussed would be legal. In this case, it can be taken as a given that one or more targeted jurisdictions would dash right off to the courthouse.
Standing would not, it should go without saying, be likely to be an issue. I doubt redressability would either. I think it's very likely that restraining orders and injunctions would be swiftly issued.
That's the legal side, to the extent it's possible to speculate on that at all at this point. Basically, there's no readily apparent legal basis for such a thing, so it probably wouldn't be legal.
That's the easy part. Now for the nuttier side - the logistics.
The more thinking I do the less serious - and more ludicrous - the entire thing looks. And the more obvious it becomes that this is the proposal of deeply unwell individuals who are not thinking clearly.
Can you game out where it would go it theoretically Trump did enact some EO demanding the impounding of voting machines? As that\u2019s clearly the game. Like he signs it, then what? Do marshals listen or refuse? Do states sue and get an emergency injunction and that\u2019s the end?
— Bryan Duva (@duva60) December 21, 2020
On the legal side, I read through the list of emergency powers - the whole list - that was assembled by the Brennan Center. Nothing on that list fits. Nothing comes even
It seems extraordinarily unlikely that any executive order along the lines of what has been discussed would be legal. In this case, it can be taken as a given that one or more targeted jurisdictions would dash right off to the courthouse.
Standing would not, it should go without saying, be likely to be an issue. I doubt redressability would either. I think it's very likely that restraining orders and injunctions would be swiftly issued.
That's the legal side, to the extent it's possible to speculate on that at all at this point. Basically, there's no readily apparent legal basis for such a thing, so it probably wouldn't be legal.
That's the easy part. Now for the nuttier side - the logistics.
This is an excellent question, and it's something that I've thought about some over the last couple of months.
Honestly, I think the answer is that the rationales for these rulings are not likely to unreasonably harm meritorious progressive OR conservative challenges.
The first thing to keep in mind is that, by design, challenges to the outcomes of elections are supposed to be heard by state courts, through the process set out in state law.
That happened this year, and the majority of those challenges were heard on the merits.
The couple of cases where laches determined the outcome of state election challenges were ones where it was pretty clear that the challenges were brought in bad faith - where ballots cast in good faith in reliance on laws that had been in force for some time were challenged.
The PA challenge to Act 77 is one example. The challengers, some of whom had voted for passage of the bill, didn't make use of the initial, direct-to-PA-SCt challenge built into the law or sue pre-election; they waited until post-election.
The WI case is another. That one had a challenge to ballots cast using a form that had been in use for a literal decade.
Those are cases where laches is clear - particularly the prejudice element.
Honestly, I think the answer is that the rationales for these rulings are not likely to unreasonably harm meritorious progressive OR conservative challenges.
Any merit to the notion that the rationales for some of these rulings will harm progressive challenges in future elections?
— Andrew Broering (@AndrewBroering) January 3, 2021
One says laches, another moot, another standing, sometimes with almost the same type of plaintiff.
The first thing to keep in mind is that, by design, challenges to the outcomes of elections are supposed to be heard by state courts, through the process set out in state law.
That happened this year, and the majority of those challenges were heard on the merits.
The couple of cases where laches determined the outcome of state election challenges were ones where it was pretty clear that the challenges were brought in bad faith - where ballots cast in good faith in reliance on laws that had been in force for some time were challenged.
The PA challenge to Act 77 is one example. The challengers, some of whom had voted for passage of the bill, didn't make use of the initial, direct-to-PA-SCt challenge built into the law or sue pre-election; they waited until post-election.
The WI case is another. That one had a challenge to ballots cast using a form that had been in use for a literal decade.
Those are cases where laches is clear - particularly the prejudice element.
More from Politics
Funny, before the election I recall lefties muttering the caravan must have been a Trump setup because it made the open borders crowd look so bad. Why would the pro-migrant crowd engineer a crisis that played into Trump's hands? THIS is why. THESE are the "optics" they wanted.
This media manipulation effort was inspired by the success of the "kids in cages" freakout, a 100% Stalinist propaganda drive that required people to forget about Obama putting migrant children in cells. It worked, so now they want pics of Trump "gassing children on the border."
There's a heavy air of Pallywood around the whole thing as well. If the Palestinians can stage huge theatrical performances of victimhood with the willing cooperation of Western media, why shouldn't the migrant caravan organizers expect the same?
It's business as usual for Anarchy, Inc. - the worldwide shredding of national sovereignty to increase the power of transnational organizations and left-wing ideology. Many in the media are true believers. Others just cannot resist the narrative of "change" and "social justice."
The product sold by Anarchy, Inc. is victimhood. It always boils down to the same formula: once the existing order can be painted as oppressors and children as their victims, chaos wins and order loses. Look at the lefties shrieking in unison about "Trump gassing children" today.
Funny there are those who think these migrant caravans were a FANTASTIC idea that's going to take the immigration issue away from you.
— Brian Cates (@drawandstrike) November 26, 2018
Like several weeks watching a rampaging horde storm the fences & throw rocks at our border patrol agents & getting gassed = great optics!
This media manipulation effort was inspired by the success of the "kids in cages" freakout, a 100% Stalinist propaganda drive that required people to forget about Obama putting migrant children in cells. It worked, so now they want pics of Trump "gassing children on the border."
There's a heavy air of Pallywood around the whole thing as well. If the Palestinians can stage huge theatrical performances of victimhood with the willing cooperation of Western media, why shouldn't the migrant caravan organizers expect the same?
It's business as usual for Anarchy, Inc. - the worldwide shredding of national sovereignty to increase the power of transnational organizations and left-wing ideology. Many in the media are true believers. Others just cannot resist the narrative of "change" and "social justice."
The product sold by Anarchy, Inc. is victimhood. It always boils down to the same formula: once the existing order can be painted as oppressors and children as their victims, chaos wins and order loses. Look at the lefties shrieking in unison about "Trump gassing children" today.
All the challenges to Leader Pelosi are coming from her right, in an apparent effort to make the party even more conservative and bent toward corporate interests.
Hard pass. So long as Leader Pelosi remains the most progressive candidate for Speaker, she can count on my support.
I agree that our party should, and must, evolve our leadership.
But changed leadership should reflect an actual, evolved mission; namely, an increased commitment to the middle + working class electorate that put us here.
Otherwise it’s a just new figure with the same problems.
I hope that we can move swiftly to conclude this discussion about party positions, so that we can spend more time discussing party priorities: voting rights, healthcare, wages, climate change, housing, cannabis legalization, good jobs, etc.
Hard pass. So long as Leader Pelosi remains the most progressive candidate for Speaker, she can count on my support.
The strange thing about the fight to displace Nancy Pelosi as Speaker of the House is that no one seems willing to run against her. https://t.co/VhBqf4KJom
— The New Yorker (@NewYorker) November 21, 2018
I agree that our party should, and must, evolve our leadership.
But changed leadership should reflect an actual, evolved mission; namely, an increased commitment to the middle + working class electorate that put us here.
Otherwise it’s a just new figure with the same problems.
I hope that we can move swiftly to conclude this discussion about party positions, so that we can spend more time discussing party priorities: voting rights, healthcare, wages, climate change, housing, cannabis legalization, good jobs, etc.
Here's why I bother to do the search, and even take the time to check.
This is part of a pattern that as detailed by Mueller, and has been proven by reputable studies since then. Here are parts of an Oxford report on the goals of the ongoing social media operations of Russia. https://t.co/qapD8Eh2SQ
https://t.co/nJPPOwF1MA
The full report can be found here.
https://t.co/1q525xWYZE
Excertps from the 2019 Senate Intelligence Committee Report on Russian Actove Measures Campaigns and Interference:
Also form the Senate Intelligence Committee report
This is part of a pattern that as detailed by Mueller, and has been proven by reputable studies since then. Here are parts of an Oxford report on the goals of the ongoing social media operations of Russia. https://t.co/qapD8Eh2SQ
Here's some from a search of your TL
— \U0001d679\U0001d698\U0001d691\U0001d697 \U0001d686\U0001d68e\U0001d69c\U0001d695\U0001d68e\U0001d6a2 (@thepalemoonlt) April 21, 2021
Uses of the word prison before today: 13.
Tweets for specifically suggesting abolishing prison prior to today: 1 on 06/03/2020
Mentions of prison and abolishing it today: 8
Of all the times to speak out, Why did you choose to now? https://t.co/kl7gx7ky2H
https://t.co/nJPPOwF1MA
The full report can be found here.
https://t.co/1q525xWYZE
Excertps from the 2019 Senate Intelligence Committee Report on Russian Actove Measures Campaigns and Interference:
Also form the Senate Intelligence Committee report
