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
I went over the dismissal on my stream, but a few thoughts on where things are at:
1: The Notice of Appeal doesn't shock me; I figured Louie would be this dumb.
2: As was the case with the case at the District Court, it doesn't really matter how vigorously Pence defends this.
3: The lack of standing is so spectacularly, glaringly obvious that it doesn't really matter whether Pence raised certain arguments; they will get noticed by the court.
4: That's because federal courts have an independent duty to ensure they have jurisdiction.
5: Standing is a jurisdictional requirement; no standing means no case.
6: The rules for standing are clear and nothing in the opinion dismissing the case was the least bit controversial in any universe except the alternate one inhabited by Louie and the Arizonan cosplayers.
7: "But it's the 5th Circuit" will be raised both by Trumpistians and those who are exceptionally nervous. There is exactly as much reason to be concerned about the 5th as there was the trial court: ie none at all.
So - my expectations:
Given the timeline, I suspect that Louie will be granted an expedited appeal and will lose on an expedited basis. I also expect that he will appeal to SCOTUS and the appeal there will not be expedited.
1: The Notice of Appeal doesn't shock me; I figured Louie would be this dumb.
2: As was the case with the case at the District Court, it doesn't really matter how vigorously Pence defends this.
And the appeal has been noticed. pic.twitter.com/o4g4ES1wrU
— Kyle Cheney (@kyledcheney) January 2, 2021
3: The lack of standing is so spectacularly, glaringly obvious that it doesn't really matter whether Pence raised certain arguments; they will get noticed by the court.
4: That's because federal courts have an independent duty to ensure they have jurisdiction.
5: Standing is a jurisdictional requirement; no standing means no case.
6: The rules for standing are clear and nothing in the opinion dismissing the case was the least bit controversial in any universe except the alternate one inhabited by Louie and the Arizonan cosplayers.
7: "But it's the 5th Circuit" will be raised both by Trumpistians and those who are exceptionally nervous. There is exactly as much reason to be concerned about the 5th as there was the trial court: ie none at all.
So - my expectations:
Given the timeline, I suspect that Louie will be granted an expedited appeal and will lose on an expedited basis. I also expect that he will appeal to SCOTUS and the appeal there will not be expedited.
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
You May Also Like
Joe Rogan's podcast is now is listened to 1.5+ billion times per year at around $50-100M/year revenue.
Independent and 100% owned by Joe, no networks, no middle men and a 100M+ people audience.
👏
https://t.co/RywAiBxA3s
Joe is the #1 / #2 podcast (depends per week) of all podcasts
120 million plays per month source https://t.co/k7L1LfDdcM
https://t.co/aGcYnVDpMu
Independent and 100% owned by Joe, no networks, no middle men and a 100M+ people audience.
👏
https://t.co/RywAiBxA3s
Joe is the #1 / #2 podcast (depends per week) of all podcasts
120 million plays per month source https://t.co/k7L1LfDdcM
https://t.co/aGcYnVDpMu
"I lied about my basic beliefs in order to keep a prestigious job. Now that it will be zero-cost to me, I have a few things to say."
We know that elite institutions like the one Flier was in (partial) charge of rely on irrelevant status markers like private school education, whiteness, legacy, and ability to charm an old white guy at an interview.
Harvard's discriminatory policies are becoming increasingly well known, across the political spectrum (see, e.g., the recent lawsuit on discrimination against East Asian applications.)
It's refreshing to hear a senior administrator admits to personally opposing policies that attempt to remedy these basic flaws. These are flaws that harm his institution's ability to do cutting-edge research and to serve the public.
Harvard is being eclipsed by institutions that have different ideas about how to run a 21st Century institution. Stanford, for one; the UC system; the "public Ivys".
As a dean of a major academic institution, I could not have said this. But I will now. Requiring such statements in applications for appointments and promotions is an affront to academic freedom, and diminishes the true value of diversity, equity of inclusion by trivializing it. https://t.co/NfcI5VLODi
— Jeffrey Flier (@jflier) November 10, 2018
We know that elite institutions like the one Flier was in (partial) charge of rely on irrelevant status markers like private school education, whiteness, legacy, and ability to charm an old white guy at an interview.
Harvard's discriminatory policies are becoming increasingly well known, across the political spectrum (see, e.g., the recent lawsuit on discrimination against East Asian applications.)
It's refreshing to hear a senior administrator admits to personally opposing policies that attempt to remedy these basic flaws. These are flaws that harm his institution's ability to do cutting-edge research and to serve the public.
Harvard is being eclipsed by institutions that have different ideas about how to run a 21st Century institution. Stanford, for one; the UC system; the "public Ivys".
