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'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.
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.
More from Politics
"3 million people are estimated not to have official photo ID, with ethnic minorities more at risk". They will "have to contact their council to confirm their ID if they want to vote"
This is shameful legislation, that does nothing to tackle the problems with UK elections.THREAD
There is no evidence in-person voter fraud is a problem, and it wd be near-impossible to organise on an effective scale. Campaign finance violations, digital disinformation & manipulation of postal voting are bigger issues, but these are crimes of the powerful, not the powerless.
In a democracy, anything that makes it harder to vote - in particular, anything that disadvantages one group of voters - should face an extremely high bar. Compulsory voter ID takes a hammer to 3 million legitimate voters (disproportionately poor & BAME) to crack an imaginary nut
If the government is concerned about the purity of elections, it should reflect on its own conduct. In 2019 it circulated doctored news footage of an opponent, disguised its twitter feed as a fake fact-checking site, and ran adverts so dishonest that even Facebook took them down.
Britain's electoral law largely predates the internet. There is little serious regulation of online campaigning or the cash that pays for it. That allows unscrupulous campaigners to ignore much of the legal framework erected since the C19th to guard against electoral misconduct.
This is shameful legislation, that does nothing to tackle the problems with UK elections.THREAD
Millions of people do not have photo ID. By forcing through mandatory voter-ID the government risk disenfranchising millions of legitimate voters. https://t.co/y0Upzof2FI
— Electoral Reform Society (@electoralreform) February 17, 2021
There is no evidence in-person voter fraud is a problem, and it wd be near-impossible to organise on an effective scale. Campaign finance violations, digital disinformation & manipulation of postal voting are bigger issues, but these are crimes of the powerful, not the powerless.
In a democracy, anything that makes it harder to vote - in particular, anything that disadvantages one group of voters - should face an extremely high bar. Compulsory voter ID takes a hammer to 3 million legitimate voters (disproportionately poor & BAME) to crack an imaginary nut
If the government is concerned about the purity of elections, it should reflect on its own conduct. In 2019 it circulated doctored news footage of an opponent, disguised its twitter feed as a fake fact-checking site, and ran adverts so dishonest that even Facebook took them down.
Britain's electoral law largely predates the internet. There is little serious regulation of online campaigning or the cash that pays for it. That allows unscrupulous campaigners to ignore much of the legal framework erected since the C19th to guard against electoral misconduct.
