BC POLITICS
Saved by @Mollyycolllinss

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.

 What I'm going to do with this thread is a bit different from normal - I'm going to start by explaining the underlying law so that you can see why lawyers are a little skeptical of the odds of success, and only look at the complaint after that.
So let's start with the most basic basics:
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.
For Dominion's defamation cases, proving 1 and 4 is easy. 2 is, in the case of the lawyers they're suing, slightly more complex but not hard. And 3 - degree of fault - is really really hard to prove.
A false statement of fact that is defamatory is a slam dunk element here - all the fraud allegations against dominion are totally banana-pants. They are also allegations which are clearly going to harm Dominion's reputation.
Damages are also going to be simple - Dominion relies on a certain degree of public trust; without that they die. And the defendants have made them toxic to about a third of America.
Publication to another is easy - Rudy (and Sidney) told the world as loudly and often as they could that Dominion is corrupt. "Without privilege" is a bit more complex because statements made in litigation are privileged. You can't sue someone for stuff said in a different case.
But it's only just a tiny bit more complex here because Rudy and Sidney are both loudmouths and made lots of out-of-court statements. The plaintiffs just need to be sure they're relying only on those and that element is fine.
That leaves degree of fault. If a private individual accuses someone of defamation, all they have to prove is negligence. But if a public figure accuses someone of defamation, negligence isn't enough. They have to prove what's known as "actual malice."
And it's very very likely that Dominion is a public figure. In fact, when @jbarro and @Popehat interviewed their lawyer before the cases were filed, he said that while he wasn't going to concede the point, he was planning on having to prove actual malice.
So let's talk about actual malice. The first thing you need to know is that in the defamation context, "actual malice" has nothing to do with ill-will or the normal meaning of the word "malice." (Sorry, I know that's confusing. It's not my fault. Blame SCOTUS.)
To prove "actual malice" in a defamation case, you need to show either that the defendant knowingly lied or that the defendant made the statements with "reckless disregard" of the truth. And "reckless disregard" is *also* a term of art here.
You can't prove "reckless disregard" by showing that there wasn't an investigation or that there was a lot of evidence that it wasn't true. You have to show that the defendant actually had serious doubts about the truth of the statement and made them anyway.
That's something that's hard to prove unless you can climb into the defendant's head. And it's really hard to do that, especially before discovery.
And when I say "really hard," here's what I mean:

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.
That's not to say there aren't any - I've only looked at 10 or 15 - but it's a very big lift.

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.
In this case, Zimmerman v Al Jazeera, 246 F Supp 3d 257, 281-86 (D DC 2017), one claim survived a motion to dismiss. That survival seemed to be based on the fact that the media organization had obvious reasons to doubt their only source's veracity and still didn't investigate.
The court noted that just reasons to doubt alone wasn't enough, that failure to investigate also was often not enough, but that all of that, in combination with the source's recantation, could show reckless disregard.

And even there, the court called it a "close question."
That's a single surviving claim in an ocean of "failed to show actual malice" cases.

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.
I've got stuff that I have to take care of right now, but I'll do another thread after lunch (linking back to this) where we'll look at the complaint and see where things stand. I will say that I'm a bit more hopeful than @AkivaMCohen seems to be, but maybe only a bit.

More from Mike Dunford

Mike Dunford
Mike Dunford
@questauthority
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.
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Mike Dunford
Mike Dunford
@questauthority
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.
POLITICS
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Mike Dunford
Mike Dunford
@questauthority
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.
GOVERNMENT
Mike Dunford
Mike Dunford
@questauthority
Texas - WTF is this even - a very short reassurance thread:

1: The Texas "lawusit" against four other "battleground" states in the United States Supreme Court is legally stupid.* It is so legally stupid that I was reluctant to believe that even Ken Paxton would file it.

*My patience level is not ginormous today. Please don't try to explain to me why you think it isn't stupid for whatever other reasons because I'll be making liberal use of the airlock. Thx.

2: Yes, one state can sue another at the US Supreme Court. However, the Supreme Court gets to decide whether to take the case. One factor that they will **undoubtedly** look at is the factor of "injury."

Texas is claiming two things. First, that the states have a special interest in who becomes Vice President because of the tiebreaker. Second, that their electors are injured if their votes are "diluted" by electors from states that, in Texas's view, didn't obey their own law.


There is very little argument presented for "injury." Even less - barely a paragraph - was presented for how the defendant states caused that injury.

For lawyers, this is a signal that this is a performance of politics by "litigation" and not a serious effort.
COURT
Mike Dunford
Mike Dunford
@questauthority
You know what?

I *will* without a doubt regret this.

But I'm going to watch Mike Pence read out the last returns before I go to sleep.

Also.

FUCK YEAH, AMERICA!!!!

That was not sarcasm. Hell, I've got Lee damn Greenwood running through my head right now.

We had a no-kidding attempted coup today. One of the two guys who would have benefitted from that coup is standing in the chamber of the House - which was occupied by seditionists hours ago - signing off on his electoral defeat.

I never, in a thousand years, thought I would say this.

But I say thee ye, Michael Pence.
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NEW: @SidneyPowell1 radio interview w/ @toddeherman "The new report has a truckload of evidence of foreign interference in the election in it. That's what people seem to want to deny, even though the FBI & CISA ... issued an advisory and alert back on Oct. 30th & updated on

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Andy Ngo thinks Antifa are on a level with the Nazis in terms of wanton violence. Furthermore, he says that 'even the Nazis knew to cover their tracks' and that we didn't know about the Holocaust until afterwards.

Wrong, and offensive on almost every level.


Violence had been building for years prior to the Nazis assuming power, and much of it was instigated by the SA.

In 1932 for example, 105 people died in clashes between SA and opposing groups in Prussia alone - that's one region.

SA activity - marching through 'red' neighbourhoods and fighting those who opposed them was a deliberate strategy. The spectacle of violence and the implied 'restoral of order' was the point.


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[thread]

I am going to do a thread on several numbers

1

2,996

4,494

43,730

106,158

Now

We go back into the dim and distant past in British politics

We go back over 2 decades

A lesson from the past

Now I am going to focus on the words of two politicians

Two politicians who have held high offices in this land

And I am going to agree with their words

So those with a long memory

May have already figured out perhaps what I am going to do based on the first two numbers

And you'd be right

So let me get going on the journey

In my first post

I deliberately anonymised those numbers

Let me now give them context

1 Princess Diana or Margaret

2,996 9/11

The final 3 are UK coronavirus death tolls:

4,494 (5th April 2020)

43,730 (30th June 2020)

106,158 (1st February 2021)
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