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.
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.
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.
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I'm going to do two history threads on Ethiopia, one on its ancient history, one on its modern story (1800 to today). 🇪🇹
I'll begin with the ancient history ... and it goes way back. Because modern humans - and before that, the ancestors of humans - almost certainly originated in Ethiopia. 🇪🇹 (sub-thread):
The first likely historical reference to Ethiopia is ancient Egyptian records of trade expeditions to the "Land of Punt" in search of gold, ebony, ivory, incense, and wild animals, starting in c 2500 BC 🇪🇹
Ethiopians themselves believe that the Queen of Sheba, who visited Israel's King Solomon in the Bible (c 950 BC), came from Ethiopia (not Yemen, as others believe). Here she is meeting Solomon in a stain-glassed window in Addis Ababa's Holy Trinity Church. 🇪🇹
References to the Queen of Sheba are everywhere in Ethiopia. The national airline's frequent flier miles are even called "ShebaMiles". 🇪🇹
I'll begin with the ancient history ... and it goes way back. Because modern humans - and before that, the ancestors of humans - almost certainly originated in Ethiopia. 🇪🇹 (sub-thread):
The famous \u201cLucy\u201d, an early ancestor of modern humans (Australopithecus) that lived 3.2 million years ago, and was discovered in 1974 in Ethiopia, displayed in the national museum in Addis Ababa \U0001f1ea\U0001f1f9 pic.twitter.com/N3oWqk1SW2
— Patrick Chovanec (@prchovanec) November 9, 2018
The first likely historical reference to Ethiopia is ancient Egyptian records of trade expeditions to the "Land of Punt" in search of gold, ebony, ivory, incense, and wild animals, starting in c 2500 BC 🇪🇹
Ethiopians themselves believe that the Queen of Sheba, who visited Israel's King Solomon in the Bible (c 950 BC), came from Ethiopia (not Yemen, as others believe). Here she is meeting Solomon in a stain-glassed window in Addis Ababa's Holy Trinity Church. 🇪🇹
References to the Queen of Sheba are everywhere in Ethiopia. The national airline's frequent flier miles are even called "ShebaMiles". 🇪🇹
1/12
RT-PCR corona (test) scam
Symptomatic people are tested for one and only one respiratory virus. This means that other acute respiratory infections are reclassified as
2/12
It is tested exquisitely with a hypersensitive non-specific RT-PCR test / Ct >35 (>30 is nonsense, >35 is madness), without considering Ct and clinical context. This means that more acute respiratory infections are reclassified as
3/12
The Drosten RT-PCR test is fabricated in a way that each country and laboratory perform it differently at too high Ct and that the high rate of false positives increases massively due to cross-reaction with other (corona) viruses in the "flu
4/12
Even asymptomatic, previously called healthy, people are tested (en masse) in this way, although there is no epidemiologically relevant asymptomatic transmission. This means that even healthy people are declared as COVID
5/12
Deaths within 28 days after a positive RT-PCR test from whatever cause are designated as deaths WITH COVID. This means that other causes of death are reclassified as
RT-PCR corona (test) scam
Symptomatic people are tested for one and only one respiratory virus. This means that other acute respiratory infections are reclassified as
4/10
— Dr. Thomas Binder, MD (@Thomas_Binder) October 22, 2020
...indication, first of all that testing for a (single) respiratory virus is done outside of surveillance systems or need for specific therapy, but even so the lack of consideration of Ct, symptoms and clinical findings when interpreting its result. https://t.co/gHH6kwRdZG
2/12
It is tested exquisitely with a hypersensitive non-specific RT-PCR test / Ct >35 (>30 is nonsense, >35 is madness), without considering Ct and clinical context. This means that more acute respiratory infections are reclassified as
6/10
— Dr. Thomas Binder, MD (@Thomas_Binder) October 22, 2020
The neither validated nor standardised hypersensitive RT-PCR test / Ct 35-45 for SARS-CoV-2 is abused to mislabel (also) other diseases, especially influenza, as COVID-19.https://t.co/AkFIfTCTkS
3/12
The Drosten RT-PCR test is fabricated in a way that each country and laboratory perform it differently at too high Ct and that the high rate of false positives increases massively due to cross-reaction with other (corona) viruses in the "flu
External peer review of the RTPCR test to detect SARS-CoV-2 reveals 10 major scientific flaws at the molecular and methodological level: consequences for false positive results.https://t.co/mbNY8bdw1p pic.twitter.com/OQBD4grMth
— Dr. Thomas Binder, MD (@Thomas_Binder) November 29, 2020
4/12
Even asymptomatic, previously called healthy, people are tested (en masse) in this way, although there is no epidemiologically relevant asymptomatic transmission. This means that even healthy people are declared as COVID
Thread web\u2b06\ufe0f\u2b07\ufe0f
— Dr. Thomas Binder, MD (@Thomas_Binder) December 16, 2020
The fabrication of the "asymptomatic (super) spreader" is the coronation of the total nons(ci)ense in the belief system of #CoronasWitnesses.
Asymptomatic transmission 0.7%; 95% CI 0%-4.9% - could well be 0%!https://t.co/VeZTzxXfvT
5/12
Deaths within 28 days after a positive RT-PCR test from whatever cause are designated as deaths WITH COVID. This means that other causes of death are reclassified as
8/8
— Dr. Thomas Binder, MD (@Thomas_Binder) March 24, 2020
By the way, who the f*** created this obviously (almost) worldwide definition of #CoronaDeath?
This is not only medical malpractice, this is utterly insane!https://t.co/FFsTx4L2mw
