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© Provided by Business Insider Sidney Powell and President Donald Trump. Getty Images

  • Dominion Voting Systems — an election technology company implicated in false conspiracy theories about the 2020 presidential election — filed a $1.3 billion lawsuit against Sidney Powell, an architect of the conspiracy theories, on Friday.
  • Attorneys for Dominion and Smartmatic, another election technology company, have warned of potential lawsuits against President Donald Trump, Fox News, Newsmax, and One America News.
  • Legal experts told Insider the potential defamation lawsuits could be big wins for Dominion if they succeed in court.
  • Visit Business Insider’s homepage for more stories.

On January 3, two months after he lost the 2020 election to President-elect Joe Biden, President Donald Trump pushed Georgia Secretary of State Brad Raffensperger to “find 11,780 votes.”

He blamed his loss in the state – and the rest of the country – on Dominion Voting Systems, an election technology company that helps states and counties tabulate their votes, suggesting he lost because of “tremendous corruption with Dominion machines,” saying the election technology company “took out machines” and “shredded … 3,000 pounds of ballots.”

The call spurred new calls for impeachment and criminal referrals for Trump’s apparent use of threats to overturn the election.

It has also demonstrated how deeply conspiracy theories about the election have taken root in the Republican party. That Trump and not Biden really won the election was not just an empty rallying cry.

The president of the United States was citing a baseless conspiracy theory about an election technology company – which has been accredited and vetted by numerous government agencies and third parties for many years – to fight democracy.

The conspiracy theory morphed into a mortally dangerous threat three days later, when Trump spoke to a rally in Washington, DC, telling his supporters that the election was stolen and that they should march to the Capitol and show their disapproval.

His supporters did exactly that, infiltrating the Capitol building and invading its halls and chambers, delaying the certification of Trump’s loss, leading to the death of five people and a new black mark on Trump’s legacy in history.

Implicated in Trump’s dangerous conspiracy theories are Dominion and Smartmatic, a rival technology company.

Dominion Voting Systems is now going on the offense, taking the battle over their reputation to court.

On Friday, Dominion filed a $1.3 billion defamation lawsuit against Sidney Powell, an architect of the conspiracy theories about the 2020 presidential election.

© Alan Chin/Business Insider Rioters waved Trump and American flags on the Capitol steps before storming the building. Alan Chin/Business Insider

Tom Claire, a defamation attorney representing Dominion, told Insider the company had “no choice” but to resort to legal tactics. He said the company is caught in a maelstrom of lies they believe has severely damaged its reputation.

And as Insider previously reported, Dominion has sent document retention letters to Trump’s allies, including right-wing media organizations, threatening “imminent” litigation. They include Rudy Giuliani, who represents the Trump campaign as an attorney parroting those same theories, as well as to members of the right-wing media universe including Fox News, Newsmax, and One America News that have pushed the theories, as well.

Read more: Dominion sends letters threatening defamation lawsuits to Sean Hannity, Maria Bartiromo, Lou Dobbs, and other pro-Trump media figures

The damages in these defamation lawsuits, if they are as successful, could be enormous. They are widely viewed as comparable to the “pink slime” lawsuit brought against ABC News, which scored a $177 million settlement (Smartmatic hired J. Erik Connolly, one of the attorneys in that case).

But if the lawsuit against Powell is any indication, Claire believes the damages could be greater. 

“The damage that has been suffered is still unfolding,” Claire told Insider. “It is is enormous, but it is still very much occurring in real-time on the airwaves and on the internet.”

Some First Amendment experts view litigation as easy victories

Powell – who worked on Trump’s “Elite Strike Force” legal team seeking to overturn election results before striking it out on her own – has made numerous false claims about Dominion.

She said the company was “created in Venezuela at the direction of Hugo Chavez to make sure he never lost an election” and that its software features the ability to flip votes. Trump’s media allies have encouraged her: Fox Business Network host and commentator Lou Dobbs put Powell on his show to spout those lies unchecked and called her “a great American.”

But Dominion has no ties to Venezuela and does not modify votes. Smartmatic, the rival company Powell claims is secretly in cahoots with Dominion, does have ties to Venezuela. But its experience is the opposite of what Powell alleges: They left the country after criticizing the Chavez regime for announcing fake election results.

© AP Photo/Jacquelyn Martin Rudy Giuliani and Sidney Powell at a Trump campaign press conference. AP Photo/Jacquelyn Martin

The only question, some experts say, is how great the damages will be.

Andrew Koppelman, a professor of political science at Northwestern University School of Law, speculated that a jury might grant punitive damages to Dominion.

“In the interest of promoting the falsehood that Trump won the election, these folks have all done pretty severe harm to an entirely innocent company,” Koppelman said. “I could easily see how a jury would find that reprehensible enough for more damages.”

But other experts caution that defamation lawsuits are extremely difficult to win.

Frederick Schauer, a leading First Amendment Scholar and professor at the University of Virginia, says there’s a “very tough hurdle to clear” to win the kind of defamation lawsuits Dominion and Smartmatic may soon be filing.

“Anybody in this situation has a very, very serious burden. That burden comes in part because of the requirement of showing by ‘convincing clarity,’ as the court put it, but also showing either intention of falsity or actually having a suspicion of falsity and not doing anything,” he said.

© Provided by Business Insider Former Mayor of New York Rudy Giuliani, a lawyer for President Donald Trump, speaks during a news conference at the Republican National Committee headquarters, Thursday Nov. 19, 2020, in Washington. Jacquelyn Martin/AP Photos

He said Dominion must show that the parties lying about the company knew that their statements were false, and did nothing to stop them.

“Proving it has to go beyond negligence, has to go beyond a failure of due diligence, has to go beyond even the common law’s function of gross negligence and reckless disregard,” Schauer said. “That’s why it’s a tough lawsuit.”

In a press conference Friday, Claire said it was clear Powell acted with “actual malice,” another legal standard for defamation.

After Dominion sent Powell letters demanding retractions, she ignored them and later wrote on Twitter: “Haven’t seen it but retracting nothing We have #evidence. They are #fraud masters!” She also repeated her claims repeatedly for months, despite all evidence and serial losses in court.

“It is hard to imagine better evidence of reckless disregard to the truth,” Claire said.

© REUTERS/Henry Nicholls Antonio Mugica, CEO of Smartmatic, in December. REUTERS/Henry Nicholls

Powell also faces potential disbarment and other court sanctions in Michigan, where one her lawsuits failed. She hasn’t responded to those motions for sanctions either.

If Powell loses a defamation lawsuit for her claims, those losses could form the basis of additional motions to have her disbarred, according to Jan Jacobowitz, a former University of Miami legal ethics professor who now works as a legal ethics consultant.

Powell didn’t respond to a request for comment for this story.

Can Trump be sued for defamation?

Even before the 2020 election, Trump has frequently made false claims about voting being rigged against him.

He tweeted that the process for deciding Emmys wasn’t fair after “The Apprentice” didn’t win. When a 2012 Scottish whiskey award went to a brand other than his own, he decried the results, claiming people voted multiple times and that “there is no way a result such as this could have been made by the Scottish people.”

Most famously, he said the 2016 presidential election he won was illegitimate, claiming that millions of people voted illegally.

© Tayfun Coskun/Anadolu Agency via Getty Images US President Donald Trump speaks at the rally before his supporters rioted at the Capitol. Tayfun Coskun/Anadolu Agency via Getty Images

Trump lost the 2020 election with 232 electoral college votes to Biden’s 306. He also lost the popular vote by more than 7 million.

Following his loss, he and Republican allies filed more than 40 lawsuits challenging the results. Some argued only about whether election laws were duly followed (they were, judges ruled). Some were fought on factual grounds, like Powell’s lawsuits alleging wild tales of Venezuelan interference and smuggled USB drives.

All of them failed.

Some judges decided the parties did not have standing to bring the cases in the first place, like Texas trying to litigate the election laws in other states, or that they were based on falsehoods and lacked merit.

“Plaintiff ‘asks that the Rule of Law be followed,'” Brett Ludwig, a Trump-appointed federal judge, wrote in a ruling for a case brought by his campaign. “It has been.”

Few of the hundreds of Republican lawmakers supporting Trump have said that the very same ballots that elected them were invalid. They’ve only said the presidential race is in question, allying themselves with Trump’s efforts to overturn the election.

© Erin Schaff/Pool via REUTERS Josh Hawley, one of the leading Senators who sought to block the certification of votes for the 2020 presidential election based on the conspiracy theory that it was marred by irregularities. Erin Schaff/Pool via REUTERS

Despite the losses in court, Trump has continued to push the conspiracy theories about the election. He even tweeted “Dominionizing the Vote,” a video package put together by the far-right One America News Network (before his account was suspended). It featured QAnon advocate Ron Watkins as a cybersecurity expert. Watkins is also featured as an affiant in Powell’s lawsuits, even though he has no experience in election security and has offered no evidence that he has analyzed Dominion machines. In the video, OAN host Chanel Rion also discusses Eric Coomer, a Dominion executive, who she describes as an “Antifa-drenched engineer hell-bent on deleting half of America’s votes.”

Coomer is suing Trump, Powell, Giuliani, and various other right-wing figures and organizations over those claims.

“Dr. Coomer’s claims are personal, as his reputation has been damaged and his safety has been threatened,” a spokesperson for Coomer told Insider. “It was important to assert those claims in court now, to let those responsible know they will be held accountable.”

Trump’s fantastical claims about irregularities in the 2020 election ultimately led to a pro-Trump mob storming the Capitol building on Wednesday to interrupt Congress from certifying Biden’s victory, normally a ceremonial event.

Even after Congress resumed later that night to ultimately certify the votes, more than 100 Republican members of Congress objected and called for investigations into irregularities, which no election officials or courts say exist.

© Saul Loeb – Pool/Getty Images U.S. Vice President Mike Pence presides over a joint session of Congress on January 06. Saul Loeb – Pool/Getty Images

Dominion CEO John Poulos has said he did not want to go to court over the claims about Dominion but had no choice given how widespread the lies have become.

He, along with Smartmatic CEO Antonio Mugica, say they are still weighing whether to sue Trump.

In December, Dominion sent a document retention letter to Pat Cipollone, the White House Counsel, asking that he retain all records about conversations related to Dominion.

The Trump campaign didn’t respond to Insider’s request for comment.

Andrew Koppelman, a First Amendment scholar at Northwestern University Law School, said he thinks lawsuits against Trump and other people who spread conspiracy theories about Dominion and Smartmatic will likely be successful.

“It’s pure recklessness. Their grievance against Dominion is precisely that their voting machines work,” Koppelman told Insider. “The real object of their grievance is the voters who did not vote for Donald Trump. This is an absolutely classic case of killing the messenger.”

He said the one thing that may give Dominion pause is whether Trump would actually be able to pay damages.

A New York Times investigation of Trump’s tax returns showed that he often pays nothing in income taxes, may soon owe tens of millions of dollars to the IRS, and is set to owe additional hundreds of millions of dollars in loan repayments.

“The only thing I would worry about if I were Dominion is whether Donald Trump in fact has any money,” Koppelman said.

Trump is also defending himself against a dozen major civil lawsuits and may face criminal investigations and charges once he leaves office and loses presidential immunity.

Trump’s media allies are also at risk

Fox News, Newsmax, and One America News all received notices warning of “imminent” litigation from Dominion and Smartmatic.

OAN doubled down, sending Dominion a letter requesting it to retain documents about its ties to Venezuela (Dominion says it has none).

Fox News and Newsmax both published videos in response to Smartmatic’s letter. Newsmax said it was “clarifying” its previous coverage by saying it had no evidence that Smartmatic did anything wrong, and Fox News aired a segment where an election technology expert says the 2020 election was sound.

When asked if similar videos about Dominion would be enough to fend off defamation lawsuits, Claire said “no” and laughed.

© Provided by Business Insider Rudy Giuliani on Lou Dobbs’s show on Fox Business. Fox Business/YouTube

Experts say those types of videos may help Fox News and Newsmax limit the damages they’d receive if they lose a lawsuit, but would be unlikely to save them from the merits of a case. According to Schauer, the damages could potentially be limited to the dates between when the media organization first aired their falsehoods to when they issued walkbacks.

“Newsmax has published and aired on numerous occasions that Dominion was challenging the claims made by President Trump and his attorneys,” Newsmax spokesperson Brian Peterson told Insider.

Media organizations “have a responsibility to investigate” allegations and cannot simply report baseless allegations just because someone has made them, Clay Calvert, a press freedom expert at the University of Florida, said.

The defendants in Dominion’s lawsuits may argue that they sincerely believed the allegations and made them in good faith. Experts say that a media ecosystem filled with falsehoods would not be a good enough defense – especially given the mountains of court cases and statements from election officials showing that the election was secure.

“A jury will have to judge by a standard of what a reasonable person would consider true,” Calvert said. “Being stuck in a media ecosystem is not an excuse. Just because Lou Dobbs may be wrong and never see truth doesn’t mean it’s acceptable.”

© Paras Griffin/Getty Images Georgia Secretary of State Brad Raffensperger, who oversaw three audits of his state’s election showing the results were legitimate. Paras Griffin/Getty Images

Established news organizations, including Insider Inc., typically have legal trainings for their journalists and multiple levels of editorial oversight to ensure that the stories they publish are accurate and fair.

Dominion also sent letters to individual hosts on the media networks, including Fox News’s Sean Hannity, Lou Dobbs, and Maria Bartiromo, and Newsmax’s Greg Kelly.

Experts said that even if Dominion didn’t ultimately sue individuals and media organizations it sent letters to, they would still serve as a way to stop “ongoing” defamation.

Indeed, talk of Dominion and Smartmatic had largely receded from Fox News’s coverage since late December. Tweets from hosts like Lou Dobbs making the same claims have remained up, and Fox News opinion hosts and guests have continued to push the baseless allegation that election results may have been falsified.

Fox News declined to comment for this story. A representative directed Insider to a Fox News segment from late November when Tucker Carlson casts doubt on Sidney Powell’s claims and a separate interview from host Eric Shawn with a Michigan University engineering professor who says there’s no evidence of wrongdoing from Dominion.

© Provided by Business Insider A pro-Trump mob breaks into the US Capitol on Wednesday in Washington. Win McNamee/Getty Images

Figures who are demonized by right-wing media (like Hillary Clinton) may choose not to sue over false claims because they do not want to amplify such claims.

But a lawsuit against Fox News, if successful, could be hugely damaging, experts speculated. Unlike OAN or Newsmax – which Trump allies have considered buying – Fox News is extraordinarily valuable. Its parent company, the Fox Corporation, made more than $12 billion in revenue in its fiscal year 2020.

Koppelman said a jury might find that Fox News’ conduct “was so reprehensible that punitive damages are in order.”

“Depending on how this lawsuit works out, this lawsuit could considerably increase the value of Dominion,” Koppelman said.

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