A federal judge ruled on Wednesday that a major defamation case against key boosters of former President Donald Trump’s false claims of election fraud can continue forward. This is a win not just for the plaintiff, Dominion, a corporation that sells voting machines and software, but also for the American public. It’s looking increasingly like defamation suits could be our best bet for holding election conspiracy theorists accountable and for deterring future false claims of election fraud.
The defendants in the case are Sidney Powell and Rudy Giuliani, attorneys who promoted falsehoods about the 2020 presidential election, and Mike Lindell, founder of MyPillow and a frequent peddler of election conspiracies. All three are now stuck defending themselves against Dominion’s defamation suit thanks to the judge’s decision not to toss the case as they requested.
The suit, very generally, involves claims that Powell, Giuliani and Lindell made about Dominion rigging the 2020 election. To succeed in its defamation claim, Dominion must show that Powell, Giuliani and/or Lindell expressed or implied a false fact (as opposed to opinion) about Dominion and that they knew the statements were false or that they recklessly disregarded the fact that the statements were false.
Judge Carl Nichols who presided over the case is no liberal darling — he was appointed by none other than Trump himself. And the disdain that the federal judge showed for the statements made, and defenses waged by Powell, Giuliani and Lindell was palpable. A quick read of the 44-page opinion reveals a healthy dose of judicial derision.
Nichols quickly rejected Powell’s first defense: that a reasonable person could not believe many of her comments about the 2020 election were statements of fact. It is “simply not the law that provably false statements cannot be actionable if made in the context of an election,” Nichols wrote. Put another way, if you lie about a person or other legal entity, you can be sued for defamation, even if the lie is made about an election.
It’s worth lingering on Powell’s claim that nobody should have believed what she was saying were actual facts. On the question of whether a reasonable juror could find that Powell expressed or implied a false fact about Dominion, Nichols concluded that this “is not a close call.” Some of Powell’s greatest hits soon followed, like her claim that she could “hardly wait to put forth all the evidence . . . on Dominion, starting with the fact it was created to produce altered voting results in Venezuela for Hugo Chávez.”
Nichols then proceeded to ruthlessly reject Powell and Lindell’s argument that Dominion’s allegation failed to show that the defendants knew — or recklessly disregarded — that the purportedly defamatory statements were false. Powell’s defense is that she relied on other people’s sworn declarations when she made her allegedly false statements. Similarly, Lindell’s defense was that he had “evidence” (Nichols’ scare quotes, not mine) to support his alleged lies.
The disdain that the federal judge showed for the statements made, and defenses waged by Powell, Giuliani, and Lindell was palpable.
Again, here comes Nichols with the legal smackdown — “there is no rule that a defendant cannot act in reckless disregard of the truth when relying on sworn affidavits — especially sworn affidavits that the defendant had a role in creating,” he wrote regarding Powell’s claim. And as for Lindell’s position: “[A] reasonable juror could conclude that the existence of a vast international conspiracy that is ignored by the government but proven by a spreadsheet on an internet blog is so inherently improbable that only a reckless man would believe it.”
Nichols also rejected Giuliani’s argument, which said the case should dismissed because Dominion didn’t ask for the right type of damages to recover in the suit. There is something truly cathartic about reading a jurist, whether appointed by a Republican or a Democrat, reject Powell, Lindell and Giuliani’s arguments like a raptor dismantling its prey. But more important than the catharsis (and schadenfreude), Nichols’ decision is right on the law and emphasizes the importance of defamation cases as a tool to deter behavior that could undermine not just individual elections, but our faith in elections themselves. In brief: The judiciary is holding. That the opinion, concerning whether some of Trump’s biggest public supporters can be sued for defamation, was written by a Trump appointee is hugely important. It shows us that many of the federal judges elevated in the last four years are not in fact just political actors in robes. Instead, they are jurists whose job it is to apply the facts of each case to the law and make a determination, regardless of whether or not it is bad for the person who appointed them to their venerated position. Respect for judges, who make up one of our three branches of government, is vital to maintaining respect for government in general. Dominion’s defamation suits may be the best legal avenue to hold Powell, Lindell and Giuliani accountable for what appears to be a vast web of lies about the 2020 presidential election. Dominion’s case is already successful in that they’ve made it to a trial on the merits. Should they win outright, the case could serve as a massive warning against the next group of liars who seek to undermine our elections.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
