The Latest News About Lawsuits and Subpoenas

There’s an update in the Smartmatic and Dominion voting machine lawsuits against, um, a bunch of people. Here’s a list of who is being sued. And here’s the update, from the same source.

Voting company Smartmatic’s defamation lawsuit against Fox News and several of its anchors can move forward, a judge ruled Tuesday, also reinstating some claims against attorney Rudy Giuliani, as Smartmatic and rival company Dominion Voting Systems pursue a dozen defamation lawsuits over baseless election fraud claims about their voting machines.

This article at NPR will catch you up on a couple of the suits, which are being heard by Delaware Superior Court Judge Eric M. Davis. I found this bit especially interesting.

Like Dominion, Smartmatic was the subject of false claims that its software had switched Trump votes to Joe Biden. Those claims were broadcast on Newsmax, Fox News and elsewhere.

Davis earlier this month denied Newsmax’s request to toss out Smartmatic’s defamation claim. Davis ruled that the facts pleaded by Smartmatic lead him to “reasonably infer” that Newsmax’s airing of stolen-election claims was reckless enough to meet the high legal bar required for defamation.

“Newsmax either knew its statements regarding Smartmatic’s role in the election-fraud narrative were false, or at least it had a high degree of awareness that they were probably false,” the judge stated.

Awhile back I wrote about the “actual malice” and “reckless disregard for the truth” standards from the old New York Times v. Sullivan (1964) case. Sullivan basically protects news outlets from being sued into bankruptcy for reporting negative things about politicians and other people of public interest. Very briefly, even if, say, a newspaper made a mistake and reported something that is false about a public figure, the public figure cannot collect damages unless he can prove the reporting was done with “actual malice” or “reckless disregard for the truth.”

These are both high bars, but they shouldn’t be insurmountable. Fox and other right-wing news outlets that pushed the stories about voting machines “stealing” votes from Donald Trump are arguing that they were just covering both sides. Trump and his people were making the accusations against the voting machine companies, which is a newsworthy thing, and we’re just reporting what they are saying. It’s not our responsibility to fact check them. 

Just to be clear, here’s an example of the kind of thing being shown on Fox News after the 2020 election.

Fox showed Dominion’s disclaimers, but this was not really an equal presentation of “both sides.” And as I wrote in the earlier post, this “both sides” standard has done a huge disservice to the American public for years. “Covering both sides” has meant, for example, pitting a climate scientist and a climate change denier against each other in a studio while a moderator simply sits there and offers no editorial context. There’s been less of that in recent years than there was, say, during the George W. Bush years (remember Crossfire?). But it still happens way too much. And what Jeanine Pirro is doing in that video is not journalism, either. Allowing a partisan hack to present unsubstantiated nonsense without challenging it robustly needs to qualify as “reckless disregard for the truth.”

This suit is complicated, IMO, by the fact that the litigant voting machine companies are not public office holders but businesses, and the defamation on the part of right-wing news must certainly have hurt their ability to do business. Plus many of the claims being made about Dominion and Smartmatic, such as alleged ties to the government of Venezuela, could be debunked via a ten-minute Google search. It’s not that hard.

Anything calling itself “journalism” should be required a certain amount of due diligence to fact check or at least acknowledge that facts are not known. It’s never perfect. News reporting is a messy business, and even the best reporters will get facts wrong sometimes. But I don’t think the Sullivan standards mean that no effort need be made at all.

In other legal news, MSNBC reported last night,

The special counsel investigating Donald Trump’s handling of classified documents is seeking to compel a lawyer for the former president to testify before a grand jury, a source familiar with the matter said.

Prosecutors allege in a sealed filing that they have evidence that some of Trump’s conversations with the attorney were in furtherance of a crime, the source said.

In a sign of an aggressive new legal strategy, first reported by The New York Times, the source said special counsel Jack Smith has asked a judge to allow prosecutors to invoke what’s known as the crime-fraud exception, which would let them sidestep protections afforded to Trump lawyer Evan Corcoran through attorney-client privilege.

I like the furtherance of a crime part. Evan Corcoran, of course, is the lawyer who allegedly told Christina Bobb to sign a statement last June that all of Trump’s White House documents had been turned over to the proper authorities. Steve Benen provides background.

Finally, we get to Mike Pence, who is fighting a Jack Smith subpoena by citing the “speech and debate” clause from the Constitution. Article I, Section 6, Clause 1:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Pence, of course, was neither a Senator nor a Representative. But Pence is so concerned about Separation of Powers that he refused to speak to the January 6 committee because they were legislative and he was executive. Now he’s flipping that around and saying that he was legislative while Jack Smith works for the executive. But given the corruption of our courts, few people are willing to come out and say Pence couldn’t get away with this.

5 thoughts on “The Latest News About Lawsuits and Subpoenas

  1. Somewhere, in one of my many unorganized files, is a peer reviewed journal research paper on the results of allowing "the other side" to have its say.  As I recall the results showed that doing so tended to add equal status to the view of the outlying opinion well beyond the status of argument.  Yes, your point about the disservice caused by "both sides" standard is well deserved.  I am sure a minority think Fox is unbiased, but its bias is obvious to most.  Here it lent apparent credibility to very damaging mistruths knowing full well that its viewers would accept them and act upon them as fact.

  2. The Senators and Representatives shall receive a Compensation for their Services…

    They shall…

    starts the next sentence which enumerates the rights and privileges.  

    I am not a legal person but does not Article I, Section 6, Clause 1 specifically confer those rights and privileges upon paid senators and representatives?  Do Vice Presidents receive additional compensation for being 'President of the Senate'?

    But given the corruption of our courts, few people are willing to come out and say Pence couldn’t get away with this.

    It is a frightening reality that the Roberts/Alito Court is going to control Supreme Court rulings for at least the next 15-20 years.  Six Federalist Society members with five of them being Dominionist Catholics.


  3. Look, the first hint to (Dumb)FUX suits that they were making a HUUUUGE boo-boo should have been when the hosts invited an old Fascist drunk like Rudy, and a whackadoodle legal loon (also a likely drunk) like Sidney Powell, on to spew utter nonsense.

    Objectively provable nonsense!  

    You advertise that you're a news network!  Investigate!!!

    The only dumber decision would have been to invite the guy in a tri-corner hat who's known for shrieking gibberish into a bullhorn from a soapbox in Washington Square Park, to opine on prime time!

    Rudy & Sid were one notch below that guy from the park on the "Krazy Skale!"

    Or, come to think about it, maybe not.

    And as for former veep Mike "The Dense" Pence, you can't claim to be a desert topping when bad floor wax is being investigated, and then a few months later when they're investigating bad deserts, claim you're a floor wax product!

    You wrote a tell-all book about your adventures cowering in a garage, hiding from the MAGA mob, fer Keerist's sake, you near Albino non-entity!!!

    Now go testify, you amoral coward.

    WWJD (What Would Jesus Do)?!?

    Not what you're doing, you hack!!!!!



  4. The main 'thing' about the Smarttec and Dominion lawsuits is the effect it will have if they win on the media, especially Fox. I name Fox because they are the big player in right-wing propaganda. A big-bucks award after a high-profile trial will cause all producers of all shows to be schooled on the new rules re presentation of statements of "fact" that are obviously false. The only way Fox escapes liability is for the host to push back and question the validity or support for an allegation. 

    If the lawyers for Fox are empowered to yank the leash of the big show hosts, Carlson and Hannity, for segments that aren't tethered to reality it could tamp down the degree of desperate crazy. It's been reported (NPR) that when Hannity was deposed for the suit, he said he  never believed for one second the claims the election was stolen.

    Conservative media pushed a story they knew was false because it sold well to their audience, NOT airing the claims, however false, would have hurt profits. (The sad truth is that democracy was hurt worse than either company who brought suit, but the voters don't have 'standing' in a suit. So we must depend on Smartec and Dominion.) To put this in perspective, couple this with Alex Jones getting creamed As long as the courts deny Jones bankruptcy to expunge the debt, Jones is at the mercy of his lawyers, trying to hide money from his creditors. 

    To step back, the audience wants red meat every day. The need to be outraged becomes an addiction – and the viewer needs his fix. Limbaugh tapped into the well of resentment and he created the format that Fox and Alex Jones followed. The formula may become too expensive in legal costs if these suits prevail.

    Corcoran is in a similar bind – I hope. The details of the sealed filing are not known. IF Smith has evidence that Corcoran and Trump cooked up a scheme of Obstruction where Corcoran would draft a guarantee that everything had been returned, knowing it to be false, tried to sidestep his criminal liability by having a different lawyer sign who was not aware of the obstruction. That level of duplicity will get you disbarred for life. After you get out of jail.

    I'd love to know how solid the evidence against Corcoran is. My dream is to see Trump's lawyers (including Rudy) flip on him and testify against Trump. (Yes, I'm delusional, but I'm happy.)

  5. "They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

    This is not difficult.  And VP P… should be ridiculed if he tries this. The question of whether he qualifies for "protection" by the "speech and debate clause" is absurd, and would be even if he were a sitting Senator.  

    1) Members of the respective Houses are protected only against Arrest during their attendance of a session, or during travel to/from same.  A subpoena is not an Arrest. Article I, Section 6, Clause 1 provides no immunity at all from the legal requirement to comply with a subpoena.

    2) As for "Speech and Debate", there is a Constitutional prohibition of and member of the House or Senate being questioned regarding the words that they have spoken in the applicable chamber, unless that questioning be done in the chamber in which the words were spoken.  A conversation with any member of the Executive Branch , held outside the applicable chamber would not be protected. Additionally, IMO, a conversation between two sitting senators held outside the Senate Chamber would not protect either Senator from responsibility to comply with a subpoena and answer questions about that conversation. (IANAL) My reasoning for this last statement is this: The clause explicitly states "for any Speech or Debate in either House"…  I'll even grant a judgment that concludes committee meetings and meetings among Senators in a Senator's official office would meet the requirement of in which circumstances questioning about "speech or debate" cannot occur outside the proceedings of the applicable House.  Even given that, the FVP's rationale for defying a subpoena does not reflect respect for the rule of law.


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