Accountability is a rare thing in modern American politics, and it’s been dismally lacking in the wake of January 6. Though hundreds of Capitol rioters have been charged over the last eight months, the Senate declined to convict former President Donald Trump earlier this year for inciting them to attack Congress in the first place. Republican lawmakers who tried to toss out the election results retain their seats and committee memberships. And thanks to the filibuster, those same lawmakers blocked the creation of an independent January 6 commission to find out exactly how it happened (the Democrats went ahead and launched their own inquiry).
That gnawing lack of consequences made it more satisfying to watch a federal judge—and a Trump appointee, no less—provide a bare measure of them earlier this week. U.S. District Court Judge Carl Nichols rejected a motion to dismiss a defamation lawsuit filed by Dominion Voting Systems against three top Trump allies earlier this year. Though the courts are perhaps the least well-equipped actors in our constitutional order to provide some accountability for the gravest attack on American democracy in living memory, they may now be the only substantive path to do so.
Those three Trump allies—MyPillow CEO Mike Lindell and lawyers Rudy Giuliani and Sidney Powell—spent the weeks and months after Election Day accusing Dominion of manipulating vote totals and corrupting the election. State and federal officials have unequivocally said there is no evidence of serious or widespread fraud in last year’s presidential election. But the conspiracy theories, supposedly backed by evidence that either never materialized or failed to prove their claims, helped persuade millions of Trump supporters that President Joe Biden’s victory was illegitimate and fraudulent.
Dominion claimed that those false allegations had done serious damage to the company and its employees. Trumpworld’s conspiracy theories had jeopardized Dominion’s ability to secure future contracts with state and local governments, the company said, and unleashed a torrent of vitriol against its executives and workers, some of whom faced stalking and death threats. In January and February, the company filed lawsuits claiming roughly $651 million in damages from Lindell, Giuliani, and Powell. All three defendants quickly sought to dismiss Dominion’s complaint.
Lindell, Giuliani, and Powell entered the litigation with some advantages. The First Amendment generally makes it difficult to pursue successful defamation claims in American courts. To overcome the free speech concerns, it’s not enough just to lie about a person or company; someone has to do so with a reckless disregard for the truth and “actual malice.” This isn’t an insurmountable barrier, but it’s a high enough one that defamation lawsuits are relatively rare in the United States, especially compared to countries like Australia and the United Kingdom.
Powell publicly insisted for months that she had evidence and expert testimony to support her claims about Dominion’s alleged malfeasance. But when she sought to dismiss the lawsuit earlier this year, she asserted that “no reasonable person” would have taken her comments as statements of fact instead of opinion. (Statements of opinion are generally harder to challenge as defamatory than statements of fact.) Her remarks, Powell argued, were made in the context of a “bitter and controversial” presidential election and as an “attorney-advocate” expressing her legal and political views.
Nichols was unconvinced. “As an initial matter, there is no blanket immunity for statements that are ‘political’ in nature,” he wrote. “As the [D.C.] Court of Appeals has put it, the fact that statements were made in a political ‘context’ does not indiscriminately immunize every statement contained therein. It is true that courts recognize the value in some level of ‘imaginative expression’ or ‘rhetorical hyperbole’ in our public debate. But it is simply not the law that provably false statements cannot be actionable if made in the context of an election.”*
As to whether Powell was expressing an opinion or making a factual assertion, Nichols made clear that the evidence was on Dominion’s side. “The question, then, is whether a reasonable juror could conclude that Powell’s statements expressed or implied a verifiably false fact about Dominion,” he wrote. “This is not a close call. To take one example, Powell has stated publicly that she has ‘evidence from [the] mouth of the guy who founded [Dominion] admit[ting that] he can change a million votes, no problem at all.’ She told audiences that she would ‘tweet out the video.’ These statements are either true or not; either Powell has a video depicting the founder of Dominion saying he can ‘change a million votes,’ or she does not.”
Though Nichols did not explicitly say that Powell was consciously lying to the public about what she could prove, his summary of the available evidence strongly points in that direction. It’s worth noting that when considering a motion to dismiss, judges are required to interpret the available facts in the most favorable light for the plaintiff. But this doesn’t appear to have been a huge leap for Nichols. He hammered Powell for repeatedly making grandiose claims, insisting she had supporting evidence, then providing either something unconvincing or nothing at all.
Perhaps the most damaging portion for Powell came when discussing whether her actions could fall under the actual-malice standard. Nichols noted that Dominion had “alleged not only that Powell’s claims are so inherently improbable that only a reckless person could have believed them, but also that she deliberately ignored the truth in favor of relying on facially unreliable sources, intentionally lied about and fabricated evidence to support a preconceived narrative about election fraud, and did so to raise her own public profile and make a profit.” Those are strong allegations, and Dominion provided strong evidence to support them.
“Powell again faces an obvious hurdle in the fact that she has never produced (nor mentioned in any sworn affidavit) the video of Dominion’s founder that she claims to possess; a reasonable juror could conclude that Powell has not produced the video because she doesn’t have it,” Nichols wrote. He also dissected the purported affidavits and expert testimony that Powell offered while disputing the election. Dominion implicitly accused Powell of writing the affidavits she attributed to anonymous sources. “Indeed, certain sections in two of the declarations are almost completely identical,” Nichols noted.
Powell’s experts proved to be even less persuasive. A court concluded that one expert had previously defrauded donors by misrepresenting her experience. Another expert declared in a sworn statement that he had found evidence of fraud in a Michigan county that doesn’t actually exist. Yet another expert had been spurned by another court for their “sheer unreliability.” And yet another expert had “publicly claimed that George Soros, President George H.W. Bush’s father, the Muslim Brotherhood, and ‘leftists’ helped form the ‘Deep State’ in Nazi Germany in the 1930s—which would have been a remarkable feat for Soros, who was born in 1930,” Nichols dryly observed.
Lindell fared no better. His argument largely centered on the actual-malice standard. “Like Powell, Lindell correctly notes that allegations of a defendant’s ill will or profit motive, without more, do not satisfy the actual malice standard,” Nichols acknowledged. “But again, Dominion has alleged more.” The company not only argued that Lindell was intentionally and recklessly lying about its voting machines but that he did so for personal gain. Nichols noted that Dominion “has alleged numerous instances in which Lindell told audiences to purchase MyPillow products after making his claims of election fraud and providing MyPillow promotional codes related to those theories.” As a result, Nichols allowed the complaint against Lindell to proceed.
What about Giuliani? He sought to dismiss Dominion’s lawsuit on what Nichols described as “very different grounds.” Giuliani made an arcane technical argument on the alleged injuries suffered by Dominion’s subentities and the specificity of those alleged injuries, which Nichols readily rejected. It’s unclear why Giuliani fought Dominion’s lawsuit on these grounds instead of the ones chosen by Powell and Lindell. But the end result remains the same: The lawsuit can proceed.
What’s satisfying about the ruling isn’t necessarily that it’s a setback for Powell, Lindell, and Giuliani. It’s that Nichols, without stepping outside his judicial role, left little doubt that Trump’s allies dishonestly misled the public about the legitimacy of the last election. His decision is nowhere near enough to hold Trump and his allies accountable for their apparent plot to overthrow the republic—not even an eventual Dominion triumph in this case would achieve that. But with the executive and legislative branches so far unwilling or unable to do more, Americans will have to take small victories where they can get them.
* A previous version of this article misidentified the appeals court referenced in the Nichols’s opinion.
