That’s a $1.3 Billion question.

Comment from Peter Saxon
 
In America, the first of the court cases against those who stormed the Capitol on January 6 are being heard.
 

We were only following orders…

 
Defence lawyers are claiming that their clients fully believed that they were all heroes – doing their patriotic duty in answering the call of their Commander in Chief, Donald Trump, to win back the presidency that was stolen from them in a rigged election. 
 
Of course, it was all a Big Lie.
 
The irony is, that every Trump loyalist who uses this defence to mitigate their own culpability is throwing their leader under a legal bus when he faces trial accused of incitement. As much as his defence team might claim he never actually told the crowd to “storm the capitol,” those that did the storming are providing sworn testimony that that’s what they heard. Or that’s what they clearly understood him to say.
 

If you tell a lie big enough and keep repeating it, people will eventually come to believe it.  – Adolf Hitler, Mein Kampf.

 
Next week, Trump will face such a trial in the U.S. Senate where he will almost certainly be acquitted. Not because the evidence against him is weak, but because not enough Senators will bother to examine it since the outcome is all but a foregone conclusion. 
 
Of the 17 Republican Senators needed to cross the floor and vote with the Democrats for the super-majority needed to convict, only five have indicated that they’re willing to do so. The rest, having carefully weighed what’s best for for the nation v. what’s best for their careers, will vote to dismiss.
 
To be fair, the Republicans do have a reasonable argument against putting Trump on trial in the Senate. To his ardent supporters (polls estimate 30-50 million) it will be seen as just another witch hunt. If Trump loses, his fans will call it a kangaroo court, blame the “deep state” and simply fold the reasons for the loss into their already convoluted web of conspiracy theories. 
 
If he wins, it will be another loss for the Democrats, which Trump will extol as a complete exoneration. A trial will only divide the nation further.
 
The Democrats argue that if the events of January 6, and Trump’s role in trying to overturn the result of a certified election, isn’t a high crime and misdemeanour worthy of censure, then what is? The president must be brought to account, otherwise this this toxic partisan political discourse that’s  tearing America apart, will become the norm and “truth” itself will no longer carry any weight in politics. Kids will learn that lying is acceptable as an effective pathway to success.
 
Either way, any result of a Senate trial will be seen by many Americans, on both sides, as a political stitch-up, light on credibility.
 
But the game is far from over for Trump, his enablers and, in particular, for the media that carried and amplified his Big Lie about the “stolen election.” 
 
An organisation called Dominion Voting Systems and another named Smartmatic have launched massive defamation actions against key members of the Trump Campaign, Rudy Giuliani and Sidney Powell, seeking US$1.3 Billion (A$1.8 Billion) in damages from each of them. 
 
Dominion has flagged that these two are merely the lowest of the low hanging fruit that maliciously maligned their company’s good name by falsely claiming, among many other things, that it programmmed its vote counting machines to switch millions of votes for Trump to votes for Biden, and thereby cheat the president out of a second term.
 
Dominion, along with Smartmatic have already issued scores of legal notices to media organisations and their commentators that have helped the Trump campaign spread their conspiracy theories on radio, television, online and through social media to “cease, desist, retract… and retain documents.” Ominously, all these letters warn the recipients: “litigation is imminent.” 
 
Unlike the Senate trial, this litigation will be tried in civil court, presumably on a level playing field with a jury that’s acceptable to both sides, and a judge that will rule on the evidence before them and not along party lines. 
 
In civil court, even the truth might get a fair hearing.
 

All it takes for evil to succeed is for good people to say, it’s just business. Alan Shore, Boston Legal season 2

 
And that’s what should worry those media outlets that sacrificed truth for audience share.
 
All up, Dominion expects to sue around 150 individuals and media organisations.
 
Individuals who’ve received letters from Dominion and Smartmatic lawyers since last December include Giuliani, who has his own daily radio show on New York’s TalkRadio 77, as well as America’s number one syndicated radio talk show host Rush Limbaugh (left). You can read the letter to Limbaugh, similar to the others, here.
 
Also in Dominion’s firing line is Sean Hannity who, on top of his Fox News show, boasts a widely networked radio program as do Mark Levin, Hugh Hewitt and Glenn Beck among many others.
 
The letters from defamation attorneys Clare Locke routinely begin “We write regarding patently false accusations that Dominion has somehow rigged or otherwise improperly influenced the recent U.S. Presidential election – accusations that you have featured on your programming and that you yourself have also echoed.”

The letter goes on to say, “cease and desist making defamatory claims against Dominion” and “retain all documents relating to Dominion and your smear campaign against the company” and warns that “litigation regarding these issues is imminent.” 

Among all the talking heads who’ve received such letters, there is one notable exception, Fox News commentator Tucker Carlson – one of Trump’s most enthusiastic cheerleaders, yet one of the few conservative hosts to push back on Sidney Powell’s claims of vote rigging by Dominion and Smartmatic.

Carlson had invited Powell to appear on his show but asked her to send over some of the “overwhelming” evidence she’d been claiming to have in her possession so he could examine it. 

“She never sent us any evidence, despite a lot of requests – polite requests – not a page,” the Fox News host said. “When we kept pressing, she got angry and told us to stop contacting her.”

Carlson is one of only a few likely to avoid litigation because he chose to put journalistic integrity ahead of his personal political preference.

Warning letters from Dominion and Smartmatic’s attorneys have also been sent to corporations such as, Fox News and Newsmax along with other conservative television networks. 
 
Unlike Giuliani and Powell, who continued to disseminate misinformation after receiving their letters, Fox and Newsmax took the threat of litigation seriously and quickly went into damage control, broadcasting a series of “clarifications” that stated that there was no evidence to support that Dominion or Smartmatic, had in any way tampered with election votes, but the retractions fell well short of issuing a meaningful apology.
 
While these retractions from Fox and others may help to reduce the amount of damages imposed by the court, it’s unlikely to dissuade Dominion and Smartmatic from demanding a full apology, broadcast in a schedule that is comparable to the air-time and prominence that has been provided to the smear campaign.
 
Theoretically, a court could force Giuliani and Powell to appear on Fox and other outlets several times a day over a couple of months, humbly apologising for up to three minutes at a time. It would be a content director’s worst nightmare.
 
As late as yesterday, anyone could still download podcasts of Giuliani blaming Dominion for Trump’s election loss from his radio show’s home page  – although, at time of publication, the podcasts in question seem to have been deleted.

Giuliani seems to have no intention of capitulating. He was on the front foot in a statement to media: “Dominion’s defamation lawsuit for $1.3 billion will allow me to investigate their history, finances, and practices fully and completely,” he said
 
“The amount being asked for is, quite obviously, intended to frighten people of faint heart. It is another act of intimidation by the hate-filled left-wing to wipe out and censor the exercise of free speech, as well as the ability of lawyers to defend their clients vigorously.
 
“As such, we will investigate a countersuit against them for violating these constitutional rights.”
 
In the 107 page official Complaint lodged in the United States District Court in the District of Columbia, Dominion (the plaintiff) pleads:
 
“For Dominion — whose business is producing and providing voting systems for elections — there are no accusations that could do more to damage Dominion’s business or to impugn Dominion’s integrity, ethics, honesty, and financial integrity,” the lawsuit says.
 
“Giuliani’s statements were calculated to — and did in fact — provoke outrage and cause Dominion enormous harm.”

That’s why John Poulos, the chief executive officer of Dominion, told media he had no interest in settling the case out of court. He needs the case to proceed with all the facts revealed – along (he hopes) with a verdict in his favour to have any chance of clearing Dominion’s name.

Here’s why. Although the election officials in 23 states, both Republican and Democrat, that use Dominion’s voting machines have stated no issue with their accuracy, so many voters now distrust the Dominion brand that those officials have been forced to review their contracts with the firm, fearing that every election going forward will end in controversy. 

The court Document states:

As a result of the viral disinformation campaign, Dominion has been unfairly subjected to the hatred, contempt, and distrust of tens of millions of American voters, and the elected officials who are Dominion’s actual and potential customers have received emails, letters, and calls from their constituents demanding that they avoid contracting with Dominion or using Dominion machines. As a result, elected officials, insurers, and potential investors have been deterred from dealing with Dominion, putting Dominion’s contracts in more than two dozen states and hundreds of counties and municipalities in jeopardy and significantly hampering Dominion’s ability to win new contracts. 

The truth is the greatest enemy of the state – Adolf Hitler – Mein Kampf

 
 
The rest of that earlier quote from Hitler about the Big Lie (often wrongly attributed to his propaganda chief, Josef Goebbels) goes: “The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.”
 
The truth also happens to be the best defence against a defamation suit. Apparently you can yell “FIRE!” in a crowded cinema, if there really is a fire.
 
In court, Dominion’s lawyers will call Giuliani’s bluff. Who knows, he may be holding all the aces. But more likely he’s got a handful of bupkis. 
 
Of course, he’ll welch on the bet because he can’t pay 1.3 billion or anywhere close to it – probably not even an amount the judge orders. He’ll likely declare bankruptcy and be disbarred. But he won’t be able to escape making a full and public apology and declare that he had zero proof of Dominion and Smartmatic changing votes.
 
If, and it is a big if, it all goes Dominion and Smartmatic’s way, then they’ll likely go after entities that do have funds and large assets. And if those cases are successful, Dominion could end up owning a large media business.
 

What then of Trump? 

 
Asked if Dominion would take legal action against Trump himself, Dominion’s counsel replied, “We’re not ruling anybody out.”
 
 My guess is that they’ll wait to see the outcomes from proceedings against Giuliani and Powell before going after Trump. If they win those cases, then it will have set precedents that will make it much easier to pursue the other 150 or so media organisations and individuals on their list, and even Trump himself. If they lose, they pretty much lose everything.
 

Fooling people is easier than convincing them that they’ve been fooled. – Mark Twain

 
Ultimately, Dominion has little choice other than to pursue Trump because unless he is made to personally admit to his supporters that the election was not stolen and that he was wrong about Dominion rigging the vote and apologises for the misinformation campaign that he approved and led, millions of Americans will go to their graves with no faith in Dominion and, more importantly, no faith in their own democracy – a democracy based on a cornerstone of free and fair elections.
 
And that would not just be a tragedy for America, but for Australia and every other Western Democracy in the world.

Note: I highly recommend you read the  107 page official Complaint lodged by Dominion. For a legal document it’s actually quite easy to read and, for the most part, quite riveting.

Peter Saxon

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