Among many significant revelations coming out of the hearings of the January 6 select committee is information concerning Dominion Voting Systems. Former senior U.S. officials testified that they privately informed former President Donald Trump that allegations against Dominion had no merit and so did an internal Trump campaign report, yet Trump continued to make such statements against Dominion in public.
Dominion has brought defamation lawsuits totaling well over a billion dollars against Trump associates – but not Donald Trump himself, or at least not yet.
I asked leading legal experts about the potential strength of Dominion bringing a defamation suit against the former president. I asked each of them independently. Their responses are below in full.
Almost every expert said a defamation suit brought by Dominion against Trump would be very strong, but one expert raised concerns about the practicality of such a lawsuit and another raised issues of presidential immunity. As shown below, I wrote the prompt to allow respondents to bracket the immunity question or address it if they preferred. We may revisit that issue in future. In the meantime, readers may be interested in the recent DC district court ruling that Trump did not have immunity from civil suits involving his rally speeches and other political activities to secure incumbency between Nov. 2020 and Jan. 2021. Trump has also continued to make public statements since leaving office — repeating some of the same allegations as before but it appears with reference to “voting machines” rather than Dominion by name. That apparent change came after Dominion filed the first of its defamation lawsuits on Jan. 8, 2021.
Below is the prompt I provided each expert and their responses.
Dominion Voting Systems has brought defamation lawsuits against several defendants for hundreds of millions of dollars. The company has achieved initial successful court decisions such that the parties can now proceed to discovery. Cases that have reached this stage of litigation include Dominion’s suits against Rudy Giuliani, Sidney Powell and Mike Lindell/My Pillow (news report; court’s denial of motion to dismiss); Patrick Byrne (news report; court’s denial of motion to dismiss); Newsmax (news report; court’s denial of motion to dismiss); and Fox Corporation (news report; text of court’s denial of motion to dismiss).
Just Security recently published a Chart that, among other things, includes a comparison of (a) what senior U.S. officials and Trump campaign officials privately told President Donald Trump about false or otherwise baseless claims against Dominion in the 2020 election and (b) what Mr. Trump said publicly about Dominion between Nov. 3, 2020 and January 6, 2021 (see especially section 10 of the Chart). The evidence of the private communications is drawn primarily from recent testimony and other documents produced by the January 6th House Select Committee.
Based on the information in the Chart and any other publicly available information, do you think Dominion would have a strong case of defamation if the company decided to sue Mr. Trump? In addressing this question, please feel free to assume that Mr. Trump would not have any immunity from a civil suit brought by Dominion for defamation.
Floyd Abrams has practiced First Amendment law for the past half-century, taught at Yale Law School and Columbia Law School and Journalism School and is the author of three books about the First Amendment of which the most recent is “The Soul of the First Amendment”:
Assuming that there is no immunity for Mr. Trump for statements he made while President, Dominion would have an extremely powerful libel case against him. Statements Trump made about the company were extraordinarily defamatory, provably false and enormously harmful. So what defense might he have?
New York Times Co. v Sullivan and later libel cases do offer a defense for false speech about public people or entities—which Dominion may be held to be—if it was uttered without what the Court has characterized as “serious doubt” of its truth or a “high degree of awareness” of its probable falsity. It is a subjective test which focuses on the state of mind of the speaker and given the apparent absence of any substantive support for the charges made by Trump, I would think his chances of success would be minimal.
There is, of course, a question that might arise if such a defense were offered which may be all but limited to Trump himself. Does he have any concept of truth as that term is used in our society? Or might a jury be persuaded that he believes everything he says because he has no comprehension of what truth and falsity mean? It says much about our former President that such a possibility even must be raised.
John Goldberg, Carter Professor of General Jurisprudence, Harvard Law School:
Lawyers for Rudy Giuliani, Mike Lindell, and Sidney Powell have made various arguments why Dominion’s defamation claims against their clients should be thrown out of court. For example, they have maintained that statements about Dominion’s voting machines being rigged or manipulated were mere expressions of opinion, not statements of fact, and as such cannot be the basis for defamation liability. They have also argued that Dominion has made no credible allegations that these defendants knew they were uttering false statements or acted with reckless disregard as to possible falsity, as required by the “actual malice” standard of New York Times v. Sullivan. Courts have so far rejected these arguments, concluding that Dominion has adequately alleged that each of these defendants made false and defamatory statements of fact about Dominion and that they did so with actual malice. Absent settlements, Dominion will have to prove these claims, but it seems quite likely that it will be able to produce enough evidence that a jury could hold one or more of these defendants liable to pay Dominion significant money damages.
Applying the same standards to a claim by Dominion against Mr. Trump, it seems almost certain that the company can credibly allege that he made statements about Dominion that are defamatory, and can further credibly allege that these statements were false and made with actual malice. As noted above, actual malice encompasses reckless disregard for truth. William Barr has testified to Congress that, in his capacity as U.S. Attorney General, he told Mr. Trump in no uncertain terms that the claims about Dominion’s voting machines being rigged had no merit (and indeed were “idiotic”). By itself, this statement might suffice to establish recklessness, and the case for recklessness is even stronger given other information available to Mr. Trump that cast grave doubt on the validity of his statements.
Nonetheless, for reasons having nothing to do with the merits of Dominion’s defamation claims, a suit against Mr. Trump is unlikely to succeed. This is mainly because the Supreme Court in Nixon v. Fitzgerald (1982) held that sitting Presidents enjoy absolute immunity from civil liability for actions taken in an official (rather than personal) capacity. While President Nixon’s action in that case can be distinguished from Mr. Trump’s because it more clearly involved an exercise of the powers of the office, the Nixon Court took pains to instruct lower courts to bend over backwards to treat actions by a sitting President as official rather than personal. Thus, under Nixon, if Mr. Trump’s statements about Dominion were made while he was in office, he will probably be adjudged immune from liability. Interestingly, Nixon’s absolute immunity rule lacks the sort of textual or historical basis that a majority of current Supreme Court Justices purport to demand for recognizing constitutional rights or privileges. But to date only Justice Thomas has indicated an interest in revisiting the Court’s immunity decisions.
Finally, Mr. Trump’s lawyers would argue that he benefits from additional statutory and common-law immunities, and these arguments could in theory succeed even if for some reason the argument of constitutional immunity were to fail.
Roy Gutterman, Associate Professor, Communications law and director of the Tully Center for Free Speech at the Newhouse School at Syracuse University:
Even if there are numerous examples of false statements and ample evidence of falsity, which there might well be here, suing a former or sitting president for defamation, honestly, does not seem practical. The speech, even if erroneous or knowingly false might fall outside First Amendment protections, especially if they were spoken by an ordinary person, not the President of the United States. Amending the defamation suit to include the president would draw attention away from the speakers who went on tv and made the false statements.
The speech at issue could also ostensibly be covered by the First Amendment and the rules and standards that emanate from the Times v. Sullivan case from 1964. In establishing the actual malice rule or privilege, the court made an analogy that public officials cannot face liability for their actions in office so they should not be able to easily sue critics of their actions while in office. In an ironic twist, the Times v. Sullivan case is the case Trump publicly criticized when he vowed to “open up” libel law. If this precedent is overturned, it would make it a lot easier to sue speakers like Trump when he publicly says false and potentially defamatory things. The Dominion lawsuit focuses on the broadcasters and some of the highest profile speakers who went on tv to propagate false statements about the election. For the media, this reiterates a level of responsibility broadcasters and other news outlets for the content they disseminate. This lawsuit may end up compelling broadcasters to be more cautious with their live, on-air guests and what they say and how the anchors or reporters challenge or counter false information.
A defamation case against a sitting or former president would be highly unusual. As far as I know, the only time this has happened was in 1915 with Theodore Roosevelt. But that was a simpler era.
Lyrissa Lidsky, Raymond & Miriam Ehrlich Chair in U.S. Constitutional Law, University of Florida Levin College of Law (@LidskyLidsky):
“Actual malice” is a legal term of art that entails actual knowledge of falsity or reckless disregard of the truth on the part of the speaker. The Supreme Court has stated that actual malice requires “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” In St. Amant v. Thompson, the Court said that actual malice exists if a defendant invents a story, bases it on “an unverified anonymous telephone call,” publishes statements that are “so inherently improbable that only a reckless man would have put them in circulation,” or publishes them despite “obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports.” In other words, actual malice can be found where a speaker sticks his head in the sand to avoid hearing evidence he doesn’t want to hear. Based on what President Trump was told–repeatedly–by credible senior U.S. officials and campaign officials, the President had obvious reasons to doubt the veracity of the assertions he was making about Dominion and election fraud. Thus, Dominion would potentially have a strong case against the former President for making defamatory and false statements about them with reckless disregard for the truth, though the ultimate success of that case might depend on a jury’s evaluation of witness credibility.
Zahr K. Said, Charles I. Stone Professor of Law at the University of Washington School of Law (@zahr_said):
Dominion could have a very strong case if it sued Mr. Trump for defamation. Simplifying contemporary libel law a little, most plaintiffs must prove 1) the defendant made a statement with defamatory meaning, 2) about or “of and concerning” the plaintiff, 3) and published it to a third party, 4) with a requisite level of culpability ranging from negligence up to actual malice.
Mr. Trump has repeatedly made defamatory statements about Dominion voting, thus easily satisfying elements two (“of and concerning” the plaintiff) and three (“publication”). On the first element, whether a statement is defamatory is generally a question of law for the court. Doe v. Cahill, 884 A.2d 451, 463 (Del. 2005). Courts consider first whether the statement consists of fact or protected opinion and next whether the statement is capable of bearing defamatory meaning. For example, Trump’s Ellipse speech incorrectly alleged that Dominion’s machines switched thousands of votes from Trump to Biden in Michigan and were associated with a “93.67% error rate” in Fulton County, Georgia. These are statements of fact susceptible to verification and thus differ categorically from statements of opinion. Merely qualifying a false factual assertion with an opinion does not imbue it with constitutional protections that would immunize it from liability for defamation. Had Mr. Trump preceded these comments with the disclaimer “in my opinion,” they would nonetheless remain false statements of fact.
As statements of fact, they are also clearly capable of bearing defamatory meaning and fall into the category of “per se defamation” in which harm may be presumed based on the nature of the communication. Defamation per se tinges the plaintiff with “incompetence, incapacity or unfitness in the performance of one’s profession.” Allen v. CH Energy Group, Inc., 58 AD 3d 1102, 1103 (N.Y. App. Div. 3d Dept. 2009). If Dominion Voting Systems truly were plagued with error rates in the 90s and was changing votes through manipulation or incompetence, this conduct would undermine their entire business, at least in a rational market. (Indeed, Dominion claims in its other lawsuits that these spurious allegations have caused it to suffer damages amounting to $650 million.) In sum, Mr. Trump’s communications leave no room for doubt about their allegedly factual nature nor their defamatory impact; by continually maintaining that a business that operates voting machines knowingly and intentionally subverted a Presidential election, he has satisfied the first element of defamation.
The fourth element, the requisite level of culpability on the part of the defendant, can set a notoriously high bar for some plaintiffs. In New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1968), the Court eliminated strict liability for defamation claims, imposed new constitutional limits on state defamation laws, and created a heightened standard, “actual malice” for defamation of public officials. Plaintiffs required to prove “actual malice,” must show that defendants possessed knowledge of falsity or reckless disregard with respect to the truth or falsity of their statements. Sullivan’s progeny broadened the ruling to public figures and subsequent case law mostly continued to build speech-protective momentum around speakers and issues of significant public concern. Speech about the 2020 Presidential’s election’s “Big Lie” —and the corresponding debunking of all claims of election fraud—remain matters of pressing public relevance for our upcoming midterm and Presidential elections. Courts have accordingly held Dominion to this higher standard and required proof of actual malice. Despite the difficulty of meeting this standard in most cases, it is likely to be satisfied here. Mr. Trump was repeatedly briefed by employees who have now testified under oath that they informed him that the assertions he was making and continued to make were false. Their testimony will disprove the notion that Mr. Trump lacked awareness of the falsity of his communications or that he even entertained “serious doubts” about the nature of his communications, then and now, as he continues to press false claims against all evidence to the contrary. Dominion is likely to prevail on this element as well.
For many reasons, legal tools have not provided much protection from the abundant misinformation infecting nearly every aspect of our lives. The tort of defamation could and should provide a robust epistemological check on at least some forms of egregious myth-peddling such as those that target and tarnish reputations. Removing access to platforms on which a liar spreads lies provides one form of abatement; holding Mr. Trump legally liable for defamation would allow courts to levy damages, provide compensation to those directly harmed, and provide significant public and institutional censure that could herald a change in our legal system’s apparent tolerance of outright misinformation.
David Schulz, Director, Yale Media Freedom & Information Access Clinic and Senior Counsel, Ballard Spahr LLP (@MFIADave):
Would Dominion have a strong case of defamation if the company decided to sue Mr. Trump?
Yes. The First Amendment provides no safe haven to those who knowingly spread lies that damage reputations, and those who do can be held accountable for the damage they cause. Based on the public record, Dominion has a very strong case for defamation against Mr. Trump, with one potentially significant impediment.
There are five things Dominion would need to prove to establish a claim for money damages. It must show that Mr. Trump 1) made a statement to others 2) about Dominion 3) that was both false and defamatory, 4) that he did so with “actual malice,” and 5) his statement damaged Dominion’s business.
The known facts suggest that Dominion should be able to meet its burden on each point. There appears to be no doubt that Mr. Trump made statements about Dominion that have damaged its business. There is also no doubt that many of those statements were provably false. The real issue, as in most defamation cases involving public figures, would be proving that Mr. Trump made the statements with “actual malice.”
Actual malice is the standard of fault the Supreme Court requires all public figures to prove to prevail in a libel claim based on a statement involving a matter of public concern. The Court recognized in N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964), that factual errors inevitably creep into the give and take of robust public debate. To avoid chilling speech on matters of public significance, the Court held that the First Amendment prohibits public figures, like Dominion, from asserting defamation claims based on innocent factual mistakes. Dominion would thus need to prove that Mr. Trump made a false statement knowing that it was false or “with reckless disregard of whether it was false or not”—the standard called “actual malice.”
Based on the public record, Dominion should readily be able to establish this element too. Indeed, it might well be easier to make this showing in a case against Mr. Trump than in some of Dominion’s pending cases. It has been widely reported that Mr. Trump was told that his claims about Dominion’s voting machines were untrue, and some were so “inherently improbable that only a reckless man would have put them in circulation”—solid evidence of actual malice. St. Amant v. Thompson, 390 U.S. 727, 732 (1968). Congresswoman Liz Cheney, Vice Chair of the January 6 Committee, got it exactly right last week when she said, “Donald Trump cannot escape responsibility by being willfully blind.”
The one impediment Dominion may face is the statute of limitations, the period in which litigation must be commenced or it becomes time barred. Most states have a one-year limit on defamation claims; Florida’s limit is two years. Depending on what state law governs, Dominion could now sue only on statements made by Mr. Trump in the past one or two years. Anything he said in the immediate aftermath of the election may be time-barred.
Ciara Torres-Spelliscy, Professor of Law at Stetson University College of Law and the author of the book “Political Brands” (@ProfCiara):
At President Trump’s stop the steal rally at the Ellipse on January 6, 2021, he said, “there is the highly troubling matter of Dominion Voting Systems. In one Michigan county alone, 6,000 votes were switched from Trump to Biden and the same systems are used in the majority of states in our country.” Then to back up his claims about Dominion, Trump pointed to the findings of Georgia State Senator William Ligon who had held hearings on problems in 2020 election and concluded that “Dominion Voting Machines employed in Fulton County had an astronomical and astounding 93.67% error rate. It’s only wrong 93% of the time in the scanning of ballots requiring a review panel to adjudicate or determine the voter’s interest in over 106,000 ballots out of a total of 113,000.”
This tirade about Dominion’s voting machines on January 6th wasn’t a new ploy by President Trump. One webpage tracking his accusations logged 46 Trump statements impugning Dominion’s voting machines. And President Trump had said nearly the same thing on January 4th, 2021 in Georgia on the eve of the Senate runoff election when Trump argued that “The [Ligon] Committee then heard—… additional testimony concerning voting irregularities during the 2020 general election…First, the Dominion voting machines employed in Fulton County. That’s the home of Stacey. Had an astounding 93.67 error rate. 93.67 error rate in the scanning of ballots ….”
On closer inspection one of the primary sources of Senator Ligon’s Committee’s (mis)information about voting machine irregularities came from Rudy Giuliani (the president’s then-lawyer). Giuliani told Senator Ligon’s committee, “those [Dominion] machines are like Swiss cheese. You can invade them. You can get in them. You can change the vote.” No credible source has backed up Giuliani’s version of events.
Thus, President Trump on January 6th (and on other occasions) gave the appearance of providing objective proof of voting machine problems when the “evidence” he relied on was really just from the Trump’s own delusional circle of outside lawyers, who according to the January 6th Committee’s revelations, were providing these ginned up stories of problems with the 2020 election as part of a callow plot to hold onto power after losing the 2020 Election.
So what would happen if Dominion sued Trump for defamation for lying about fake problems with their product? Dominion has pending defamation cases against Fox, Newsmax and OAN for spreading substantially similar lies about the company’s role in the 2020 election. Given what the public now knows thanks to the January 6th Committee about President Trump’s post-election lies, Dominion would have a robust defamation case against the ex-president too.
Timothy Zick, John Marshall Professor of Government and Citizenship at William & Mary Law School and co-author of “The First Amendment: Cases and Theory” (Wolters Kluwer 4th ed. 2022):
Assuming the former president is not immune from the civil lawsuit, I think Dominion would have a very strong defamation case against Donald Trump. If the company is a “public figure” it would have to prove Trump made statements about Dominion with actual malice, meaning he knew they were false when made or acted recklessly with regard to their truth or falsity. There is substantial evidence to support that claim.
Trump would likely argue his statements were hyperbole or some form of campaign rhetoric. But in several other defamation cases Dominion has filed, including against the Trump campaign, courts have consistently rejected the claim that the allegations against Dominion were not intended to be statements of “fact.” Indeed, Trump’s tweets and other public statements about Dominion’s alleged role in “rigging” the 2020 election, specific claims that voting machines in Michigan were faulty or altered to favor Joe Biden, and assertions that the companies had “error rates” of 68% and 93.67% are all provably false. Trump would also likely argue his statements about Dominion relied on information provided by auditors and lawyers. But there is evidence Trump knew the statements about Dominion were false when made. His own Attorney General told him the assertions were “idiotic” and had “zero basis” in fact. Other senior Justice Department officials also told Trump that what he had heard about Dominion voting machines was false. Nevertheless, Trump continued to publish false statements about Dominion. As Attorney General Barr told the January 6 committee, in his discussions with Trump about Dominion “there was never an indication of interest in what the actual facts are.” That, of course, is the very definition of actual malice.
Editor’s note: All of the Dominion complaints and court opinions are available in the January 6th Clearinghouse (see entry no. 9 under “The Big Lie: Organizations, Broadcast and Cable Media”).