OA517: Cuomo Resigns; Dominion Lawsuit Survives Motion to Dismiss - AKA Consequences for Baddies!

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 517. I'm Thomas. That's Andrew. How you doing?

0:01:23 Andrew: Hi, I'm fantastic. I feel like we're in a little bit of a time warp, right? Like doing a rapid response on a Tuesday. It seems crazy.

0:01:27 Thomas: Yeah, we reversed the polarity. Don't.

0:01:33 Andrew: Yeah, there's

0:01:35 Thomas: We're doing the rapid response Tuesday. Weird. So it's not as rapid, but it is a response. Well, I think we'd better, we've got so much to do, we'd better get to it so

0:01:39 Andrew: Yep. Let's do it. All right.

0:01:48 Clip: Down the law, down the law.

0:01:52 Thomas: Great news on the Cuomo front, Cuomo resigned, that's good to hear because obviously that guy was a creep and those I I uh got even more into the details of, of the allegations against him and it's just, just gross man, just so much gross stuff with the state trooper as well. I mean, it's all awful and I'm glad he's gone and good job Democrats for actually policing our own and getting a a Democratic governor out of a spot. I mean, that's just, that says a lot about our party. And it's by comparison, a lot about Republicans, I think.

0:02:25 Andrew: Absolutely does. And we got zero well-actually emails defending Cuomo, which is real good, and I want to point out, though, just to continue to ward off those potential arguments, we linked it in the show notes on episode 515. I am going link it in the show notes again. The 168 page report prepared by the New York attorney general's office using two well-respected outside law firms that came in. Right. So, as you arm's length as possible, concluded with, quote, The governor engaged in conduct that constituted sexual harassment under federal and state law, end of quote, furthermore, that the executive branch failed to follow internal policies. Right. That's not quite proof of obstruction of justice.

0:03:13 Andrew: Right. But it is part of the evidence that you would take into account. Right. In saying, like, you know, when we said Trump obstructed justice by, you telling inspectors general, yeah, I know you're supposed to send that on to Congress, but why don't you just send that to Bill Barr instead? Right. Like, irregularities in process are often evidence of obstruction of justice, two things. So you emphasized the credible nature of the allegations, you were straw botting the Cuomo position, I don't think any of those arguments would survive an independent investigation conducted at arm's length by members of your party, concluded that you committed multiple crimes, crimes, right? That's it. That's enough. Hasta la vista. Case closed. All right. So poses a couple of different questions, right, the terminal one we're going to get to, right, which is can the impeachment still proceed, right, against Governor Cuomo, right?

0:04:00 Thomas: Case closed.

0:04:14 Thomas: Yeah.

0:04:14 Andrew: Lots of people want to know these sorts of things, but

0:04:15 Thomas: Well, the parallel to Trump where it's like, there's still a reason if you want to keep them from office in the future, there's still plenty of reason to do it, right?

0:04:24 Andrew: Yeah, no. And, and let's jump ahead to that. We discussed in Episode 515, Section 24 of Article 6 of the New York State Constitution has the exact same language that would be replicated in the U.S. Constitution a decade later. Right. Says judgment in cases of impeachment shall not extend further than to removal from office or removal from office and disqualification to hold and enjoy any public office of honor, trust or profit under this state. And so absolutely to say, yeah, this is somebody who should not hold statewide office again. And right. Given the last name and the family history, that strikes me as not an implausible thing to say.

0:05:09 Andrew: Right. To say, yeah, we want there to be actual consequences and resigning with a year left. Having served seven of eight years as governor, we're not sure that's consequences. I can understand that argument? Whether the heavily Democratic New York legislature will follow through on that, I don't know. But they certainly are entitled to for that reason. It is an unsettled question at the New York state level, but again, only for the reasons that it hasn't been tried. But there seems to be just in an exact parallel, seems to be all of the reasons why this could proceed against Donald Trump or reasons that could proceed against Andrew Cuomo.

0:05:55 Andrew: So we'll be following. We'll take a look at that. I also thought it was worth talking about Lieutenant Governor Kathy Hochul, who is going to take over. It'll be in about a week and a half by the time you hear this. This is part of the reason we didn't need to we didn't get it out immediately on Friday because Cuomo resigned with, I need two weeks to clean out my desk, I guess.

But will become the first female governor of the state of New York. She is described as having served one term in Congress. It's actually kind of an interesting situation. She won a special election in 2011 after Republican Representative Chris Lee resigned sort of a karmic scale. Chris Lee resigned from sending unsolicited requests on Craigslist to a to a young woman. Then that woman went to the press like, aren't you that congressman? And he was like, delete, delete, delete, delete, and then she went to the press and he resigned. Hochul won that special election, served for a little over a year. And then that district, New York 26th, was redistricted into New York 27 because New York lost two seats during the 2010 census. And as part of the redistricting process, The district went from being a toss up to being an R plus 25 district. And despite that disparity, she only lost to Chris Collins by a point and a half in 2012. That new New York 27 has elected nothing but Republicans since it went for Trump by 24 points in 2016 and by 15 points in 2020.

0:07:37 Andrew: So so she won in an area and then and then did very well, even when it became heavily more Republican. Hochul then ran for lieutenant governor in 2014, won, and then Cuomo Hochul were reelected in 2018. She has already said that she is prepared to run for reelection in 2022. So, you as as governor. That's right.

0:08:02 Thomas: Governor, though, right? Yeah. And I also, like she said, like, one way or the other, no matter what happens, this won't be a toxic work environment. And I just was like, you know, it sucks that you have to say that. That should be, like, a bare minimum that any possible governor would fulfill, fulfill but no, I need to be said and I appreciated it. Hmm.

0:08:10 Andrew: Yeah.

0:08:23 Andrew: Yep. And and let's also point out, you know, we're putting our money where our mouth is in the sense that we don't have a lot of evidence about Hochul's politics. It seems as though she is a more centrist Democrat. Right. She has has previously used that label, used the label independent Democrat to describe herself in 2012 in Congress. Now, again, there are a lot of caveats that you could put here. As we were pointing out, right, she was being redistricted into an R plus 25 district, right? A lot of good reasons to say I'm an independent Democrat. She actually cast a vote. She was one of 17 Democrats in Congress who joined with a partisan Republican finding that Attorney General Eric Holder was in contempt of Congress for withholding documents related to Operation Fast and Furious, which is a Republican cause celeb. And, you know, it is what it is. So she Right. She did that in 2012 according to GovTrack, she voted with the Democratic Party 84.2% of the time, which ranked 169th among 192 House Democrats during the term in which she was in office.

0:08:40 Thomas: Well.

0:09:38 Andrew: And GovTrack describes her as a centrist Democratic follower. And the word follower is there because she sponsored one piece of legislation during her time in office. OK, so those are negative signs, right. The counter argument that I would I would point to, and that we've talked about on the show, is that Kirsten Gillibrand had a similarly, you know, more conservative, more centrist record in the House before she was appointed to the Senate. And I think has been, you know, pretty good for progressives and for progressive politics. That's, that's the political side. But again, as you and I pointed out, right, like, we're willing to take that risk. It's, right, important.

0:10:18 Thomas: Also, again. I mean, she'll be running for re-election very soon, so you know, we'll find out I guess, dude.

0:10:19 Andrew: Yeah. Yep. Yeah, and that's exactly right.

0:10:26 Thomas: Why

0:10:26 Andrew: On Now, the flipped side, I think she has taken a strong but appropriate stance with respect to the Cuomo allegations. Right. So another question that people have asked us is, could Hochul pardon Cuomo, right? Follow the Jerry Ford. And that's exactly the right answer. Yes. Yes, she could. But why would she? Right. And doesn't seem to be any reason to do that.

0:10:43 Thomas: Why would she though?

0:10:53 Thomas: Question. Sorry to interrupt. I know every time we've talked pardons in the past five years, it's always been state versus federal. Some of these crimes that it seems like Cuomo is guilty of, they would strike me as more equal protection-y workplace. They sound kind of federal to me, but am I wrong there? Are they state level crimes that she even could pardon him for?

0:11:16 Andrew: You are absolutely right. Like the protections overlap and there there absolutely are be the potential for finding a violation of federal law, even if he were pardoned. Now, I think the likelihood that a criminal prosecution is is ever... well, yeah, I mean, let me not. I stopped midstream there. I was going to say I still think it's low, but I don't want to say... I don't want to say that it's zero. You cut to the chase on the right answer, though, which is that has been said immediately, I find this behavior repulsive and unlawful. I believe the women who have accused Andrew Cuomo. And then she said, look, I have not called upon Governor Cuomo to resign because lieutenant governors stand next to the line of succession. Session and it would not be appropriate to comment further on the process, which is the right thing

0:11:21 Thomas: Right.

0:11:37 Thomas: We'll see, yeah. Yeah, Yeah, That's Fair

0:12:09 Andrew: To say. She was asked if Cuomo were convicted on any potential criminal charges. And she said it is far too premature to even have those conversations. And then with respect to impeachment, and I think this is a pretty strong signal, she says, I've been in this business long enough to know that is not the purview of the New York state governor to dictate to the New York state assembly or to the judiciary committee on what actions they should take next with respect to anything, particularly impeachment.

0:12:09 Thomas: Yeah.

0:12:37 Thomas: Is A big Contrast to Cuomo, right? Well,

0:12:38 Andrew: Uh, uh, yeah. So that's, uh. That's, if you guys think about going ahead, uh you can go ahead.

0:12:46 Thomas: Not only that, I mean, I just, there's been so many, if I have it right, so many reports of Cuomo just being awful within, just trying to dominate the legislature all the time and, you know, just bad relationships there, so I feel like that's an additional dig, but I could be reading into it too much.

0:12:47 Andrew: Oh No, I think I think I that's right. And the other comment of note was that Governor soon to be Governor Hochul said there will be turnover. There will be turnover of the current governor's staff.

0:13:11 Thomas: Yeah, anyone who enabled that atmosphere for sure. I

0:13:16 Andrew: Yep. And the report, like I said, 168 pages absolutely details the again, it comes short of of obstruction of justice, right? It does not say that Andrew Cuomo instructed the executive branch to disregard its standard procedures. It says, right, the executive unit failed to follow its internal guidelines. So, you the standard that you would use to charge somebody criminally is way different than the standard of, hey, does this person get to continue in their job So you're absolutely correct.

0:13:50 Thomas: Wanted to sneak in a question I saw real quick that I honestly feel like I should have asked, and it's not regarding the Cuomo part, but the Newsom part. There must be some little rule that stops this from happening, but somebody asked us, you know, why can't Gavin Newsom just resign, prevent the recall? That way there's no risk of you we elect whoever the heck some right wing whatever resign and then the lieutenant governor of California becomes the governor and uh is that a get out of recall free process?

0:14:37 Thomas: So It's purely a political constraint that prevents this from happening? Wow.

0:14:46 Andrew: I like I understand. Yeah, I think that's right.

0:14:52 Thomas: And I I'm I imagining shenanigans. That should be my new band name. Imagine Shenanigan Experience. Uh, with, with, where it's like, at what point, I, but this didn't happen with Gray Davis. I assume there's, maybe it's just, but again, different era. Um, maybe in today's hardball era, who knows if it would be a different thing, but, you know, the minute the results don't look good, I resign, you know, or something like that, uh, to get the lieutenant governor in there, and then would the recall process fizzle, you know, like you, you recalled to governor that wasn't governor, and you, let's, let's say the recall, is it's just about to go through, you know, and Newsom's gonna lose and some just awful Trumpy and, you know, horrible person is gonna win. Uh, could, could Gavin Newsom, is there any timing trick in there, just be like, I'm out, uh, Lieutenant Governor, sorry, you can't, you don't actually, the recall doesn't work.

0:14:52 Andrew: Yeah. Oh, can the recall is directed against a particular individual incumbent of the office. And the threshold question is, you know, should you remove Gavin Newsom from the office of governor of California? As far as I can tell, no one's ever tried the resign moots, but it seems very clearly to me, right? Like, envisioning what would happen, right, right. Right. And so long as, you know, there was sufficient time for the governor prior to the vote for the recall is not the person who is voted to be recalled. Right. Then the argument would be that the results of that plebiscite are, you I mean, you would go to court and say, they are, you know. Null and void because there's no one to remove. Right. You've gotten the remedy that you want already. Yeah.

0:16:03 Thomas: Yeah.

0:16:38 Thomas: Holy moly. Okay, well, in this hardball era, Gavin, I hope you're listening, do this if it looks bad. Okay. Wow, great question.

0:16:46 Andrew: Yeah. Fantastic question. Never been tried. And I think, right, like a week beforehand. Yeah, you know. Yeah, if you did some shenanigans as the votes are coming in, I could see a court saying, no, no, no, but but if it's a week beforehand, a court would say, yeah, this matter is moot. You've gotten the relief that you want. Right. And the relief that you wanted was to remove Gavin Newsom from office. You cannot say because, and you would use the plurality factor, right, the worst aspect of the California recall, as a court, I would say the only thing that the recall provision of the Constitution affirmatively empowers as relief is removing the person from office, because the person who is then empowered to step into that spot can be elected with a very, very tiny minority, right, a tiny plurality of the remaining votes it

0:17:39 Thomas: Which, again, is why this is such a dumb system. It's so terrible.

0:17:43 Andrew: Is but yeah, but but but I would turn that on its head and say therefore, right, you are not, there is no entitlement to relief among those who would otherwise have voted for the re, for the recall, right, you're not entitled to, in other words, under the Constitution, regardless of how the outcome comes out, you cannot say that you had a legitimate interest in recalling Newsom and replacing him with someone else, your right? Only interest is recalling Newsom. And if you don't like the lieutenant governor, well, recall them, right. We're not going to stop you, right, but we are going to make sure that you get petitions that meet the criteria, right, and go go through that whole process itself, um, so I I I agree with you I don't think there's anything to stop other than you giving the other side what they want.

Um, and that dovetails really, really nicely into a couple of comments we got from listeners, one of which is exceptional, on um, what is going to happen in this, right, and and looking at the poem, and you and I talked about out and had a good chuckle over the SurveyUSA poll, which showed YouTuber Kevin Paffrath with 27 percent of the vote becoming the next governor of the state of California, and Emerson College showing Kevin Pafrath with one percent becoming the next nothing of nothing thing, we made a crack about um, did his, you know, army of YouTubers come in and

0:19:15 Andrew: Hack the polls or whatever we well let me share two comments with you, first is from a listener, uh, in the military who already got their mail-in ballot and already sent it in with just a no vote, uh, leaving it blank before listening to our episode. Well, at least they sent it in with a no. That's correct. But that person said, just so you know, Paffrath was listed as a YouTuber on the ballot where it lists their qualification. Caitlyn Jenner was listed as entrepreneur. So I thought, I thought that was a good one.

And we have Michael McCourt, who wrote in, and I'm going to read most of, most of his comment, which says, as someone who follows polling a little too obsessively, I figured I would weigh in on the most recent episode where you discussed the recall election in California. You seem to be stumped by the difference between the SurveyUSA poll and the Emerson College poll.

After reading the crosstab details provided by the two pollsters, it seems that SurveyUSA identified Kevin Paffrath as a Democrat, while Emerson College did not. To be fair, I could not find the exact text used for the question asked by Survey USA.

0:19:15 Thomas: Well, I know, I legitimately think that something must have happened.

0:19:29 Thomas: Well done.

0:20:18 Andrew: Neither could I. That was part of why I didn't. But the results do identify him as a Democrat. And also, the Survey USA poll was conducted online, so the option choices were visually displayed likely with the party identification as the letter D. And when you do look through the crosstabs, remember that there are no organized Democratic candidates. Right. So of those nine people who were ranked by Survey USA, eight are Republicans and one is the Democrat Paffrath. So it is Paffrath and then all Republicans, Larry Elder, John Cox, Kevin Falconer, Doug Ose, Caitlyn Jenner, Kevin Kiley, some other candidate or undecided. And then Michael McQuirk goes on to say, so for that question, all the other name choices of Republicans, when you look at the 20 percent, 7 percent of respondents who said they would vote for Paffwrath, you see that 50 percent said they were voting no on the recall while only 12 are voting yes. Yes. So, yeah. Yeah. And then we could go through.

0:20:31 Thomas: Okay.

0:21:17 Andrew: But the way this poll was structured was you saw the party identification and you get to the second question that says, OK, if Newsom is recalled, who are you voting for? And there's only one Democrat listed. It, we should not be surprised that that one Democrat gets 27% of the vote and leads the field. That will not be the way this actually plays out. Because actual voters will get the three page ballot with no clearly defined Democratic candidate on it. But, you know, 20 different Democrats to choose from of whom they've never heard. Right. So the idea that you would coalesce behind a single person on the long ballot, I think, is without any evidentiary support. And so I am going to treat and I think everyone has treated. I've looked for polling since then and no new has come out. But the idea 27 percent is not plausible.

0:21:47 Thomas: Hmm. Okay.

0:22:16 Thomas: Yeah. Yeah, someone done goofed. I mean, that's not a good way to poll So, no, but it doesn't seem like any hacking or anything crazy like that. So, OK, well, that probably answers that. And we have hopefully enough time to get to our main segment.

0:22:16 Andrew: Um. Yeah. That's exactly right.

0:22:35 Andrew: That's what I love about this show. So last week, uh, was Mike Lindell's, uh, glorious, um, I don't even know what to call it, national broadcast in which he was going to prove, prove how Dominion voting system stole the election, delightfully. He claimed that the deep state was hacking his own broadcast because it suffered so many technical problems.

0:23:01 Andrew: There's... there's Actually an article, a credulous article, you know, run by the right wing lunatics over at Washington Times that says, you know, Mike Lindell claims it was hacked. You know, that's that's the best they can say is Uh, you know, lunatics think so. It

0:23:00 Thomas: Yeah. Yeah, sure. Yeah. Yeah. He also can't open a PDF. Ah, Deep State! It's hacking my computer!

0:23:22 Andrew: And gloriously at the exact same time, right, so last Wednesday, right before we're recording this, um, the United States District Court for the District of Columbia ruled on the pending motions to dismiss in the consolidated Dominion defamation lawsuits cases, right? So you might recall Dominion sued Sidney Powell, sued Rudy Giuliani, and sued Mike Lindell and MyPillow. And those have all been consolidated into a single action because they're all operating out of the same common nucleus of operative facts. And three of those parties moved to dismiss, but they moved to dismissed for, for very different reasons.

0:24:09 Andrew: Right. Largely because there aren't good reasons to move to dismiss here. And the court in a 44 page ruling that, nope, none of these are sufficient grounds for moving to dismiss. So I thought it would be worth kind of going back through this again, because, you know, you have somebody publicly repeating the very defamation for which they are being sued. And unlike the claims by crack in lawyers who are present here, this is a valid and viable case. They have moved to dismiss and said, this is just, you know, a difference of political opinion. And the court's like, no, no it isn't.

0:24:52 Andrew: When you say a particular company can turn 1.72 votes into 0.4, like that's not an opinion. That is an actionable statement of fact. And if it's false, it's defamation against the company that is claiming that they're running an honest vote tabulation company. So, Sidney Powell. And again, this is leftover from our discussions on sanctions in Michigan. But all of these people, the moment you are tempted to have the slightest bit of sympathy, you realize that they're all pigs drinking from the same trough. So who do you think Sidney Powell's lawyer defending Sidney Powell representing her in the Dominion defamation lawsuit is

0:24:52 Thomas: Was it Lin Wood?

0:25:40 Andrew: Close? It's Howard Klein Handler.

0:25:41 Thomas: Yeah. Oh, there you go.

0:25:43 Andrew: And. So both representing clients in Michigan, but, you know, he's representing her. And the reason is because they share a common set of insane beliefs and no one else does. And nobody, no self-respecting attorney would come in and represent Sidney Powell. So you got to Howard Kleinhandler to do it. So basis for the motion to dismiss. And again, Kleinhandler was the guy you looked at and you're like, well, this you know, it it seems like he's saying lawyer stuff.

0:26:16 Andrew: Right. And it's true. So his argument on behalf of Sidney Powell has more lawyer stuff in it. Then, right, the Giuliani and Mike Lindell motions to dismiss. Right. So first, Sidney Power was the only one of the lawyers to argue, and this made some public headlines. We deconstructed it a little bit, that her statements about Dominion could not be defamatory because no reasonable person could conclude that they were statements of fact. Right. According to Sidney Powell, her statements were either opinions that could not been proven true or false or legal theories made in the context of pending and impending litigation. And, you know, from that tortured structure of the English language, I'm quoting directly from Sidney Powell's brief.

0:25:57 Thomas: Yeah. Yeah,

0:27:06 Andrew: The court was not impressed with this argument. It said, for a statement to be actionable as defamatory, it must at least express or imply a verifiably false fact about the plaintiff. And while statements of opinion regarding matters of public concern cannot be defamatory if they do not contain or imply a provably false fact, they are actionable if they imply a provably false fact or rely upon stated facts that are provably false. In deciding whether a reasonable fact finder could conclude that a statement expressed or implied a verifiably false fact, the court must consider the statement in context. So then it's like, all right, so let's look at Sidney Powell's context. Powell contends that no reasonable person could contend that her statements were statements of fact because they concerned the 2020 presidential election, which was both bitter and controversial, and were made as an attorney advocate for her preferred candidate and in support of her legal and political positions.

0:27:59 Andrew: As an initial matter, there is no blanket immunity for statements that are political in nature. Sure. It is true that courts recognize the value of some level of imaginative expression or rhetorical hyperbole in our public debate. But it is not the law that provably false statements cannot be actionable if made in the context of an election. OK, so try again.

0:28:22 Andrew: Powell similarly argues that her statements were protected commentary about other lawsuits. But Powell cannot shield herself from liability for her widely disseminated out-of-court statements by casting them as protected statements about in-court litigation, and attorneys' out-of-court statements to the public can be actionable even if those statements concern contemplated or ongoing litigation. So again, that argument is nonsense. So the question then is whether a reasonable juror could conclude that Powell's statements expressed or implied a verifiably false fact about Dominion. And then the court says, and again, I understand, dear listener, that you're used to my breaking down court opinions. And I talk like this all the time sitting. There's reason why I am not a sitting U.S.

0:28:22 Thomas: Spicy

0:29:09 Andrew: District court justice. Right. Sitting federal judges do not talk this way. So this is not a close call.

0:29:17 Thomas: Law smackdown incoming, Everybody, buddy.

0:29:19 Andrew: Yeah, This is 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 admitting 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 billion votes, or she does not. She has not tweeted out the vídeo, by the way. Right. To take another example, Powell has stated that she could hardly wait to put forth all the evidence on Dominion, starting with the fact that it was created to produce altered voting results in Venezuela for Hugo Chavez. Again, the statement is either true or not. Either Dominion was created to produce altered voting results in Venezuela for Hugo Chavez or, as Dominion alleges it was not Take a few more examples

0:29:41 Thomas: Oh. Weird.

0:30:00 Thomas: Yeah. Well. I'm picking that it's not true

0:30:12 Andrew: Balls.

0:30:12 Thomas: And the coin picks that it is, sorry, go ahead. She

0:30:14 Andrew: Yeah, right. And then it goes on, right? So take a few more examples. I'm not going to read it. The court then says, in sum, Dominion has adequately alleged that Powell made a number of statements that are actionable because a reasonable juror could conclude that they were either statements of facts or statements of opinion that implied or relied upon facts that are provably false, no, we've been telling you this from the beginning.

0:30:37 Thomas: Really was going For the, that's just my opinion, man, uh, defense or something. It's my opinion that I have a video that the president of company's in which he says that he can change a million votes. It doesn't really again, the law is not just magic words, really. I mean, sometimes, but not.

0:30:42 Andrew: Yep, yeah. It Really isn't. So, next argument, this was made by both Sydney Powell and Mike Lindell, uh, they said, look, Dominion is a public figure, so you have failed to allege that our defamatory statements, if they are defamatori, were made with actual malice, that is, with the knowledge that they were false or with reckless disregard of whether they were false or not. So then the court says, well, let's take a look at it.

0:31:20 Thomas: Yeah.

0:31:23 Andrew: Dominion argues that it has cleared this high bar. As to Powell, Dominion contends that it is alleged that not only that Powell's claims are so inherently improbable that only a reckless person could have believed them. I love that. 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. Yes.

0:31:54 Andrew: Powell's primary argument is that she could not have entertained serious doubts as to the truth or acted with a high degree of awareness of the probable falsity of her claims because she relied on sworn declarations and other evidence that supported her statements. But there is no rule that a defendant cannot act in a reckless disregard regard of the truth when relying on sworn affidavits, especially sworn affilavits that the defendant had a role in creating. And Dominion alleges that Powell's, quote, evidence was either falsified by Powell herself, misrepresented and cherry-picked, or so obviously unreliable that Powell had to have known it was false or acted with reckless disregard for the truth. Now, this is the court. So those are the arguments that were made. Here's the court weighing in. 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.

0:31:54 Thomas: Yeah,

0:32:47 Andrew: See super at page six. A reasonable juror could conclude that Powell has not produced the video because she doesn't have it. You may be thinking that I am paraphrasing. That is word for word. She doesn't have it. Yeah. Dominion also alleges that Powell doctored a certificate from the Georgia Secretary of State to make it appear as though Georgia officials purchased Dominion machines and software on a rushed timeline. This certificate, which is publicly available on the Georgia Secretary of State's website, includes the Georgia secretary of state's date, seal, and signature, but Powell claimed that the Dominion certification was undated and filed a copy of the certificate that was missing the date, seal, and signature during the course of her election litigation in Georgia. Dominion also alleges, you know where this one's coming, that Powell had a hand in drafting the declaration she touts as evidence of her claims. For example, Dominion alleges that the military intelligence expert who was the source for one declaration has admitted he never worked in military intelligence, that the declaration Powell's law firm drafted for him was misleading, and that he was trying to backtrack on it. That's Spider.

0:32:58 Thomas: Wow. Yep.

0:33:50 Andrew: Dominion further alleges that after that source's recantation, Powell claimed that the Declaration was actually from a different anonymous source, instead of investigating whether there was a reason to doubt the truth of the original source's claims. Yeah. As for the other anonymous declarations proffered by Powell, Dominion alleges that they bear distinct signs of having been drafted by Powell herself, and certain sections of two of the declarations are almost completely identical. And then, you it goes into the lack of facts that the expert reports are inherently unreliable, that they had good reason, that was an expert who publicly claimed that George Soros, President George H.W. Bush's father, Prescott Bush, the Muslim Brotherhood and leftists helped the deep state form Nazi Germany in the 1930s, Which would have been a remarkable feat for Soros, who was born in 1930. The court goes on for eight pages saying relied on nonsense. Dominion has adequately alleged that Powell made her claims knowing they were false or at least with serious doubts as to their truthfulness.

0:34:01 Thomas: Sure.

0:34:52 Andrew: What about Mike Lindell? Mike Lindell, uh, Dominion contends that his claims were so inherently improbable that only a reckless man would have made them, that he intentionally disregarded evidence of their falsity, that he relied on obviously unreliable sources and made his claims in accordance with the preconceived narrative that he constructed for a financial gain. All of which, you know, seems to be true. For the profit motive. Dominion right.

Alleges that Lindell knew that appealing to Trump supporters would be good for business and that his true motive is apparent in the repeated tying together of his election fraud claims and the promotion of MyPillow products. And there is, like, he went on Seb Gorka's podcast and and said, "If any, you know, true patriots and supporters of President Trump, you can use the code, the promo code Gorka, to get, you know, 50 off of my pillow," you know, um, Powell, Lindell correctly notes that the allegations of a defendant's ill will or profit motive without more do not satisfy the actual malice standard. But again, Dominion has alleged more. In addition to alleging that Lindel's claims are inherently improbable, that his sources are unreliable, that he has failed to acknowledge the validity of the countervailing evidence, Dominion has also 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. In totality, it is adequately alleged that Lindell made his claims knowing they were false or with reckless disregard for the truth.

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0:40:17 Andrew: I'm going to skip over the personal jurisdiction argument, the deceptive trade practices claims, but again, they get smacked down on the law on all of these. Right. So these are some technical legal arguments of, you know, hey, I didn't really do anything in Washington, D.C., so you have no personal jurisdiction over me or you should transfer this matter to either Texas, which is where Sidney Powell wants to transfer it or to the District of Minnesota, which where Mike Lindell wants to transfer it. And the court's like, no, are on TV in Washington, D.C. all the time. This is about the president of the United States. We're not transferring the case. We have this court has adequate jurisdiction over you.

0:41:04 Andrew: You might notice that I have not mentioned everyone's favorite decomposing lawyer at this point, Rudy Giuliani. And that is because Rudy Giuliani declined to join the losing arguments made by Sidney Powell and Mike Lindell in favor of a different kind of losing argument. And this is a Rule 9 motion to dismiss. It has three parts. First, that Dominion is a corporation and may therefore only recover lost profits. Second, that lost profits are special damages subject to Rule 9G's heightened and pleading requirements, which Dominion has failed to satisfy. And third, that each individual corporate entity must plead its own damages amount instead of pleading damages as a group.

It's always fun when the court begins with, "It is easiest to start with Giuliani's third argument," which goes to the court's subject matter jurisdiction. Giuliani argues that the complaint should be dismissed because the three corporate plaintiffs have failed to plead distinct legal injuries that are unique to each plaintiff. And then the court says, yeah, that's not the law. For a plaintiff to establish standing in Article Three. It must show, among other things, that has suffered an injury, in fact, that is concrete and particularized. It must exceed the diversity requirements, which, you know, are seventy five thousand since this

0:42:25 Andrew: Is for a billion dollars. It exceeds that.

0:42:25 Thomas: Sure, I've answered a hundred questions in a row on that.

0:42:29 Andrew: Yep. Giuliani does not seriously dispute that the plaintiffs have alleged an injury, in fact, nor does he argue that they have failed to allege complete diversity, nor does he contend that they have failed to plead over seventy five thousand dollars in damages. Instead, Giuliani argues that each plaintiff must plead that it has suffered more than seventy five thousand dollars and damages and that all plaintiffs have failed because the complaint alleges amounts only with respect to Dominion, which for purposes of the complaint refers to all three corporate plaintiffs. And then the court says, uh, with respect to suits brought under 1332, which is the diversity statute, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. So, no, for the court to reject.

0:43:10 Thomas: Yeah, so this is just a real attempt to get out on a technicality, it sounds like, and some of your best friends are technicalities, but, uh, yeah

0:43:14 Andrew: Yeah. So look, is. Yeah, that's right. Look, there There is real litigation here when you have a state claim and it's obviously not enough to satisfy the jurisdictional amount. And so you start adding in multiple plaintiffs with multiple undisclosed, right? And you're just trying to get over that $75,000 hurdle by aggregating a bunch of things together that don't actually belong, right. And there's a fair amount of case law on that. This is not that case, because, again, Dominion has alleged a billion dollars in damages. So, you know, it didn't need help from its other corporate entities to get over the seventy five thousand dollar line. Seventy five thousand dollars is a rounding error for a billion.

Right. And the court notes that to reject the presumption, it must appear to a legal certainty that the claim is really for less than the jurisdictional amount. And then it says, drawing, and again, drawing reasonable inferences in the plaintiff's favor, each corporate entity has pleaded injuries exceeding $75,000. At the very least, plaintiffs allege a total of $651,735,000 in damages, which obviously means that at least one plaintiff suffered more than $75K in damages. Thus, even if two of the Dominion plaintiffs had not individually pleaded that they met the amount and controversy requirement, the court could exercise supplemental jurisdiction over their claims. You just answered a question on that, right? So when cases are, uh, inextricably

0:44:06 Thomas: Geez. Yeah,

0:44:51 Andrew: Linked, yeah, even if each and every element does not satisfy each and every element of diversity, uh, you could still maintain supplemental jurisdiction. So it's working its way backwards. It's like, all right, the amount in controversy is a super dumb argument. Next, Giuliani argues that Dominion is required to and has not pled lost profits with the specificity required by Federal Rule Civil Procedure 9G. This argument rests on the premise that Dominion is required to plead damages for its defamation claim. Under D.C. law, defamation may be actionable as a matter of law, irrespective of actual harm, that is, defamation per se, or, if not, when the plaintiff pleads special harm. There is no question that Giuliani's statements accusing Dominion of election fraud constitute defamation per se.

0:45:40 Andrew: If Dominion were an individual, damages would be presumed. And we've talked about that before. Damages are an element of the claim. Some things in defamation are so bad that you can allege them without having to say you've suffered any damages. Right. And saying, yeah, there's there's the loathsome disease part.

0:45:57 Thomas: There's something, there's old-timey, like, character things, like if you're a, you lose them, you're

0:46:03 Andrew: Right. Yeah. And look, breaking the law is like having a loathesome disease. Is There's defamation per se. Giuliani contends that damages are not presumed for corporate plaintiffs in the defamation, per se, context. He relies on three separate cases. Right. The first is dicta, and the second two are irrelevant. And finally, concluding, the court is not aware of any case requiring a corporate plaintiff alleging defamation per se to plead damages specially, that is to itemize them. And by its terms, Rule 9G does not include such a requirement. In any event, Dominion has pled lost profits with the particularity required by 9G. Under publication.

0:46:03 Thomas: Right

0:46:54 Andrew: Here, Dominion alleges that Giuliani made defamatory statements about its involvement in the 2020 election, that the people who believe those statements made threats to Dominion employees and board members, and that those threats required Dominion to spend more than $565,000 on private security to protect its employees. And I wanted to highlight that because you may recall that five hundred and sixty five thousand dollar number. That was precisely the area of the complaint that I zoomed in on back in January when we first covered when this was filed. And I said, I don't know if Dominion is going to get a billion dollars, but they're definitely going to Get the five hundred $165,000 for increased security. Right. It is very clear that this is the the textbook.

0:47:36 Thomas: That's a pittance, though, I hope that's not all they get

0:47:37 Andrew: Oh, yeah. Oh, absolutely. But it is, it was in there to survive, to to allow the court to to say precisely this, which is, yep, you have specifically itemized the particularized damage that you have suffered as a result of this defamation. Right. Like you do not get a more particularized list of your damages than saying, "They said X." After they said Ex, lunatics started showing up at our facilities and we had to hire a whole bunch of security guards. And here's the receipt for those security guards, right? Right. Like that is, that is as clear as 9G gets. Right. In terms of identifying with specificity, as compared to, "Oh, and by the way, this has also hurt us in a number of other ways." Right. Which are all outlined in the motion to dismiss.

0:47:38 Thomas: Okay. Yeah

0:48:30 Andrew: And again, I pointed out Rudy Giuliani failed to join with with Sidney Powell and Mike Lindell on the. No, this isn't defamation. This is just, you know, this is all just ephemeral. Opinion stuff uh presumably because he thought those arguments sucked which they did um Sydney Powell, Howard Kleinhandler, and the My Pillow guy declined to join in with Rudy, with Rudie Giuliani, on the uh no no no, this is definitely not specific enough to constitute uh damages and defamation claim, presumably because they thought those agreements sucked. Um, happily uh that means means despite the outcome, each of them were right about a thing. And so I think we should be happy for them for that. So for the foregoing reasons, this is this is great.

0:49:17 Andrew: The court denies defendants' motions to dismiss in full. Period.

0:49:21 Thomas: No kidding, and we're resentful that you made us even explain some of those.

0:49:26 Andrew: Exactly right. In So, contrast to the imaginary Kraken lawsuits that went nowhere, as we told you, this is the Dominion lawsuits lawsuits against the individuals spreading the big lie about the election are valid and will go forward. And and and I, for one, love to see it.

0:49:43 Thomas: And You Know I know we've broken it down but like my impression from doing the show with you is that these are kind of high bars usually for cases like this Like defamation You know, and and this seems to clear all that. It survived the motions to dismiss. Gosh, I really am just rooting for Dominion so hard. I Just Want Them to Win Massive Judgments against these assholes For what they've done. And there's legitimate, I mean honestly, you know, forget all the politics, imagine if you just ran a business of some kind and then these people come along and and spread all these very uh definitely fact claim type lies about your business and how horrible it is and how you cheat and do all this, like they owe you money when when it turns out that they completely fabricated it, right? Yeah.

0:49:53 Andrew: Yeah, I know. I feel a little bad like. Oh, yeah, absolutely. That's why defamation exists.

0:50:38 Thomas: All right, just goes to show You how confident we are in our Crowd Health Is a Scam episode uh

0:50:40 Andrew: It does indeed.

0:50:46 Clip: And thank you, Let's go!

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0:53:43 Andrew: That's excellent yeah

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0:59:41 Thomas: MSNBC spy. Oh right.

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1:00:39 Thomas: Holy smokes. Smokes.

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1:02:22 Thomas: That's

1:03:05 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:03:11 Thomas: Now it's time for T3BE answer time. Oh, it feels like this was another straightforward one. I'm worried, how many straightforward ones I get in a row, so maybe I got it wrong. Let's find out.

1:03:21 Andrew: All right, Thomas, this was, uh, with impeccable timing, a question about an insurance policy. Yeah.

1:03:28 Thomas: Hell Oh no, yeah, yeah.

1:03:30 Andrew: Yeah, a man, uh, brought a federal diversity action against his insurance company, again, that's just to say, use federal law here. Right. So So, in particular, the federal rules, the civil procedure to adjudicate, because not every state's internal civil procedures match the FRCP. So, sued his insurance company, alleging that the company breached its duty under the policy by refusing to pay for his mountain biking accident. At the trial, the man presented evidence that he paid the premiums, that the policy covered personal injury related medical expenses arising from the accidents, then rested his case. After he rested his case, the company presented evidence that the policy contained an exclusion for unduly risky behavior, and then put on a witness to say, yeah, that accident occurred in an area where there were posted signs that warned bikers not to enter.

1:03:37 Thomas: That's

1:04:22 Andrew: The man declined to cross examine the witness, and then the company closes, it arrests its case and moves for judgment as a matter of law, which we have talked about on the show. That is where you say, no, take this away from the jury, jury. There is no question of fact for the jury to resolve here. There is no way to find legally the other way, so we shouldn't even risk it, right? We should just, you, the judge, should enter judgment as a matter of law.

So should the court grant the motion? You instantly eliminated A, no, because a motion for judgment as matter of law must be made at at the close of the plaintiff's case in chief. Good elimination. I will tell you that this may trip up some of the lawyers who listen to the show because the reason this is an attractive distractor is that, as a matter of course, whenever the, if you're the defense counsel, whenever the plaintif rests, you would, you would move, you Would say, Your Honor, we move for judgment as a Matter of Law. Plaintiffs have not met their prima facie burden. And who knows? Right. I've never had

1:05:23 Thomas: When you would do it, yeah yeah it's sort of like, it just strikes me as like, you, you just take a swing at it, you know, why not, like, ah, their case was so bad, we don't even want to do any work, just dismiss or whatever and judge based on law, sure.

1:05:39 Andrew: It. Yeah. Yep. That's right. And and and it has happened. It has not happened to me. But but no.

1:05:48 Thomas: Oh I could conceive of that. I mean, I'm not the lawyer, but, but that doesn't seem like, you know, that, that out of the ordinary that someone would think they made a case and then you're like, hey, actually you didn't really make any case here and we're done. And that could happen, right?

1:06:02 Andrew: Yeah. And particularly as you go down the scale.

1:06:06 Thomas: Yeah. And I represent myself and I sue somebody for something.

1:06:07 Andrew: Yeah, yeah, Exactly right. So a motion for judgment as a matter of law may be made at any time before the judge submits the case to the jury. So you can make it. You can then renew it at the close of your own case in chief. And again, that's you typically that has been the result that has happened in my cases, right, where you move for judgment as a matter of law after the plaintiff's case in chief. And the judge says, I'm going to keep that motion sub curiae. Put on your case, counselor. Then you put on the defense case, you renew your motion. And The judge says the motion is denied. It's going to the to the jury or or grants it. Right. And again, know that you that can happen. You All also eliminated D. Yes, because the man waived his right to rebut the company's evidence by not addressing the unduly risky policy provision in his case in chief. And you said, that seems like kind of gobbledygook.

1:06:21 Thomas: Okay.

1:07:07 Andrew: It's a good elimination, but it actually isn't gobbldygook, question is, right, in your case in Chief, you have to make out a prima facie case of what you're suing for here, right? Right. And so it explicitly that the factual paragraph explicitly shows that the plaintiff did that. Right. I paid my policy. Policy covered personal injury related medical expenses. This is a personal injury-related medical expense. A policy exclusion. Oh, yeah. But your policy doesn't cover unduly risky behavior is an affirmative defense. Right. So it's not surprising to see the insurance company defendant raise that in their case.

1:07:52 Andrew: But right. This argument is you should have addressed the exclusions in your case in chief, which, no, you just have to make out a prima facie case. However, if the if the coverage, right, if it had specifically said if the coverage had said the policy covers all reasonable personal injury related medical expenses and you didn't prove that it was reasonable, that would have shifted the burden back to you. Right. Right. So, you know, it it's true if

1:08:25 Thomas: Way Or the other, does that even talk about the question of whether or not should be moved for judgment as a matter of law or

1:08:30 Andrew: That's a great question. If you failed, if the unduly risky right, suppose that instead of this being listed in the policy exclusions, which are then raised as an affirmative defense by the insurer, suppose the coverage line had said we agree to cover all all, yeah, all personal injury related expenses that are not unduly risky, then I think you would have a good argument that you have to, in your case in chief, prove that it's not, you have to at least address that. You have to say, okay, I've paid my premiums. The policy covers all non-unduly risky accidents. This was an accident and this was not undually risky because of X.

1:08:50 Thomas: Risky. Yeah. I I Hear You, I still feel like this could be gobbledygook because the question says the man waived his right to rebut the company's evidence, so like you would lose your right to even Rebut.

1:09:14 Andrew: Yeah. Oh, yeah. You know what? You know what? I wasn't reading it that carefully. Withdrawn, Counselor. You are correct.

1:09:29 Thomas: All Right. Well, I feel like even if I got this wrong, I should get a point for that.

1:09:34 Andrew: I feel like that way, too. So now the question is you and the coin took B, no, because whether the man's behavior was unduly risky is a question of fact for the jury to resolve. Leaving out C, yes, because the company's uncontradicted evidence of the man'S unduly risk behavior means that no reasonable jury could find that the policy covers his injuries. And I want to tell you, you got this one correct, Thomas.

1:09:35 Thomas: Oh, Man.

1:09:58 Andrew: I loved your analysis.

1:09:58 Thomas: I was a Little worried I was Was a little worried On that one a

1:10:01 Andrew: There is no per se rule that says you have to offer rebuttal, that you have to cross-examine a witness. The question is, right, this something that goes to the credibility of the witness or is this this something where, you know, if there's no uncontradicted evidence that you can't, even when, you know, in the law, we say, you know, you, for example, in summary judgment, you can strew all inferences in favor of the plaintiff, you know, the non-moving party, right? The question would be, all right, even if we're giving you every possible benefit of the doubt, there any factual doubt here? Well, and here you would say, yeah, this is a company witness who testified that the accident occurred in an area where posted signs warned bikers not to enter. Well, you could not enter an area. It could be Area 51. Right. Like it could be you're not allowed to enter for a lot of different reasons. That doesn't say as

1:10:06 Thomas: Dog. Has to cross-examine Oh, Interesting.

1:10:58 Thomas: Yeah, yeah.

1:10:59 Andrew: A matter of law that it's unduly risky.

1:10:59 Thomas: Good Point.

1:11:01 Andrew: This would be a harder question, right, if the testimony were, you uncontradicted testimony that it was, yeah, unduly risky, you to do here. And they had photographs and they put on an expert who said, yeah.

1:11:08 Thomas: The Guy was Doing tricks on his bike, uh-huh. Well, Actually So that's What I was going to ask you is, what if this weren't a witness, what if it was some sort of, I don't know, enter into evidence this photo of him doing a wheelie or whatever, and they, and he didn't contradict it, would that still, would that then change it to See, possibly? Oh,

1:11:31 Andrew: Well, so that would still be introduced via witness, right? You would still need a witness to authenticate the document. Um, but yeah, I mean, that's sort of where I'm going to is I don't think a single photo of him doing a wheelie would have been sufficient. But but I don'T want us to make. I DON'T want you to make the mistake next time of going too far in the opposite direction of saying, eh, you could just not cross examine anyone you please. That's true but at some point the cumulative effect of the evidence will be such that the court will say yeah all Right, there's... there's nothing left here, right?

1:11:35 Thomas: Really? Okay. Okay. Right. Yikes.

1:12:03 Thomas: That Feels Like a really hard call to make for me as an Answerer of these things, like what will be On that cross, that line, so We'll See.

1:12:08 Andrew: Like it. It I I agree, um, And I think It would be very, very difficult, right? Like, this question would have been then impossible if the sign said, "You, falling rock ahead," right? You know what I mean? Like, you switch up the evidence a little bit and now it is, right, okay, do you have to do something to contradict the evidence that you that engaged in unduly risky behavior. Witness credibility is always the thing that, you know, you're free to say, yeah, I didn't, you know, this is

1:12:15 Thomas: Yeah. Yeah, That's

1:12:46 Andrew: A company shill.

1:12:46 Thomas: What I thought, I mean,

1:12:47 Andrew: I didn'T want to.

1:12:47 Thomas: It's free For The jury to be like, well, he's wearing a, you know, a t-shirt with the name of the company on it, like, clear, this guy's a plant or something. You know, like, Something, he's Sweating Profusely, yeah.

1:12:53 Andrew: Right. Yep. It's a, it's a sweaty. Well, that's true. That, that

1:12:59 Thomas: He Actually It leaves room for all these inferences for the jury to make, I think, right? So, An old man with giant bottle lens glasses, you know, okay, so, uh, we nailed this one, the coin and I, uh, good for the coin, good for me, I'm happy, who else nailed this one, who's our big winner of T3b this week?

1:12:59 Andrew: Is often a jury. So think that's correct.

1:13:20 Andrew: Well, Thomas, this week's winner is MortgageTalkingGuy on Twitter who writes, B. Even if plaintiff punted on the location of the accident, the defendant hasn't proven that this is a lack of due care as a matter of law. Fact? Maybe, but that's what juries are for. Well, exactly right for exactly the right reasons. Very, very pithy, kind of funny. And hey, Mortgage Talking Guy, congratulations on being this week winner. So everyone, give them a follow. They are at njordan79, N-J-O-R-D-A-N-7-9 on Twitter. Mortgage Talking Guy, congratulations on being this week's winner.

1:13:59 Thomas: Our show, thanks so much for listening. It is a pleasure to hear about bad people who lied about the election maybe, facing some consequences. I'll never get tired of it, Andrew. That's my favorite topic we cover. For now, all And we'll see you for Rapid Response Friday.

1:14:12 Andrew: Me too

1:14:15 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:14:48 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.