As we detailed previously, yesterday’s press conference held by the Trump legal team was not for the faint of heart.
Sidney Powell: “The entire election, frankly, in all the swing states should be overturned and the legislatures should make sure that the electors are selected for Trump” pic.twitter.com/gA6aFVhvdt
— Jason Campbell (@JasonSCampbell) November 19, 2020
As Jonathan Turley writes, the team alleged a global, Communist-backed conspiracy to “inject” and “change” votes through the use of the Dominion computer system. It was exhausting and breathtaking. I was critical of the press conference as being long on heated rhetoric and short on hard evidence. Dominion issued a statement categorically denying the allegations.
The question is whether Dominion itself will now sue. The company denied the allegations but I often measure such denials by whether anyone actually sues. Dominion could do so and force the Trump team to reveal the evidence supporting their allegations or face potentially significant liability. I assume that counsel like Sidney Powell would not make such allegations without proof, but the press conference did not make such evidence public. But these are not just colorful but criminal allegations against named companies and by implication corporate officials and political allies.
Trump campaign counsel repeatedly accused Dominion and its officers of criminal conduct and business improprieties. Those are categories of “per se defamation” under the common law. No special damages must be shown in such per se cases. Individual officers could bring defamation claims and the company itself could bring a business disparagement action.
Businesses can be defamed like individuals if the false statement injures the business character of the corporation or its prestige and standing in the industry. In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) the Supreme Court allowed a business to sue a credit reporting agency for defamation where the agency mistakenly reported that the business had filed for bankruptcy.
Restatement Second § 561 Defamation of Corporations states:
“One who publishes defamatory matter concerning a corporation is subject to liability to it
(a) if the corporation is one for profit, and the matter tends to prejudice it in the conduct of its business or to deter others from dealing with it, or
(b) if, although not for profit, it depends upon financial support from the public, and the matter tends to interfere with its activities by prejudicing it in public estimation.”
Dominion appears to be a company with a Colorado headquarters.
There could be lawsuits in Colorado or the place of the alleged defamation. The lawsuit would likely be filed under state law but moved to federal court under diversity jurisdiction arguments.
The press conference was an explosion of potentially defamatory claims by individuals or companies. The only clear defense is truth. The team insists that it can prove these allegations. It may have to do so. Not only can the individual lawyers face such lawsuits but the Trump campaign itself could be liable under the principle of respondeat superior, where an employer is liable for the conduct of his employees when they are acting within the scope of their employment. Ironically, the Latin term means “let the master speak.” The President or his campaign could be forced to speak in a defamation case if they have not spoken in the promised court filings.
There is a question of privilege for legal claims. There is an absolute privilege for lawyers in making statements in court. That is important because we often voice allegations that impute the veracity or character of parties, particularly in criminal cases. However, that privilege is more limited outside of court. It can still apply but some courts have refused to protect statements made to the press or the public. World Wresting Fed Entertainment, Inc v Bozell, 142 F Supp 2d 514, 534 (SDNY 2001); Kennedy v Cannon, 229 Md 92, 97, 182 A2d 54, 58 (1962).
In other words, if the Trump team does not put forward this evidence in its case challenging the election, it could now be forced to produce it in a case brought by Dominion or its officers.