Jurisprudence

A New Anti-Trump Defamation Suit Shows One Way Forward Against the Big Lie

Rudy Giuliani listens as Jenna Ellis, both members of President Donald Trump's legal team, holds up a cellphone to the microphone so President Trump can speak during a hearing.
Trump’s attorneys hold up a phone so he can allegedly commit defamation. Samuel Corum/Getty Images

Civil courts are becoming the most powerful weapon against Donald Trump’s Big Lie. That’s in part because the select committee investigating Jan. 6 has stalled due to obstruction from Steve Bannon and others under investigation, and because the Department of Justice has refused to go after the ringleaders of the mob that rioted at the Capitol. As a result, civil courts have proved to be one of the only legal venues for directly confronting the people intent on destroying democracy.

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The defamation cases are already piling up. And a fresh lawsuit was just filed in a Philadelphia-based county court on Monday against Trump, his attorney Rudy Giuliani, and other purveyors of the lie that Pennsylvania Democrats stole the election for Joe Biden.

James Savage, the Delaware County Voting Machine Warehouse Supervisor, alleges that Trump, Giuliani, Trump lawyer Jenna Ellis, a right-wing legal organization that backed Trump’s attempts to overturn the election, and a pair of Republican poll watchers defamed him by suggesting he had personally added votes to Biden’s tally. Savage says that he has lost job prospects, his reputation in his community has suffered, he’s been personally accosted in the street, he and his family have received death threats, and he has suffered two heart attacks as the result of the Trump team’s fraudulent allegations.

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Savage was in charge of a suburban Philadelphia vote machine warehouse when GOP poll watchers Gregory Stenstrom and Leah Hoopes alleged that they witnessed him use a USB card to upload 50,000 illegal votes for Biden. Giuliani and Trump amplified these claims during a hearing put on by Pennsylvania Republican legislators in November, during which the former president called in by cellphone.

This newest suit follows similar lawsuits by voting companies Dominion and Smartmatic, and at least one Dominion employee. It is further evidence that defamation law, which has “historically been employed by the powerful to silence critics,” according to University of Utah law professor RonNell Andersen Jones, is beginning to play an outsized role in confronting the Big Lie.

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“It has been less obvious to us that defamation law can be useful as a pro-democracy, anti-disinformation tool. But it feels like we might be standing on the cusp of a set of cases that are trying to do this,” Andersen Jones told me over email.

In the Colorado case by a Dominion employee named Eric Coomer, the court has already taken depositions of Giuliani, former Trump attorney Sidney Powell, and others. The judge in that case is currently deciding whether to allow the case to go forward and against which plaintiffs. Savage’s attorney, Conor Corcoran, used Giuliani’s deposition in his own legal filing, pointing to statements by Giuliani acknowledging that he had an obligation to verify information before sharing it and that he hadn’t done so while compiling and spreading many lies about voter fraud. (Corcoran also pointed to a New York court’s comprehensive dismantling of Giuliani’s reckless voter fraud allegations in its decision to suspend his bar license.)

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“Basically, plaintiffs in these defamation suits are looking to flip the script. They are asserting that some aspects of the disinformation campaigns sufficiently targeted them and their reputations that they warrant relief in tort law,” Andersen Jones wrote. “It is really interesting that defamation, of all things, could turn out to at least sometimes be the mechanism we use to combat disinformation from authoritarian influences.”

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In Savage’s case, proving the elements of defamation for every defendant will be a challenge, but it appears that some of those elements are very strong indeed. He’ll have to prove he was the specific target of false claims that were put out with knowledge that they were false or reckless as to their veracity and that demonstrably damaged his reputation.

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As to that last element, Savage has apparently suffered real harm. “As a direct and proximate cause of said false statements, Mr. Savage’s reputation has been damaged, his earning capacity has been greatly diminished, and he suffered two (2) heart attacks,” the lawsuit claims.

And the claims against him are certainly false: As the filing notes, a number of Pennsylvania-based judges dismissed as without merit the many allegations of fraud by the Trump campaign.

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What will be more difficult to prove is that every defendant was taking part in a scheme to specifically accuse Savage of committing fraud, but even here he has some prospects.

During the November Gettysburg hearing, at which Giuliani and Trump were featured performers, Stenstrom said that he had “personally observed USB v-cards being uploaded to the voting machines by the voting machine warehouse supervisor on multiple occasions” and that “the result […] was 50,000 votes” for Biden. The direct implication was that Savage had committed fraud that added to Biden’s total by 50,000.

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“People ask me all the time, ‘how do people commit crimes,’ I know there’s a lot of theories here and I always look for the simplest thing,” Stenstrom added, making his allegation clearer. “Sticking USB sticks in, putting ballots in, very simple thing.” Stenstrom also repeated his claim against Savage on national television on Sean Hannity’s Fox News show. And at a December press conference put on by the right-wing legal group the Thomas More Society, another defendant in this suit, Stenstrom again identified Savage by his title and implied that he had committed fraud.

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“I saw the voting machine warehouse supervisor for Delaware County carrying in unsealed bags of unsecured USB v-card drives, which he inexplicably proceeded to plug into computers, the vote counting computers, and upload into the official vote tally,” Stenstrom said. “When he was finished, the vote count shot up by 50,000 votes for Vice President Biden.”

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Hoopes, another poll watcher, meanwhile, implied during the Gettysburg hearing that Savage had a political motivation to commit fraud, saying, “The voting machine warehouse supervisor is a Bernie Sanders delegate who was also solely responsible for every scanner, machine, v-card, and all machines with absolutely zero experience in this area.” The lawsuit claims that this was both an accusation by Hoopes and an acknowledgment that she was aware that someone with “absolutely zero experience in this area,” such as Savage, could not have had the technical capacity to commit the fraud she was insinuating.

Finally, there’s Giuliani, Trump, and Ellis, who all to some degree promoted Stenstrom’s false allegation at the Gettysburg hearing.

“This voter fraud that took place, which as you will see from the witnesses that we call, had several dimensions to it, several different ways in which it was done,” Giuliani said before introducing the demonstrations of Stenstrom and Hoopes. “What are the odds that [votes] all switched? Overnight? They just switched, by the next day. … I think you’re gonna see how that happened.” Ellis, for her part, said she “echo[ed] everything” Giuliani had just said. And when he called into the hearing on Ellis’ cellphone, Trump specifically repeated Stenstrom’s false allegation that 50,000 votes had been switched and that “people put votes in, and they put ’em in illegally, they put ’em in after the polls closed.”

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The fact that Trump, Ellis, and Giuliani don’t directly reference Savage’s position might make his case against them more difficult, but still possible, even as he appears to easily meet this element of defamation law against the GOP poll workers.

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“The injured party just has to show that the defamatory statement is ‘of and concerning’ him. It can be that he is explicitly named, but it is also possible for this to happen through descriptions or titles or reference to the position he holds,” Andersen Jones wrote. “Much looser references by others who echo the allegations but don’t echo the descriptive identification may well fall short of meeting this element.”

The biggest targets of the suit appeared to repeat the lies but apparently didn’t repeat the initial libel verbatim with all of the details that identified the plaintiff. “The case is obviously stronger when there is an assertion of direct identification and more explicit defamation,” Andersen Jones pointed out.

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For his part, Corcoran argues that his client will be able to overcome this obstacle because Trump and Giuliani, in essence, planned to have Stenstrom defame Savage for them as part of a piece of “concerted political theater.”

“It’s clear that they set up Stenstrom to propagate that lie,” he told me. To that end, the lawsuit alleges, in a separate count from the defamation claim, a “civil conspiracy” that Trump, Ellis, and Giuliani “had a common purpose of unlawfully” pushing out Stenstrom’s “false and defamatory statements and/or insinuations” about his client.

“In this particular instance they all got together and planned that piece of political theater to produce that specific piece of defamation against my guy and I think that’s why Trump and Giuliani are on the hook too,” Corcoran said. “That’s why there’s a civil conspiracy count here too: because they planned this.”

Ultimately, even if Giuliani, Trump, and Ellis manage to survive this legal challenge unscathed—which is far from certain—it seems that there will be a price to pay for at least some of the figures who falsely accused fellow citizens and election workers of committing crimes and taking part in a fraud that did not happen. It may not be enough to end the Big Lie, but it’s a good start.

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