The wild ride that made Rudy Giuliani, 'Kraken' lawyer Sidney Powell, and Fox News targets in the mother of all defamation cases
The 2020 presidential election was “the biggest crime in American history,” attorney Sidney Powell told conservative host Sean Hannity on his syndicated radio show in mid-December.
No, even that didn’t capture it. It was “the greatest crime of the century if not the life of the world,” as she told right-wing podcaster John Fredericks a week later.
These would not have been overstatements, had her claims been true. The crux was this: “President Trump won by … millions of votes that were shifted to [Joe Biden] by software that was designed expressly for that purpose,” as Powell put it to Fox News’s Maria Bartiromo in mid-November. The software, she maintained, had been crafted in Venezuela roughly 16 years earlier, on the express orders of the late Venezuelan strong man Hugo Chávez.
Powell had a crucial sideman in trumpeting these astonishing claims: Trump’s personal attorney himself, Rudolph Giuliani—the once esteemed former U.S. attorney and mayor of New York City.
For more than two months—from election day till well after the bloody sacking of the U.S. Capitol on Jan. 6—Powell and Giuliani peddled mind-bending voting-machine-fraud accusations on such platforms as Fox, the One America News Network (OANN), Newsmax Media, “The Rush Limbaugh Show,” Steve Bannon’s “War Room” broadcast, the Washington Examiner, The Epoch Times, the American Thinker, and many more.
Alas, the 2020 election was not the biggest crime in American history. But Powell’s and Giuliani’s crusade to overturn it may be the biggest libel case in American history. Never have so many media outlets and personalities amplified, over such a sustained period of time, such inherently implausible assertions that were so manifestly damaging to the reputations of identified businesses and individuals.
This article provides the truly unbelievable narrative of the propagation of their myths—the factual timeline against which numerous libel defendants’ conduct will eventually be judged. What did they pretend to know and for how long did they pretend to know it?
It’s a story of our times. It’s the tragicomic saga of unhinged paranoids leading shameless mercenaries in the service of an authoritarian narcissist. It’s a cross between Tom Wolfe’s satiric novel about greed in New York, “Bonfire of the Vanities,” and the Beatles’ trippy classic, “Lucy in the Sky with Diamonds.” But it’s also a deadly serious chronicle about the greatest current threat to our democracy: disinformation. Finally, it’s about lawsuits that—in the wake of Trump’s second impeachment acquittal—might yet hold someone accountable for the lethal election myths that unleashed the Jan. 6 mob attack on the Capitol.
“There are economic incentives to appeal to people who want to believe untruths,” says David Schulz, a media lawyer at Ballard Spahr and a clinical lecturer at Yale Law School. “And that becomes a narcotic. You air misinformation because you know people will watch. I don’t have a good answer for that.”
Lawsuits seeking billions of dollars
In January and February, the two voting-device companies targeted by Powell and Giuliani sued them in three separate cases. Dominion Voting Systems filed two federal court cases in Washington, D.C., each seeking $1.3 billion in damages, while Smartmatic is asking for $2.7 billion in New York State Supreme Court in Manhattan. Smartmatic also named Fox Corp., (FOX), Fox News Network, and three of its hosts, Bartiromo, Lou Dobbs, and Jeanine Pirro, as co-defendants in its suit. (Dobbs’s show was cancelled the day after the suit was filed.)
In February, Dominion lodged another federal case, this one against Mike Lindell, the My Pillow Guy, who had championed Powell’s claims as a guest on Newsmax and, later, in a “docu-movie” for OANN. Incredibly, OANN aired the piece at least seven times—as recently as February.
Separately, a Dominion official filed his own suit in December, in a state court in Denver, based on accusations leveled against him personally. That individual, Eric Coomer, has sued Powell, Giuliani, OANN, Newsmax, the Trump Campaign, and four others.
“Defendants’ story was a lie,” Smartmatic alleged in its complaint. “Overnight, Smartmatic went from an under-the-radar election technology and software company with a track record of success to the villain in Defendants’ disinformation campaign.” Its lead lawyer is J. Erik Connolly, who, in 2017, obtained one of the largest media defamation settlements in history—reportedly $177 million—for a beef producer who sued Disney-owned ABC News (DIS) for disparaging one of its products as “pink slime.”
“The recent attacks on the democratic process are not singular or isolated events,” said Dominion CEO John Poulos in announcing his company’s first lawsuit in January. “They are the result of a deliberate and malicious campaign of lies over many months.” Dominion’s lead lawyer is Tom Clare, a former Kirkland & Ellis partner who won a $26 million defamation verdict against a pharmaceutical company called Puma Biotechnology (PBYI) in 2019, and a famous $3 million verdict against Rolling Stone in 2016 over an article falsely alleging that a University of Virginia official had been indifferent to an alleged campus gang-rape.
Smartmatic, Dominion, and their respective attorneys declined comment for this article.
Powell and the attorneys representing her did not return messages.
Giuliani could not be reached for a comment. When Dominion sued him in January, Giuliani issued a statement saying that the suit “will allow me to investigate [Dominion’s] history, finances, and practices fully and completely. . . . It is another act of intimidation by the hate-filled left-wing to wipe out and censor the exercise of free speech, as well as the ability of lawyers to defend their clients vigorously. As such, we will investigate a countersuit against them for violating these constitutional rights.”
Fox said in a statement last month, when Smartmatic filed its suit: “Fox News Media is committed to providing the full context of every story with in-depth reporting and clear opinion. We are proud of our 2020 election coverage and will vigorously defend this meritless lawsuit in court.”
Fox quickly moved to dismiss Smartmatic’s claims, which it characterized there as “a legal shakedown designed to chill speech and punish reporting.” It has retained Paul Clement, a former Solicitor General under President George W. Bush and one of the nation’s leading Supreme Court advocates.
“When a sitting President and his surrogates claim an election was rigged, the public has a right to know what they are claiming, full stop,” Clement wrote in that motion. “Interviewing lawyers advocating for the President is fully protected First Amendment activity, whether those lawyers can eventually substantiate their claims or not.”
Still more suits are likely, the voting companies’ attorneys have intimated. OANN and Newsmax are among those that are known to have received their retraction demands.
Former President Trump himself might be off the hook due to a 1982 Supreme Court precedent granting presidents “absolute” immunity from civil suits for statements within the “outer perimeter” of their official duties. But no such privilege protects his campaign, whose legal team Giuliani led.
“They can shift votes in real time”
The extremely odd couple leading the crusade weren’t always on the same page. As early as Nov. 22, Giuliani expelled Powell from the president’s legal team after other Republicans complained that she was unhinged. He also never joined her lawsuits to block swing-state elections certifications—which she began filing in late November—perhaps fearful of judicial sanctions for baseless filings. Yet he never stopped trumpeting the wildest of her claims on conservative media.
It’s no mystery why. While his legal team was throwing a slew of dubious claims at numerous courtroom walls—dead people voting; midnight ballot dumps; procedural improprieties—only Powell was propounding a systemic fraud that held out hope of upending the entire national election, nullifying results in all six swing states that had broken for Biden: Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin.
The hitch was: Her theories were insane. They went something like this. All the swing states had used voting-machine software that, Powell alleged, had been originally designed to rig elections for the late communist dictator Hugo Chávez in Venezuela.
That software employed “algorithms” that could “weight” or “shave” votes, according to Powell. Those algorithms could dictate, say, that “a Biden vote counts as 1.25 and a Trump vote counts as .75,” as she asserted at an official Trump campaign news conference on Nov. 19.
The software also contained “backdoors,” Powell maintained. “They can stick a thumb drive in the [voting] machine, or upload software to it, even from the internet,” she told Fox’s Bartiromo in mid-November. “They can do it from Germany or Venezuela, even. . . . They can shift votes in real time.”
Who were “they”? It was never clear. Giuliani said they were bosses in “10 big Democrat-controlled … crooked cities.” Powell, on the other hand, suspected Cubans, Chinese, or Iranians who “should be investigated by military intelligence.”
Who supplied the crooked software? Powell and Giuliani named Smartmatic and Dominion. They claimed that these distinct companies were actually “inextricably intertwined,” as Powell falsely told Fox’s Lou Dobbs and Jeanine Pirro in separate appearances in November. That claim was the linchpin to making the conspiracy work. While Smartmatic had a connection to Venezuela, Smartmatic had been used in only one U.S. election district in 2020—Los Angeles County—where the results had never been in doubt. Dominion, on the other hand, had been used in at least some districts in every swing state. Accordingly, Powell and Giuliani had to posit that Dominion and Smartmatic were effectively one and the same. So they did.
Why did all these state elections officials—mostly Republicans—choose Dominion software? Were they ignorant of its purportedly grave vulnerabilities? Far from it, Powell claimed. They were “in on the Dominion scam,” she told Newsmax in mid-November. The companies “paid kickbacks and benefits to families of public officials who . . . got them their government contracts,” she said in a Washington Examiner podcast. In addition, the officials were getting “election insurance,” she said, meaning they were using the rigged software themselves to guarantee their own re-elections.
Powell’s stories fared poorly before federal judges. In late November and early December Powell filed four lawsuits, which she famously predicted would “release the Kraken”—a sea monster of Scandinavian legend. All four were tossed within two weeks.
By then, her claims had already been rejected by a bipartisan array of seemingly every credible authority who looked into them. That included the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, or CISA (on Nov. 12); 59 of the nation’s most prominent election security experts in academia and private industry (Nov. 16); Trump-appointed Attorney General Bill Barr (Dec. 1); and elections authorities in all 50 states (by Dec. 14, when they certified their states’ election results). The 59 election experts assessed the voting-device fraud claims as either “unsubstantiated” or “technically incoherent.”
Yet Powell and Giuliani pressed on—and Trump World media kept handing them megaphones. In her appearance on “The Rush Limbaugh Show” on Dec. 29 (with Todd Hermann filling in as host), Powell’s claims were approaching delusional gibberish:
“We know that the VPNs of virtual protocol—something or other for computers—I’m not a computer geek … anyway, they—the Dominion people—left those open the night of the election, unencrypted, so anybody could get in. We know that the packets of information went to Serbia and Liechtenstein and Spain and Venezuela, and Hunan, China, and Hong Kong. …. They erased their … audit files and their adjudication files where they dumped over 68 percent of the ballots into a bin that they call adjudication. … And then an individual with no scrutiny whatsoever decides what to do with those.”
To this day, neither Powell nor Giuliani have ever retracted their claims.
A wide swath of conservative news outlets are waking up with hangovers after a months-long bender, discovering with horror what they did during their mental blackouts.
One can almost feel sorry for them, because our law has evolved in such a nonintuitive way. Shouting “rigged election”— without more—is absolutely protected political speech or opinion.
But while undermining democracy is fair game in our legal system, undermining a business’s future earnings is not.
“We essentially have no recourse against people who knowingly disseminate false information in the political sphere,” says Schulz. Yet when “speech veers from the purely political to things that damage reputations,” Schulz continues, we do have a remedy. It’s called libel law.
‘Reckless disregard for the truth’
To be sure, that exception is narrow. Legally, the voting-device companies will likely be considered “public figures” in this context, according to three defamation experts, which means that those smearing them—and the news media hosting the smearers—will get extremely wide berth. Defendants can be held liable only for statements made with “actual malice”—the famous term-of-art meaning knowledge of falsity or “reckless disregard for the truth.” The defendant must have “entertained serious doubts as to the truth” of his or her assertions—a very high bar for plaintiffs to meet.
As a consequence of these First Amendment-derived protections—long cherished by liberals and press organs of all political stripes—Fox and other media defendants will have strong defenses.
Yet even they might not be home free given the jaw-dropping facts of this case.
“They knew from early on that Sidney Powell and Rudy Giuliani were making statements without backing them up with anything like evidence,” says Robert Rabin, a Stanford Law School torts law scholar who has written about libel law and taught courses on the protection of personality.
(The fact that a media company merely hosts or repeats someone else’s defamations does not immunize them from libel claims. Traditional media are subject to different rules than social media platforms—like Twitter or Facebook—which, under Section 230 of the Communications Decency Act, are immune from liability for users’ defamations.)
As for Powell and Giuliani themselves, their defenses may be more challenging. “I don’t think it will be a defense that they believed their statements to be true,” says Schulz, “if there was no reason to think that they were true, and they were inherently suspect because so fantastical.”
These cases will determine what legal checks, if any, remain on disinformation in our society. Because if this ain’t defamation—nothing is.
A shift from Trump’s initial warnings of election ‘fraud’
For months before the election, Trump had warned that any result that pegged him as the loser could only have been achieved through fraud. But most of his pre-election rumblings had predicted frauds involving mail-in ballots—being used in unprecedented numbers because of the COVID-19 pandemic.
On election day, however, attorney Sidney Powell broached the possibility of something more systemic. In an interview with OANN’s White House correspondent, Chanel Rion, while referring to the “many multifaceted efforts the Democrats are making to steal the vote,” Powell casually dropped a whopper. The Democrats had “developed a computer system to alter votes electronically,” she said, without elaborating.
But while undermining democracy is fair game in our legal system, undermining a business’s future earnings is not.
Two days later, Powell showed up at the Trump Campaign headquarters uninvited, according to an account later published in the Washington Post. She began homing in on Dominion Voting Systems as a potential target, a campaign official told the paper. The advantage of such a strategy, she explained, was that it would impugn the votes in so many states. Two campaign officials rebuffed her suggestion, because she offered no evidence.
“What you saw with Powell,” one official told the Post, “it wasn’t shoot first and ask questions later. It was shoot first and don’t ask questions at all.”
“More testosterone than all of them put together”
Powell, 65, was once a widely respected appellate lawyer. As of the time of these events, she was still that in Trump World. Outside of it, some people had begun scratching their heads.
She grew up in North Carolina, attending college and law school at the University of North Carolina in Chapel Hill. In 1978, at the precocious age of 23, she became a federal prosecutor in San Antonio. In 1989, having transitioned toward appellate work, she went into private practice. In 1993 she set up her own appellate practice with offices in Dallas, Texas, and Asheville, N.C. From 2001-2002 she was president of the American Association of Appellate Lawyers.
In 2004, she was retained to handle the appeal of a Merrill Lynch officer who had been convicted as a peripheral figure in the Enron scandal. In a book, she later described her first meeting with her dispirited client, James A. Brown, and his team of trial attorneys: “I seemed to have more testosterone than all of them put together.”
Powell won reversal of certain charges against Brown, but not all of them. When the case went back to the trial court, she persuaded the judge to order the prosecutors to turn over the investigators’ raw notes that had been summarized in the FBI reports previously provided to Brown’s original trial attorneys. She then claimed that the FBI reports had omitted crucial details supporting Brown’s innocence, and characterized the omissions as “egregious prosecutorial misconduct.”
U.S. District Judge Ewing Werlein, Jr., rejected her claims. “Amidst the huge volume of materials and briefing that Brown has unloaded on the Court,” he wrote, “only a scant few possibilities of ‘suppressed evidence’ can arguably be found,” he wrote, and even those could not reasonably have impacted the jury’s verdict. Werlein’s ruling was unanimously affirmed on appeal.
Nevertheless, in 2014 Powell self-published a book about the case, entitled “Licensed to Lie: Exposing Corruption in the Department of Justice.” She alleged that at least three prosecutors with the Enron Task Force—now among the most eminent litigators in the country—had engaged in “outrageous,” “overzealous,” “dishonest,” and “blatant” abuses. (The book’s cover shows a scale of justice, with a torn photo of the White House in one pan, and three skulls stacked in the other. On her website, Powell offers an edition with a personalized inscription for $150.)
One of the book’s targets was Andrew Weissmann, who had been deputy chief of the Enron Task Force. (Weissmann declined comment for this article.) In June 2017, when then-Special Counsel Robert Mueller III appointed Weissmann to a lead role in his investigation into Russian interference in the 2016 election, Powell became a frequent Fox News guest, offering commentary on Weissmann’s alleged abuses.
Powell’s stature in pro-Trump circles was further burnished in June 2019, when she took on the defense of Lt. Gen. Michael Flynn, Trump’s former national security adviser. (Trump personally cheered Powell’s hiring, tweeting: Flynn “has not retained a good lawyer, he has retained a GREAT LAWYER, Sidney Powell.”)
By then, Flynn had pleaded guilty twice to lying to FBI agents. But Powell moved to withdraw his plea, following the template she had used in Brown’s case. She alleged “egregious prosecutorial misconduct,” claiming the official FBI reports had omitted crucial snippets contained in the investigators’ raw notes that supported Flynn’s innocence. This time her pleas fell on sympathetic ears—those of Attorney General Bill Barr, who moved to dismiss Flynn’s case. Viewing Powell’s claims with extreme skepticism, U.S. District Judge Emmet Sullivan balked at Barr’s request, while more than 1,900 former federal prosecutors signed a letter protesting it. The issue became moot when, on Nov. 25, Trump pardoned Flynn, ending the case.
The Hammer and Scorecard
On Nov. 6, Fox’s Lou Dobbs invited Powell to his show to discuss voting fraud. She did not disappoint. She called on the Justice Department to investigate the “likelihood that three percent of the [national] vote total was changed in the pre-election voting ballots that were collected digitally.” At this stage, she blamed the fraud on computer “programs” called “The Hammer” and “Scorecard.”
“It can all be documented,” Powell said, promising to do just that in an upcoming suit.
“What you’re breaking here tonight is extraordinary,” Dobbs told Powell at the end of the segment. “Thank you … for everything you’re doing for the country and for the president.”
Powell’s astounding claim tracked an internet legend that had started circulating a few days before the election. The rumor, propagated by a conspiracy theorist of established unreliability, postulated that Biden was going to steal the 2020 election by using a purported CIA supercomputer (The Hammer or HAMR) and its software (Scorecard) which, according to the theorist, President Barack Obama had already used to steal the 2012 election.
After Powell’s appearance, then-CISA director Christopher Krebs promptly warned the public in tweets that the Hammer and Scorecard story was “nonsense,” “disinfo,” “not a real thing,” and “a hoax.”
To be crystal clear on ⬇️, I’m specifically referring to the Hammer and Scorecard nonsense. It’s just that - nonsense. This is not a real thing, don’t fall for it and think 2x before you share. #Protect2020 https://t.co/f2FpSbRXKy
— Chris Krebs #Protect2020 (@CISAKrebs) November 7, 2020
Before going further—and because our narrative is about to venture into a funhouse mirror maze—it’s worth stepping back to take our bearings in the real world. The reader needs to know some basics about both voting-device regulation in the U.S., and about the two companies that became the target of Powell’s and Giuliani’s campaign.
Although hardly foolproof, regulation of vote-casting and vote-tabulating devices does exist in this country. States are in charge, but the majority of them—including all six 2020 swing states—have opted to have their machines either federally accredited by the U.S. Elections Assistance Commission (EAC) or approved by an EAC-accredited testing lab credentialed by the National Institute of Standards and Technologies. Testing requires, among other things, inspection of source code.
The Dominion software used in the 2020 election was federally certified by the EAC. The Smartmatic software was certified under California regulations, which require approval by a state-approved testing lab.
The origins of Dominion and Smartmatic
As for the corporate histories of Dominion and Smartmatic—the companies that Powell insisted were “inextricably intertwined”—here’s what we know.
In the late 1990s, Antonio Mugica, a Venezuelan entrepreneur, began developing computer security technology while working for his father’s company in Venezuela. In 2000, Mugica and two other Venezuelans founded Smartmatic as a Delaware corporation based in Boca Raton, Fla.
After Florida’s notorious “hanging-chad” election of 2000, Smartmatic’s founders decided to branch out into computerized voting-device technology, they have said. The company developed a voting system in 2003 and, the following year, won its first election contract: a Venezuelan referendum over whether to recall President Hugo Chávez in August 2004. Chávez won. Opponents alleged fraud, but outside observers from The Carter Center called the election fair.
In 2005, Smartmatic purchased Sequoia Voting Systems, a then-struggling American company with contracts in about a dozen U.S. states. Some in the U.S. Congress—led by Rep. Carolyn Maloney (D-N.Y.)—became concerned about the company’s Venezuelan roots, possible foreign ownership, and whether its machines might be “susceptible to manipulation by its unknown creators.” The Treasury Department’s Committee on Foreign Investment in the U.S. (CFIUS) began an investigation in late 2006. Around the same time, the Justice Department started an inquiry into whether Smartmatic had won a Venezuelan contract through bribery. To avoid these “distractions,” the company said at the time, Smartmatic sold Sequoia in early 2007, and focused its elections business abroad. It eventually expanded into two dozen countries. Its parent today, SGO Group, is based in London.
Smartmatic continued operating in Venezuela until 2017. After that nation’s July 2017 election, Smartmatic founder Mugica declared publicly that the turnout had been “tampered with,” and that the Venezuelan government’s official tally differed from Smartmatic’s by more than a million votes. An elections official in the government of Nicolás Maduro—Chávez’s successor—denounced Mugica’s statement and Smartmatic terminated its Venezuelan operations.
In 2019, after a 12-year hiatus, Smartmatic returned to the U.S. to handle aspects of Los Angeles municipal contests. In 2020 it provided technology for ballot-marking devices in the county’s presidential elections. Smartmatic’s executives had hoped to showcase its successful performance there to build a new U.S. presence, according to its recent court filings. (Little did they know.)
Dominion Voting Systems, for its part, was founded in Toronto, Canada, in 2002, by CEO John Poulos. In 2010, Dominion purchased Sequoia Voting Systems—three years after Smartmatic had divested itself of it.
In 2009, Dominion and Smartmatic entered into a contract that, for a period, allowed Smartmatic to use certain Dominion technology outside the U.S. In 2012, however, Dominion terminated the contract and then Smartmatic sued Dominion. The litigation was settled in 2014. As of the 2020 election, the companies had engaged in no technology licensing for at least six years, according to the companies.
In 2018, by which time the bulk of Dominion’s business was in the United States, it moved its headquarters to Denver, Colo. By the time of the 2020 presidential election, Dominion’s technologies were being used in 28 states and Puerto Rico. It is currently the nation’s second largest voting-system provider, behind industry-leader ES&S and ahead of Hart InterCivic, Inc.
On Saturday, Nov. 7, the media called the election for Joe Biden. The next morning, Powell appeared on Fox News’s “Sunday Morning Futures with Maria Bartiromo.” There Powell outlined, broad-brush, a voting-machine fraud similar to the one she’d described to Dobbs two days earlier. This time, however, she left out the putative CIA supercomputer. Instead, the fraud was being accomplished using Dominion software, she said.
“They”—i.e., Democrats—“used an algorithm to calculate the votes they would need to flip, and they used the computers to flip those votes from . . . Trump to Biden,” Powell told Bartiromo. Powell also named several other Republicans she believed had had races “stolen” from them this way, too. In fact, she added, Powell suspected Democrats had used Dominion in the past to steal races from one another, naming Sen. Bernie Sanders as a likely victim.
“Wow,” Bartiromo said. “These are incredible charges that you are making this morning. . . . Please come back soon.”
By this time, Powell had set up a fundraising website for her crusade, called DefendingTheRepublic.org. On Nov. 10, the site said it sought to raise “over $500,000” over “the next 24 hours” to “halt certification of ballots” in five swing states.
Over the next few days, Powell issued a drumbeat of accusations against Dominion on Twitter. A temporary halt in voting in two Georgia counties, for instance, had not been an innocuous glitch, as election authorities reported, but rather “a feature of #Dominion designed to allow #Democrats to steal votes of #Americans,” she tweeted. (Twitter suspended Powell’s account shortly after the Capitol insurrection.)
Soon Powell introduced a new character into the mix—a familiar bête noire of conspiracy theories.
“#Soros #2 man did play a role” in the Dominion affair, she tweeted. This was an apparent reference to Lord Mark Malloch-Brown, who has nothing to do with Dominion. A member of the British House of Lords and a former U.N. deputy secretary-general, Malloch-Brown is, however, Smartmatic’s chairman and also serves on the board of George Soros’s Open Society Foundations. (Later, in December, the foundation appointed him as its president, effective Jan. 1.)
Even as Powell revved up the engines on her crusade, her claims were being authoritatively debunked. On Nov. 12, 10 of the nation’s top election oversight officials issued a joint statement declaring the Nov. 3 election “the most secure in American history.” Signatories included CISA’s assistant director Bob Kolasky as well as top officials at the EAC, the National Association of Secretaries of State, and the National Association of State Election Directors.
“There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised,” the statement noted. It stressed that there were auditable paper trails in all the states with close results, and that “other security measures like pre-election testing, state certification of voting equipment, and [EAC] certification of voting equipment help to build additional confidence in the voting systems used in 2020.”
CISA-director Chris Krebs then tweeted a link to the statement with his personal endorsement: “TL:DR: America, we have confidence in the security of your vote, you should, too.”
What happened to Rudy?
Up to this point, Rudolph Giuliani had stayed away from the voting-machine fraud theories. At the campaign legal team’s notorious press conference of Nov. 7—held in the parking lot of Four Seasons Total Landscaping in Philadelphia—he had spewed a wide range of dubious election-fraud allegations, but nothing about voting machines. Similarly, on Nov. 9, when the campaign started filing lawsuits, they were silent on voting machines.
But on Nov. 12, the same day CISA tried to debunk the voting-device myths, Giuliani started spewing them like a fire-hose.
The former U.S. attorney and New York City mayor who had led the city through the trauma of the 9/11 attacks was, in some circles, still esteemed and even beloved.
Elsewhere, though, his erratic behavior in later years—including three messy, expensive divorces—had eroded his cachet. His unsavory dealings with former prosecutors and oligarchs in Ukraine had recently helped trigger Trump’s first impeachment, and had reportedly left himself under criminal scrutiny for possible violations of the Foreign Agents Registration Act. Many a press article had grappled with the sad enigma: What happened to Rudy?
“Watching his invariably viral TV performances,” Jonathan Mahler had written in a New York Times Magazine profile 10 months earlier, “it often felt as if the closest thing to a unifying explanation for his behavior was his pronounced inability to experience shame.”
Giuliani first started parroting Powell’s voting-fraud claims in an appearance on “Lou Dobbs Tonight.”
“First of all, the machines can be hacked,” Giuliani said, referring specifically to Dominion’s. “There’s no doubt about it.” Then he turned to Smartmatic’s alleged role.
Dominion was “owned by” Smartmatic, Giuliani told Dobbs, “through an intermediary company named Indra.” Moments later, Giuliani said it the other way around: that Dominion owned Smartmatic.
Indra Sistemas is a Spanish company. It has nothing to do with either Dominion or Smartmatic, according to all three companies.
Giuliani then alleged that Smartmatic had been formed by Venezuelans “very close” to Chávez “in order to fix elections.” Though Dominion was “a Canadian company,” he continued (inaccurately, since it’s now based in Denver), “all of its software is Smartmatic software, so the votes actually go to Barcelona, Spain.”
Again, it’s unclear where “Barcelona” came from. (Indra is based in Madrid.) Giuliani appears to have been influenced by a then-current internet rumor which postulated that the U.S. Army had just seized servers in Frankfurt that belonged to a different Spanish company, called Scytl, which is based in Barcelona. The rumor posited that Scytl’s servers had been linked to Dominion machines involved in U.S. election fraud. Both Scytl and the Army denied every aspect of the server-seizing rumor, AP fact-checkers reported a few days later.
On Nov. 13, Scytl issued a statement asserting that it had no servers in Frankfurt and no relationship with Dominion, Smartmatic, Indra, or George Soros. (“The ballots that are cast in the U.S. are counted in the U.S., period,” says elections infrastructure expert Eddie Perez in an interview. Perez is global director of technology development at the nonpartisan OSET Institute, a nonprofit that performs election-technology R&D. “Whether the election district is a city or a county,” he continues, “all of the tabulation and counting is happening on technologies and assets that are in that district.”)
At the close of the segment, Dobbs thanked his guest: “Rudy, we’re glad you’re on the case and pursuing what is the truth.”
Dominion revised its website that day to add a page debunking the false claims that were now circulating about it. Nevertheless, over the next two days, Giuliani reiterated versions of Smartmatic-Chávez-Dominion theory on his own radio show, his own podcast, on Steve Bannon’s “War Room” podcast, and on his Twitter account (where he had more than a million followers). He said variously that Dominion owned Smartmatic; that Smartmatic owned Dominion; that Dominion was “a front for Smartmatic”; that Dominion “depend[ed] completely on the software of Smartmatic”; and that, in all cases, Dominion had been used to steal the election.
At the time Giuliani had two WABC daily talk-radio shows—a daily afternoon show and another on Sunday mornings. Both were New York-based, but accessible nationally online. He also hosted a regular half-hour YouTube show, called "Rudy Giuliani’s Common Sense," which would sometimes get as many as a half-million views.
During this period, many of his shows were wall-to-wall election-fraud accusations (though not just about voting machines). During the podcasts, Giuliani would also pitch advertisers’ products, typically advising viewers to use a “Rudy” promo code or to “tell them Rudy sent you.” The products included a service to protect against home title fraud ($595 for four years); an organization that billed itself as “the conservative alternative to AARP” ($500 for a lifetime membership); and a company that sold gold and silver (“if you call them right now, they’ll give you up to $1500 of free silver on your first order”).
A ‘great American’
The next day, Nov. 13, Powell was back on “Lou Dobbs Tonight.” Dobbs began by acknowledging that Dominion denied that their machines caused election fraud, but then said “reports contradict that claim.” He then introduced Powell as a “great American” and turned things over to her.
Vaulting over the question of how to link Dominion to Smartmatic, she simply accused Dominion of having been “created to produce altered voting results for … Chavez.” She added that Dominion “was funded by money from Venezuela and Cuba, and China has a role in it, too.” (There’s no evidence that any of those countries have funded Dominion. Sixteen years earlier, when Smartmatic won its first Venezuela contract, a company affiliated with Smartmatic did get a loan from the Venezuelan government.)
Powell then began leveling extraordinary corruption accusations against the dozens of state officials who had permitted Dominion to win contracts in their states.
“We’re beginning to collect evidence on the financial interests of some of the governors and secretaries of state who actually bought into the Dominion systems,” she said. She believed they were involved in “Hunter Biden-type graft to line their own pockets by getting a voting machine in that would either make sure their election was successful or they got money for their family from it.”
“Well, that’s straightforward,” Dobbs responded.
Powell then urged the firings of top federal officials who were failing to corroborate the frauds she was conjuring. “People in the Department of Homeland Security”—an apparent reference to CISA director Krebs—“need to be fired yesterday,” she said. “Of course, [FBI Director] Chris Wray needs to be fired, too.”
Dobbs then closed the segment: “Sidney, we're glad that you are on the charge to straighten out all of this. It is a foul mess and it is far more sinister than any of us could have imagined.”
The next day Dobbs tweeted to his then 2.29 million followers: “Read all about Dominion and Smartmatic voting companies and you’ll soon understand how pervasive this Democrat electoral fraud is, and why there’s no way in the world the 2020 Presidential election was either free or fair. #MAGA @realDonaldTrump #AmericaFirst #Dobbs.”
Read all about Dominion and Smartmatic voting companies and you’ll soon understand how pervasive this Democrat electoral fraud is, and why there’s no way in the world the 2020 Presidential election was either free or fair. #MAGA @realDonaldTrump #AmericaFirst #Dobbs https://t.co/H38VvuvSUQ
— Lou Dobbs (@LouDobbs) November 14, 2020
(Fox’s lawyers have argued, in a motion to dismiss Smartmatic’s claims against Dobbs, that Dobbs acted as a “veteran political commentator engaged in spirited commentary on deeply important matters of public concern. . . . When Dobbs brought his trademark style to commenting on the breaking story about the integrity of the election . . . he was fully exercising his rights as a member of the press to address matters of public interest. . . . [He was providing] the kind of spirited opinion commentary that viewers had come to know and expect.”)
The next day, Powell re-aired her allegations of “massive” and “system-wide election fraud” on Fox’s “Justice with Judge Jeanine,” hosted by Jeanine Pirro.
The morning after that, Maria Bartiromo had both Giuliani and Powell on her Fox News’ “Sunday Morning Futures” show, one after the other—a fierce one-two punch.
Giuliani led off. Smartmatic was “a subcontractor to other companies who sort-a hide in the weeds,” he said. “But Dominion sends everything to Smartmatic. Can you believe it? Our votes are sent overseas.”
Bartiromo then indicated that she had done some reporting of her own. “One source says that the Smartmatic system has a backdoor,” she said, “that allows the votes to be mirrored or monitored, allowing an intervening party a real-time understanding of how many votes will be needed to gain an electoral advantage.” Was that what happened?
“I can prove they did it in Michigan,” Giuliani replied. “They did it in big cities where they have corrupt machines,” he continued, naming Philadelphia, Pittsburgh, Detroit, Phoenix, and Milwaukee.
Bartiromo asked how he’d prove it.
“We have people I can’t really disclose that can describe the hardware in detail,” Giuliani responded.
Next up was Powell. She reiterated the mind-bending array of frauds that were possible using Smartmatic and Dominion software. “Their own manual explains how votes can be wiped away,” she said, apparently referencing Dominion.
The scheme was so “brazen,” Powell continued, that “every state that bought Dominion” needed to have a “criminal investigation” of the officials who chose to use it. (That would mean 28 states plus Puerto Rico.)
Then Powell called for the immediate firing of a third federal official: Gina Haspel, the Trump-appointed CIA director. Given “how corrupt the software is,” she reasoned, and how “nobody in our government has paid any attention to it,” Powell wondered “how much the CIA has used it for its own benefit in different places.”
Bartiromo asked Powell which governors or state officials took kickbacks, but Powell declined to name them.
“How will you prove this, Sidney?” Bartiromo asked.
“Well, I've got lots of ways to prove it, Maria,” Powell responded, “but I’m not going to tell, on national TV, what all we have. I just can’t do that.”
Bartiromo brought up her own reporting again. “Now I have spoken to a few whistleblowers myself this weekend,” Bartiromo said. “One source who is an IT specialist told me” about an “unusual patch” in the Dominion software. “Tell me how . . . these backdoors work.”
Powell took the baton and ran with it. “They can remote access anything,” she said. “They can do anything they want with the votes. . . . They can have the machines not read the down ballot. They can make the machines read and catalog only the Biden votes. It’s like drag-and-drop whatever you want, wherever you want.”
“Wow. This is explosive,” Bartiromo said. “Thank you so much for your work. We will be catching up with you soon.”
(Fox News’ lawyers argue that Bartiromo’s interview transcripts fail to reveal anything approaching “actual malice” on Bartiromo’s part. On the contrary, they argue, they demonstrate that “she did her job” in covering a breaking and “unquestionably newsworthy story.” She “pressed the President’s lawyers for evidence [and] repeatedly reminded viewers that the President’s lawyers needed to back up their claims with proof.” Smartmatic’s attorneys, on the other hand, characterize Bartiromo’s interactions with her guests as “a well-orchestrated dance.”)
Fox anchor issues a report from Planet Earth
With each passing day, Giuliani’s and Powell’s claims grew ever more detached from reality. On his daily radio show, “Uncovering the Truth,” Giuliani said: The “Venezuela software clearly comes from China. And our votes are being counted in Germany and Spain.” On “The Rush Limbaugh Show” (hosted by Mark Steyn) in mid-November, Powell asserted: “We have Venezuelan communists influenced by Cuban communists counting our votes, and deciding how our election is going to come out.”
Even at Fox, some were uncomfortable. On Nov. 15, the same day that Bartiromo hosted the Giuliani-Powell tag-team match, Fox News anchor Eric Shawn issued a report from Planet Earth. He drew attention to the CISA Joint Statement of three days earlier, and suggested that viewers face facts.
“Such baseless and false claims are an insult to the thousands of election officials and workers across the country, who we have seen dedicating themselves 24/7 to ensure a fair and free election for all of us.”
As far as Fox’s defense to defamation claims goes, it’s unclear which way segments like Shawn’s cut. On the one hand, Shawn’s report corroborates Fox’s argument that it covered “both sides” of the issue. (And it did. It covered both the sane side and the insane side.) On the other hand, the fact that Shawn believed the voting-machine claims were false draws into question whether other Fox hosts and executives might have also “entertained serious doubts as to their truth”—one judicial definition of “actual malice.”
The next day, Nov. 16, a group of 59 eminent scientists tried to stage an intervention. These computer security experts—including the likes of Andrew Appel and Edward Felten of Princeton; Steve Bellovin of Columbia; and Ron Rivest of M.I.T. (a co-founder of RSA Data Security)—were hardly naïve. For years, many of them had warned about the need for vigilance to protect computerized voting systems from malicious attack.
Yet they were all uniting now to try to disabuse the public of the phantasms being propagated by Powell and Giuliani.
“Anyone asserting that a US election was ‘rigged’ is making an extraordinary claim,” they wrote. “Technical, physical, and procedural safeguards complicate the task of maliciously exploiting election systems. . . . We are aware of alarming assertions being made that the 2020 election was ‘rigged’ by exploiting technical vulnerabilities. However, in every case of which we are aware, these claims either have been unsubstantiated or are technically incoherent.”
A purported fraud spanning all 50 states
That same day, something remarkable happened, according to Smartmatic—remarkable in that it hadn’t happened earlier. At about 2:55 p.m. ET, a producer at Fox Business Network reached out to Smartmatic with a question. It was the first time anyone from Fox had done that, the company says.
By then, Fox had aired at least 24 false and defamatory claims about Smartmatic, the company alleges in the suit it filed in February.
The inquiry was from a coordinating producer for “Lou Dobbs Tonight,” Alex Hooper. Hooper asked a single question: In which states had Smartmatic operated during the 2020 election?
Smartmatic’s press person answered him: Los Angeles County. “We had no involvement, direct or indirect, in any other county or state in the United States.”
That evening, Powell was back on “Lou Dobbs Tonight,” but the information Hooper had learned did not come up.
“I’ve just got some stunning evidence from a firsthand witness,” Powell told Dobbs. He was “a high-ranking [Venezuelan] military officer who was present when Smartmatic was designed in a way … that the system could change the vote of each voter without being detected.” The officer maintained, according to Powell, that dictator Chávez himself had been intimately involved in the design specs.
But even that purported revelation was dwarfed by another, which was “stunning” indeed. “The Smartmatic software is in the DNA of every vote tabulating company’s software and systems,” Powell asserted, quoting the purported military officer’s affidavit.
In other words, it wasn’t just Dominion that was infected! Every voting system in America was tainted—including those of ES&S and Hart InterCivic, according to Powell. The fraud reached all 50 states!
Dobbs was upset. “It is a deeply, deeply troubling election,” he said. “As I said earlier, the worst in this country’s history bar none. . . . Thank God we’ve got a president who will stay in the fight all the way through until we get those answers. Sidney Powell, thanks so much. We appreciate it always.”
That day, Dobbs tweeted: “There's never been a national election with this many widespread irregularities, anomalies, screw ups, disruption and plain cheating in American history! We must investigate and fix it all if we're to remain a constitutional Republic.”
Shortly after the show, Powell released a copy of the affidavit she was talking about. It was anonymous—i.e., the name of the person swearing to it was redacted. In fact, there seemed to be no signature above the signature line. The person claimed to have been “a member of the national security guard detail” of Venezuelan president Hugo Chávez.
On its face, the affiant was addressing topics he seemed to have no way of knowing. How would a former Venezuelan military officer know how Dominion’s or ES&S’s or Hart InterCivic’s software worked in 2020?
But the problems went deeper than that, according to Perez, the elections infrastructure expert.
“First,” says Perez, the notion that Dominion uses the same software design as Smartmatic “is simply false.” Beyond that, the notion that the election-rigging system the affidavit described could occur in the U.S. in 2020 is “fantastical,” he continues. “It indicates a profound lack of knowledge about the U.S. voting system marketplace, about the companies that inhabit it, and about the election administration processes.”
“At the end of the day,” Perez continues, “we’re still talking about paper ballots.” The vote-casting devices used in all the swing states—in fact, in every U.S. state except Louisiana—leave “a durable paper record. Those can be reviewed or audited or fully recounted separately from any reliance on any computing system. And that’s what happened.”
Yet this anonymous affidavit was—and would remain—the cornerstone of Powell’s case. It was the sole purported link between her tales about Chávez—who died in 2013—and any ballot cast in any swing state in 2020.
Trump’s legal strategy falls apart
The next day, in a tweet, CISA director Krebs drew the public’s attention to the 59 experts’ statement that the claims of voting-device fraud were either “unsubstantiated” or “technically incoherent.” Trump fired Krebs later that day.
ICYMI: On allegations that election systems were manipulated, 59 election security experts all agree, "in every case of which we are aware, these claims either have been unsubstantiated or are technically incoherent." #Protect2020 https://t.co/Oj6NciYruD
— Chris Krebs #Protect2020 (@CISAKrebs) November 17, 2020
Also that day, Nov. 17, the New York Times reported that when Giuliani first began representing the Trump legal campaign—about two weeks earlier—he had asked to be paid $20,000 per day. Giuliani denied the report, telling the paper that its source was “a liar, a complete liar.” But two months later Giuliani admitted, also to the Times, that his associate had, in fact, made the request—in an email. (Both voting-device companies cite Giuliani’s fee request as evidence of a financial motive driving his alleged defamations.)
By then, the Trump Campaign’s legal strategy was a shambles. Many suits had already been dismissed. Its lawyers and law firms were quitting, fearful of either reputational damage or judicial sanctions for baseless filings. At Giuliani’s only actual court appearance, at a federal court in Williamsport, Pa., on Nov. 17, he gave a rambling performance in which he appeared unfamiliar with the basic controlling legal concepts. And notwithstanding the daily screeds he was delivering to the media, a federal judge had forced him to concede, humiliatingly, that the case he was arguing hadn’t even alleged fraud.
Wild new accusations surfaced daily. On the evening of Nov. 17 Powell offered Newsmax TV host Greg Kelly a bombshell.
“We’ve got evidence from the own mouth of the guy who founded the company,” Powell said, apparently referring to Dominion CEO Poulos. “The founder of the company admits he can change a million votes, no problem at all.”
Flabbergasted, Kelly asked for clarification: “The founder of Dominion admitted a long time ago? Recently to you? Tell us more, please.”
“Publicly,” she said. “I will tweet out the video later and I’ll tag you in it.”
She didn’t. (No such video ever surfaced. Dominion says Poulos never said any such thing.)
The meltdown press conference
To this point, Powell’s and Giuliani’s voting-fraud theories had been largely confined to Trump World media outlets. But on Nov. 19, at a press conference at RNC headquarters, they took their act mainstream.
This was the Giuiliani meltdown conference. Under the hot lights, black streaks of presumptive hair product rolled down Giuliani’s temples—a symbol of personal dissolution so slapstick that, in a movie, it would have been deemed heavy-handed. Then, in another flourish of inadvertent self-parody, Giuliani performed an extended impression of the Joe Pesci character from “My Cousin Vinny”—a comically incompetent lawyer from Brooklyn.
But while Giuliani’s pratfalls grabbed the early headlines, Powell’s off-the-rails conspiracy ravings stole the show for those who stayed to the end.
“What we are really dealing with here,” Powell began, “is the massive influence of communist money through Venezuela, Cuba and likely China in the interference with our elections here in the United States.”
She talked about Chávez, the backdoors, the algorithms, the corruption. The only reason the scheme finally came to light, she explained, was that Trump’s landslide had been “so overwhelming” that it “broke the algorithm.”
Afterward, Chris Krebs, the recently fired CISA director, captured the event indelibly in a tweet: “That press conference was the most dangerous 1hr 45 minutes of television in American history. And possibly the craziest.”
Powell alarms Republicans
Fissures began to appear across the Republican firmament, including at Fox. That evening, Giuliani was warmly welcomed for interviews by Sean Hannity and Lou Dobbs. But later that evening, Fox host Tucker Carlson had a different message for his viewers—one that grabbed headlines.
Carlson explained that his show had invited Powell on—if she’d bring evidence.
“What Powell was describing would amount to the single greatest crime in American history,” he continued. “We did not dismiss any of it. . . . We literally do UFO segments. . . . We’ve always respected [Powell’s] work and we simply wanted to see the details. . . . We would have given her the whole hour. We would have given her the entire week, actually. . . . But she never sent us any evidence, despite a lot of polite requests. When we kept pressing, she got angry and told us to stop contacting her. When we checked with others around the Trump campaign, people in positions of authority, they also told us Powell had never given them any evidence to prove anything she claimed at the press conference. . . . She never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another. Not one.”
Over the next two days, as Powell continued making the media rounds, she began to alarm other Republicans.
Her once-vague allegations of corruption became concrete and specific. In interviews on a Washington Examiner podcast and Newsmax TV she accused Georgia Gov. Brian Kemp and Secretary of State Brad Raffensperger—both Republicans—as having taken “kickbacks” to use Dominion software. “Mr. Kemp and the secretary of state are in on the Dominion scam,” she told Newsmax, demanding a criminal inquiry.
This was a bridge too far. “The conduct of the president’s legal team has been a national embarrassment,” former New Jersey Gov. Chris Christie said on ABC News “This Week” on Nov. 22.
Later that same day, Giuliani signed an official Trump Campaign statement disowning Powell. “Sidney Powell is practicing law on her own,” it said. “She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”
But Giuliani never stopped echoing Powell’s voting-machine fraud claims in media appearances.
Trump’s own views on Powell’s theories appear to have been cynical and pragmatic. Privately, he was dubious of their truth, according to later reporting by Axios.
“She's getting a little crazy, isn’t she?” he reportedly told advisers in late November. “She’s really gotta tone it down. No one believes this stuff. It’s just too much.”
But he still backed her on Twitter. When Powell returned to “Lou Dobbs Tonight” on Nov. 24 to tout the Kraken suits she would start filing the next day, Trump retweeted Dobbs’ tweet carrying the whole seven-minute segment.
Trump also retweeted the words of the lawyer who had, by then, emerged as Powell’s most illustrious co-counse
l on the Kraken suits, attorney L. Lin Wood.
“Enemies of America will deny its allegations,” Wood had predicted of the suit they were about to file. “Do NOT believe them. Believe Sidney & me. We love America & freedom. Our enemies do not.” (Twitter suspended Wood’s account in early January.)
Like Powell and Giuliani, Wood had an accomplished past. Oddly enough, he was known mainly as a defamation lawyer. He had represented Richard Jewell (falsely accused of the Centennial Olympic Park bombing in Atlanta in 1996) and the family of JonBenét Ramsey (the 6-year-old beauty queen murdered in her home in Boulder, Colo., also in 1996).
In recent years, though, very unusual things had been going on in Wood’s life. Less than three months earlier, all three of Wood’s former law partners sued him in a Georgia state court, making extraordinary allegations. They accused him of “violent, abusive, and erratic behavior,” including “assault” and “battery.” They quoted long passages of apparently taped phone calls in which Wood had repeatedly referred to himself as “Almighty Lin” and had hinted at a special relationship with God. “I represent Moses,” he told them. “I represent Ananias the believer. I’m like the power of King David.”
Wood had also tried to talk his former partners out of airing their grievances, they alleged, because “he feared it would interfere with his imminent . . . appointment as Chief Justice of the United States.” Wood’s belief wa
s based, they said, in part on a “prophecy” contained in a YouTube video and in part on Wood’s belief “that Chief Justice Roberts would be revealed to be part of Jeffrey Epstein’s sex trafficking ring and was being blackmailed by liberals to rule in their favor.”
Wood, who is now defending himself in that suit, did not respond to an inquiry seeking comment.
On Nov. 25 and Dec. 1, Powell and Wood filed the four Kraken suits in Atlanta, Detroit, Phoenix, and Milwaukee. Among the affidavits appended were several anonymous ones, including the one from the purported Venezuelan military man.
The press eventually determined the identity of two of the other anonymous affiants, finding marked discrepanci
es between how these individuals were portrayed and who they really were. A purported “military intelligence expert,” for instance—code-named “Spider” in some suits and “Spyder” in others—had never worked in military intelligence, the Washington Post reported. He was a Dallas IT consultant who had “wash[ed] out” of an entry-level training course on the subject, according to an Army spokeswoman.
On Dec. 1, Attorney General Barr weighed in. Just a few months earlier, Barr had risked his reputation by trying to dismiss charges against Powell’s client, Lt. Gen. Flynn. But now even he was trying to stop the craziness.
“To date, we have not seen fraud on a scale that could have effected a different outcome in the election,” he told the AP in an interview. As for the voting-machine-fraud claims, he said, “the DHS [Department of Homeland Security] and DOJ [Department of Justice] have looked into that and, so far, we haven’t seen anything to substantiate that.”
Trump and Giuliani were both reportedly angered by Barr’s statement. But in private conversations with Trump later that day, Barr was even more vociferous. The stolen-election claims were “bullsh**,” he told him, according to later reporting by Axios, and the lawyers pushing those claims were “clownish.” According to Law & Crime, Barr told Trump, “I’m a pretty informed legal observer and I can’t f***ing figure out what the theory is here.”
The same day Barr broke his silence, a top official in the Georgia secretary of state’s office begged the Kraken lawyers to stop.
“Someone’s going to get hurt, someone’s going to get shot, someone’s going to get killed,” said Gabriel Sterling, the office’s chief operating officer, in a public plea. “It’s not right.”
They did not stop. The next day, Powell and co-counsel Wood staged a televised Stop-the-Steal rally in Atlanta. Powell’s famous client, Flynn, was present. Wood pointed him out to the crowd, and promised, cryptically, that Flynn “will be our next George Washington.” In the same vein, he added, “It’s 1776”—a phrase he repeated five more times during the rally.
Wood then lashed out at Gov. Kemp, Secretary of State Raffensperger, and Gabriel Sterling by name.
“You’re not going to sell our votes to China,” Wood vowed. He later added, “You need to go to jail,” speaking of Kemp and Raffensperger. “Follow the money. These fat cats sitting around, spending your money, giving it to China, sticking it in their family's pockets, that’s not America.”
Powell then spoke. She sketched out a conspiracy that extended far beyond Venezuela. “We've already traced a lot of the money that did this back to China,” she asserted. “We have internet white-hat hackers, I think they call them, who saw backdoors open in the system and saw people in Iran and China and Hong Kong and Serbia and I don't know how many countries having influence in our election system.”
When she was done, Wood spoke again, this time with a religious message. “God Almighty created every
one of us,” he said, “and he created Donald Trump and he gave him a task to fulfill in his life and that was to be president of the United States in 2020 and he's going to be president of the United States for four more years. . . . God’s . . . going to fill you with the spirit of King David, the warrior. . . . The people are the rock and we’re going to slay Goliath, the communists, the liberals, the phonies. Joe Biden will never set foot in the Oval Office of this country. It will not happen on our watch. Never going to happen.”
Wood had one last disconcerting remark that day.
“How about Sidney Powell and Mike Flynn in 2024?” he said, apparently proposing a presidential ticket. The crowd roared its approval. (Two weeks earlier, someone had, in fact, anonymously registered the web domain name sidneypowell2024.com.)
Later that day, Wood and Flynn each tweeted out endorsements of a full-page ad in the Washington Times urging imposition of a “limited form of martial law” for the “purpose of having the military oversee a re-vote.”
The Kraken suits get shot down
By Dec. 10, all four Kraken suits had been dismissed. In Detroit, the Judge Linda Parker found that the dozens of
plaintiffs’ affidavits appended to the complaint offered “nothing but speculation and conjecture.” In Arizona, Judge Diane Humetewa wrote that the “300 pages of attachments” were “only impressive for their volume.” Powell’s “expert reports” reached “implausible conclusions,” she continued, “because they are derived from wholly unreliable sources. . . . The plaintiffs have not moved the needle for their fraud theory from conceivable to plausible.”
Powell was back on “Lou Dobbs Tonight” that night, unfazed. (She was appealing the dismissals.)
“We now have reams and reams of actual documents from Smartmatic and Dominion,” she told Dobbs. “We know that $400 million of money came into Smartmatic from China only a few weeks before the election. . . . We know that one of the Smartmatic people went to Tarrant County, Texas”—Ft. Worth—“and turned that county blue.”
Powell promised additional revelations. “It will be coming out more and more by the day,” she said, including “the connections to the Chinese and other countries that were attacking us in the massive cyber Pearl Harbor.”
Dobbs, too, was unfazed by the adverse court rulings. “[I]t’s outrageous,” he said. “How can we get to this if we have an Attorney General who has apparently lost both his nerve and his commitment to his oath of office and to the country?”
After the taping, Dobbs tweeted and posted to Facebook a link to the six-minute segment with the caption: “Cyber Pearl Harbor: Sidney Powell reveals groundbreaking new evidence indicating our Presidential election came under massive cyber-attack orchestrated with the help of Dominion, Smartmatic, and foreign adversaries. #MAGA #AmericaFirst #Dobbs.”
‘The craziest meeting of the Trump administration’
That may have been the high watermark, as far as media gullibility or complicity went. The same day as that broadcast, Smartmatic’s lawyers sent Fox News a 20-page retraction demand. Powell and Giuliani got separate 14- and 15-page letters from the company five days later. The day after that, Dominion sent Powell and Guiliani each a 15-page retraction demand.
Powell was on a mission, though, that transcended mundane obstacles like libel law—at least for the moment. On Dec. 18, she, Flynn, and conspiracy theorist Patrick Byrne—the former CEO of Overstock.com—managed to get a meeting with Trump in the Oval Office. Axios later called it “the craziest meeting of the Trump Administration.”
According to Axios—and generally corroborated by Byrne on his own blog—Powell and Flynn urged Trump to
declare “a national security emergency,” suspend normal laws, and mobilize “the U.S. government to seize Dominion voting machines around the country.” They also asked that Powell be given “top-secret clearance” and appointed “special counsel inside the government to investigate voter fraud.”
At the meeting, Powell did not hide her contempt for Giuliani. It wasn’t about Democrats, she told Trump. It was “about foreign interference,” she said. “Rudy hasn’t understood what this case is about until just now.”
Senior White House advisers—including White House counsel Pat Cipollone—were reportedly aghast. They had already pored over Powell’s court filings and had concluded that they “fell apart under basic scrutiny.”
Trump was intrigued, though. According to Axios, “Trump expressed skepticism at various points about Powell's theories, but he said, ‘At least she’s out there fighting.’”
Though the meeting lasted four hours, White House advisers prevailed, and Powell’s team came away empty-handed.
Fox brings in an elections expert
That same day, there were glimmers of change at Fox. Smartmatic’s retraction letter had evidently gotten someone’s attention. During that evening’s edition of Lou Dobbs Tonight, Dobbs nonchalantly tossed to a clip that Ne
w York Times media critic Ben Smith later called “one of the strangest three-minute segments I’ve ever seen on television.” In it, a disembodied and unidentified questioner asked elections expert Perez, of the OSET Institute, a series of questions that enabled Perez to debunk eight false claims about Smartmatic that Giuliani or Powell had leveled on various Fox shows. The identical segment was re-shown twice again that weekend—introduced once by Bartiromo on her show and, then, by Fox contributor Lisa Boothe, sitting in for Jeanine Pirro, on Pirro’s show.
(In its later motion to dismiss Smartmatic’s defamation suit, Fox said it simply aired these segments “as part of its commitment to continuing to fully and fairly air both sides of the controversy surrounding the election.” Fox also noted that when it received Smartmatic’s retraction demand on Dec. 10, it invited a Smartmatic representative to appear on Fox to address the issues, but Smartmatic declined.)
Trial by combat
The weird Eddie Perez episodes were a harbinger of where things were headed. That same day Dominion served OANN and Newsmax with retraction demands, too. A few days later, it sent letters to at least 21 individuals and companies—a mix of cease-and-desist letters, retraction demands, and preservation-of-documents demands. My Pillow guy Mike Lindell got his retraction demand from Dominion on Dec. 23.
“Retracting nothing,” Powell tweeted on Dec. 20. “We have #evidence. They are #fraud masters!”
Giuliani and Powell continued their attacks, though the number of forums hosting them seemed to thin. She was on Sean Hannity’s syndicated radio show on Dec. 23; on “The Rush Limbaugh Show” (with Todd Hermann) Dec. 29; and on WABC’s “The CATS Roundtable” (with WABC’s billionaire owner John Catsimitidas) on Jan. 3. Giuliani kept raging against Dominion on his own shows.
As the new year began, Powell’s co-counsel Wood was deteriorating. “If Pence is arrested, @SecPompeo will save the election,” he tweeted on New Year's Day. “Pence will be in jail awaiting trial for treason. He will face execution by firing squad. He is a coward and will sing like a bird & confess ALL.”
Then three days later, Wood issued one of his last tweets before Twitter suspended his account: “I believe Chief Justice John Roberts and a multitude of powerful individuals worldwide are being blackmailed in a horrendous scheme involving rape and murder of children captured on videotape. I have the key to file containing the videos.”
On Jan. 6, Congress was to meet in Joint Session to officially count the previously certified votes of each state’s electors in accordance with the Twelfth Amendment and the Electoral Count Act. It was the last formalistic hurdle before President-Elect Biden’s Inauguration 14 days later.
Giuliani spoke at Trump’s Save America rally that morning, about two hours before the counting was due to begin. There he tried to use his Dominion myths as a pretext for derailing this constitutional process. He said it would be “perfectly appropriate” for Vice President Pence to block the vote counting for 10 days so that his experts could be given a chance to inspect Dominion machines.
“Over the next 10 days,” he continued, “we get to see the machines that are crooked . . . and if we’re wrong, we will be made fools of, and if we’re right, a lot of them will go to jail. So let’s have trial by combat.”
Trump followed with his own fiery speech (which mentioned Dominion machines three times). At 12:53 p.m., before Trump had finished, a mob breached barriers and began encircling the Capitol Building. At 2:11 p.m. rioters breached the building. At 4:09 p.m., about two hours into the insurrection, Giuliani tweeted a Breitbart article covering his Save America speech about the need to inspect Dominion machines.
At 6:01 p.m., after Trump tweeted that the crowd should “go home in love & in peace,” the mob began to disperse. At 7 p.m., Giuliani left a recorded message on the voicemail of Sen. Mike Lee (R-Utah), mistakenly thinking he’d reached Sen. Tommy Tuberville (R-Ala.) The message suggested that the real reason he sought delay was not to inspect Dominion machines, but rather to buy time in which to persuade state legislatures to somehow retract their vote certifications. “We need you, our Republican friends, to try to just slow it down,” he said in his voicemail, “so we can get these legislatures to get more information to you.”
At 8 p.m., the Capitol Police declared the building to be secure. Nine minutes later—apparently anticipating that her Twitter account would soon be yanked—Powell tweeted that people should follow her on Parler.
“The vote @senatemajldr is certifying is based on the most egregious fraud in the history of this almost former Republic,” Powell continued, adding the hashtag “#AntifaCapitalAssault.”
Giuliani continued railing about Dominion into at least February, when WABC blindsided him by slapping a disclaimer on his radio show, disavowing the opinions being expressed there.
A non-party that has an enormous stake in these cases
Sometime in January, the State Bar of Georgia ordered Kraken co-counsel Lin Wood to submit to a psychiatric examination. He has thus far refused—an impasse that could lead to bar suspension.
Sidney Powell is currently contesting voluminous sanctions motions in the federal district court in Detroit where she filed one of her Kraken suits. In January, lawyers for the city of Detroit, the governor’s office, and the secretary of state filed motions seeking fines, reimbursement of attorneys fees, and referrals of Powell and all her Kraken co-counsel to their home-state bar authorities for possible disciplinary proceedings.
Giuliani is facing bipartisan demands for his bar suspension in letters signed by more than 3,000 attorneys, including seven past New York State Bar Association presidents.
But those proceedings, even if they ever do ever lead to sanctions—a big if—will provide no recompense for Smartmatic or Dominion. Relief for the companies will come—or not come—from the defamation suits.
In addition, there’s a non-party to these cases that has an enormous stake in their outcome: our democracy. As noted, these cases may be the biggest libel cases in history—but not just in terms of potential verdict size.
These cases will help determine the future of disinformation in our country and, with it, the future of our Republic.
Correction: An earlier version of this article reported that in 2012 Dominion sued Smartmatic. In fact, Smartmatic sued Dominion, which in turn countersued. The article now reflects this change.
Roger Parloff is a regular contributor to Yahoo Finance and has also been published in Yahoo News, The New York Times, ProPublica, New York Magazine, and NewYorker.com, among others. He was formerly an editor-at-large at Fortune Magazine.
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