Judge grills lawyer for Fox News, Powell, Giuliani about election claims in Smartmatic suit

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Rudolph Giuliani and Sidney Powell, attorneys for President Donald Trump, held a news conference with the Republican National Committee on lawsuits regarding the outcome of the 2020 election on Thursday, Nov. 19, 2020.

Tom Williams | CQ-Roll Call, Inc. | Getty Images

A skeptical judge on Tuesday asked lawyers for Fox News, Rudy Giuliani and Sidney Powell about a series of election fraud claims amid a $ 2.7 billion lawsuit filed against them Smartmatic voting technology.

The company, which only provided services to Los Angeles County in the 2020 election, is accusing defendants of spreading the false story that it deceived the race against former President Donald Trump.

In virtual oral arguments about Fox’s bid to drop the case, Manhattan Supreme Court Judge David Cohen pressed counsel for the conservative news outlet about specific claims made on the air of current and former hosts Maria Bartiromo, Jeanine Pirro and Lou Dobbs.

“How can that not be defamatory?” Cohen asked Fox attorney Paul Clement after referring a claim from Dobbs in mid-November that Smartmatic was banned in Texas. The company is not banned in the state.

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Clement responded that that particular claim was made in the context of a conversation with Giuliani, who at the time was a lawyer for Trump, who allegedly had bad ties between Smartmatic and another company, Dominion Voting Systems.

Smartmatic and Dominion are independent companies with no connections, the companies said. The Dominion has also filed defamation lawsuits against Fox, Giuliani and Powell, among others that spread vote lifts and other conspiracy theories following President Joe Biden’s win against Trump.

Clement argued at the hearing that claims made against Fox, its hosts or Trump’s legal team, do not rise to legal standards of defamation and are protected by the First Amendment. He also noted that guests like Powell and Giuliani are well -known figures discussing the biggest story of the day.

But lawyers for Smartmatic pushed, saying the defendants expressed truth, not opinion, about the tech vote company, and they had no “chasing immunity” to spread destructive content.

They also had an issue with Clement’s argument that Dobbs ’show, which was canceled in February, was primarily considered opinion programming and the claims to it were“ more likely to be construed as opinions ”for that reason.

Smartmatic’s lawyer Erik Connolly said in response that Dobbs “did everything to reinforce the notion that he and his guests are providing concrete facts to the audience.”

Howard Kleinhendler, an attorney for Powell, argued at the hearing that Smartmatic lacked conviction, or reason to sue him, because Texas -based Powell did not make any of his disputed claims from New York.

Cohen asked Kleinhendler to explain the basis for the murder in Powell’s claims involving Smartmatic, including its flipping of “millions” of votes and its company manual explains how to remove the votes. Kleinhendler could not answer some of the claims presented to him by the judge.

Powell was cut off from Trump’s legal team after a press conference in which he claimed the Dominion was part of a conspiracy to drive Communist elections involving Venezuela and Cuba. Powell hyped his own efforts as “Kraken,” whose release would end at election levels.

At Tuesday’s hearing, Connolly told Cohen that Powell’s rigged election, and his posting as an “avenging angel” to recover from Biden’s victory, were part of a fundraising effort that raise millions of dollars.

“It’s an advertisement for him,” Connolly said of Powell’s five appearances on Fox. He accused that he adapted himself to those displays as a “champion” of the lie that Smartmatic mixed up in the election, before directing viewers to his website to make donations.

“Defamation and fundraising go hand in hand,” Connolly said.

Joseph Sibley, an attorney for Giuliani, argued at the hearing that the former New York City mayor’s claims about Smartmatic were worth “product damage,” not defamation.

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