Election Reform

Analysis of Dominion's Letter To Senator Colbeck
by Adam de Angeli      Posted April 6, 2021

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It is fair to say the active Trump supporters were shaken by the letter Dominion sent to former Michigan Senator Pat Colbeck, which was reported nationwide yesterday, April 5.

As was intended. This was no ordinary "litigation hold" letter. This was a public political statement, delivered to an all-to-eager mass media, to achieve a political purpose.

For those who may not know, a litigation hold letter usually consists of a demand that the recipient maintain all records relating to a lawsuit that the letter implies is coming. Every lawyer reading the Dominion letter will interpret it to mean: "He's getting sued."

But this letter said a lot more. And much of what it said was highly suspicious.

The Law

To put this in context, let's start with Sidney Powell's answer to Dominion's lawsuit against her, and the media's false and misleading reporting about it.

As Stephen Presser meticulously showed in his spot-on analysis, "The ‘Pathetic’ Genesis of a Fake News Story," the media took advantage of the fact the general public doesn't know about litigation privilege, to spin a misinterpretation of Sidney Powell's legal defense.

Her lawyers [were] simply making a highly technical legal argument that at the time Powell made the statements in question they could only be matters of opinion, and the statement of an opinion is not a statement of fact and therefore could not be grounds for a defamation action.
USA Today's neocon columnist Mona Charen titled her take: "Sidney Powell admits it was all a lie."

Her writing was the lie, not Powell's.

Yet it was the typical take of the major media on the story: An either intentionally dishonest, or irresponsibly ignorant misinterpretion of Sidney Powell's entirely sensible response to Dominion's $1.3 billion lawsuit against her.

There are two things to notice here:

First: That the major media intentionally or irresponsibly spreads gigantic lies across the American public.

Second: That what Sidney Powell asserts in her defense is "litigation privilege" – and yet, with astounding hypocrisy, "litigation privilege" is exactly what Dominion employs in their "litigation hold" letter to Senator Colbeck.

"Litigation privilege" is a protection for lawyers that allows them to say almost anything they want in legal proceedings, even what could be considered libel if made in other settings, because without that protection, lawyers could not effectively represent their clients. There is a widely recognized right to "zealous" advocacy for clients, and that extends to court proceedings. Courts don't want lawyers to be afraid to advance their clients' evidence and arguments. For better or worse, that is the idea.

And that is what Dominion exploited in their litigation hold letter to Senator Colbeck.

Dominion didn't just demand Colbeck retain records. Knowing the letter would be circulated nationwide by a supportive left-wing media establishment, Dominion publicly hurled every allegation at Colbeck they could conceive, using the letter to create a media spin-cycle where their bald accusations could be reported as fact, which could then cited in future statements as what "was reported."

Notably, Dominion claimed five times, without evidence, that Colbeck had raised more than a million dollars for his company by "sowing discord in our democracy."

And how they constructed this allegation, made five times, is remarkable.

In the first three out of five times Dominion claimed Senator Colbeck had raised more than a million dollars, they said he "solicited" the money:

"You are knowingly sowing discord in our democracy, all the while soliciting exorbitant amounts of money totaling over $1 million so far from your audiences paid directly to your personal business."

"[You are engaging in] spreading false and baseless claims about voter and ballot fraud in order to sow discord in the 2020 election and, in your case, to solicit over $1 million in "donations" from your audiences."

"You have been lying to your audiences throughout your disinformation campaign across Michigan in order to solicit over $1 million in "donations" to your personal business."
Read these carefully. In none of them do they allege that Colbeck actually raised $1 million – only that he "solicited" it.

But then, the fourth time they bring it up (a standard lawyer's play to repeat what they want to imprint), Dominion says: "what we do know is that you are raising exorbitant amounts of money reportedly more than $1 million to date."

Here, for the first time, it is claimed the $1 million was "reportedly" raised.

In a letter with 37 footnotes, not one identifies where this figure was reported, and this author was unable to find any corroboration for the alleged sum's reportedness.

On the final page of the letter, it makes the claim a fifth time, and in doing so, leaves no doubt that the authors allege Senator Colbeck received $1 million in donations:

"We have reason to believe you are not disclosing to those you have duped into giving you money that once received, you can do anything you want with their over $1 million in "donations."

Dominion's unsupported allegation serves two purposes: First, to alienate Senator Colbeck from donors, with the unsupported (but protected by litigation privilege) claim that he raised $1 million in donations, which they suggest was for his personal enrichment, and second, to defame him to the general public.

It is the rankest of hypocrisies.

But it is important to keep in mind: Because the letter was also a political statement as well as a litigation hold letter, making the political statement may have been the primary purpose.

Beyond the obvious political statement was a subtext. Dominion has sued national figures like mayor Rudolph Giuliani and FOX News, but this would be the first lawsuit against a state-level figure.

The subtext is: "We're coming after as many as we can."

The letter was a political play, through and through.

It even has the audacity to speculate that Colbeck may run for governor of Michigan in 2022, projecting Dominion's own intention to interfere in politics.

But that also means we must re-examine the assumption that it foretells a lawsuit against Senator Colbeck.

To begin with, Dominion's case would have obvious problems.

The first is that as a public figure, Dominion would have to show what is called "actual malice" on Colbeck's part: That Colbeck made statements "with knowledge that they were false or with reckless disregard of whether they were false or not."

This is not an easy standard to prove. The obvious problem is that Colbeck would have no reason to have malice for Dominion unless he genuinely believed his statements. There is no evidence that he does not.

The second issue is Dominion will not be able to link any actual damages to Colbeck's statements. Not only because thousands of other people have made similar statements, including Dominion's other lawsuit targets -- and not only because everything Dominion attributes to Colbeck has been made elsewhere by others -- but because Dominion, by intentionally placing their letter in national media, did more to spread Colbeck's statements than Colbeck himself.

Dominion could claim defamation per se, but that doesn't explain what they expect to gain from filing suit. This type of litigation tends to be very expensive for both sides, and the only side that benefits are lawyers.

Thus, it is possible, if not likely, that the letter was solely intended as a media hit, and not a signal that actual litigation is pending.

If a suit is filed, however, it's unlikely that it will lead to some great reckoning about the truth of the matter regarding Dominion's voting machines.

Colbeck's legal strategy would be the same as Powell's, which is the same as any smart defendant's in a defamation claim: seek a pre-trial dismissal on matters of law, e.g. the question of actual malice.

It's the only way to end a lawsuit without paying exorbitant legal fees fighting at trial -- that or settling out of court.

Perhaps Mike Lindell has the financial resources to argue the facts in court, but it's unlikely others do.

The Facts

All of this legal analysis about Dominion's political chess game is silent on the issue of whether the allegations about Dominion are true or false, so let's address that briefly.

Dominion wouldn't be in this mess if the election law in Michigan and elsewhere gave the public strong, clear reasons to trust the tabulating machines were accurately reporting the results on the paper ballots.

This is a policy failure. It is a failure that:

-Machines are at any point permitted to connect to the Internet.
-The recount process is highly limited.
-The recount mechanism can be thwarted by election worker "error."
-The document preservation laws fail to give the process enough time to determine facts.
-Other problems with election law contribute to the public's lack of confidence in the process as a whole.

The policy failures are the root of this issue, and correcting the policy is the only effective long-term solution for problems like these.

At Rescue Michigan, we are committed to and focused on correcting the underlying policy failures.

That is the most important thing we can do to restore integrity in our elections.

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