A $2.7 Billion Defamation Lawsuit Says Fox Hosts Recklessly Implicated Smartmatic in a Conspiracy To Steal the Election

The day after Smartmatic filed a $2.7 billion defamation suit against Fox News last week, the Los Angeles Times reported that Fox Business had canceled its long-running show hosted by Lou Dobbs, a conspicuous promoter of the claim that the voting technology company helped President Joe Biden steal the election. The Times says the cancellation of Lou Dobbs Tonight was in the works before the lawsuit was filed. The decision nevertheless puts some more distance between Fox and the wild conspiracy theory that motivated last month's riot at the U.S. Capitol.

Fox News reporters were skeptical of former President Donald Trump's election-fraud claims from the beginning. But several Fox hosts, including Dobbs, Maria Bartiromo, and Jeanine Pirro—all of whom are named as defendants in Smartmatic's lawsuit—credulously amplified his complaints, repeatedly lending credibility to conspiracy mongers Sidney Powell and Rudy Giuliani (who are also named as defendants), whom they presented as serious lawyers with plausible claims.

Until late November, Powell was working with the Trump campaign; Giuliani continues to represent Trump. Since they were apparently speaking on the president's behalf, their claims, however outlandish, were clearly newsworthy. But Smartmatic's 285-page complaint argues that Dobbs, Bartiromo, and Pirro went beyond covering these allegations by endorsing them while ignoring countervailing evidence.

Since Smartmatic's participation in the 2020 election was limited to a contract with Los Angeles County, the idea that it had helped deliver a phony victory was wildly implausible on its face. But Powell and Giuliani spun a tale that linked Smartmatic to the deceased Venezuelan strongman Hugo Chavez, saying the company had helped him stay in power by supplying fraud-facilitating voting software. They conflated Smartmatic with Dominion Voting Systems, which had a much bigger role in last year's elections. Powell and Giuliani falsely claimed that the two companies were essentially the same and that Dominion helped Democrats cheat with a version of the software that Chavez had commissioned, which supposedly switched hundreds of thousands (or possibly millions) of Trump votes to Biden votes in battleground states.

It was clear early on that the story peddled by Powell and Giuliani had no basis in reality. Nine days after the election, the Cybersecurity and Infrastructure Security Agency (CISA), a division of the Department of Homeland Security, joined a statement saying "there is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised."

Around the same time, 59 leading computer scientists and election security experts published an open letter that offered a similar judgment. "To our collective knowledge, no credible evidence has been put forth that supports a conclusion that the 2020 election outcome in any state has been altered through technical compromise," they said, calling such claims "unsubstantiated" or "technically incoherent."

State audits and recounts confirmed that Dominion machines, which supposedly were running Smartmatic's allegedly tricky software, had accurately tabulated the results. By late November, Attorney General William Barr was saying that "we have not seen fraud on a scale that could have effected a different outcome in the election." Barr specifically rejected the allegations of machine-based fraud, saying "we haven't seen anything to substantiate that." Privately, Barr reportedly told Trump such claims were "bullshit."

What were Dobbs et al. doing in the meantime? On November 12, the same day CISA said there was "no evidence" that voting machines had been compromised, Dobbs invited Giuliani to expound on his allegations. Dobbs not only was completely unskeptical; he reinforced Giuliani's story by falsely claiming that Smartmatic and Dominion had tried to avoid detection by storing voting data on servers in other countries. "As you well know now," he said, "they have no ability to audit meaningfully the votes that are cast because the servers are somewhere else and are considered proprietary and they won't touch them. It won't permit them being touched."

At the end of the interview, Dobbs endorsed Giuliani's claims: "Rudy, we're glad you're on the case and pursuing what is the truth and straightening out what is a very complicated and difficult story. And by the way, it's not only difficult; it has the feeling of a cover-up in certain places, you know, putting the servers in foreign countries, private companies. We don't have transparency with those servers….This is an election nightmare, as well as a battle."

Two days later, Pirro interviewed Powell on her Fox News show Justice With Judge Jeanine. After Powell described a "huge criminal conspiracy" involving Smartmatic, Venezuela, and maybe Cuba, Pirro expressed the hope that the alleged scheme would be investigated by the Justice Department.

On November 15—two weeks before the head of the Justice Department confirmed that it had not "seen anything to substantiate that"—Giuliani appeared on Sunday Morning Futures With Maria Bartiromo. Like Pirro, Bartiromo not only treated the conspiracy theory as plausible but reinforced it:

I want to show this graphic of the swing states…that were using Dominion and this, this software, this Smartmatic software. I mean, you just said it all. This is a Smartmatic, a Delaware entity registered in Boca Raton, Florida, activities in Caracas, Venezuela. The voting machines were used, Dominion voting machines were used in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. And I have a graphic showing the states where they stopped counting, which I thought was also strange to stop counting in the middle of election night. One source says that the key point to understand is that the Smartmatic system has a backdoor that…allows the votes to be mirrored and monitored, allowing an intervening party a real-time understanding of how many votes will be needed to gain an electoral advantage.

Bartiromo also interviewed Powell that day and was similarly helpful in lending credence to her story. "I have spoken with a few whistleblowers myself this weekend," Bartiromo said. "And one source, who is an IT specialist, told me that he knew the software and specifically advised people in Texas, officials in Texas, not to use it. And yet he was overruled. He said that there was an unusual patch that was put into the software while it was live, and it's highly unusual to put a patch in there." Despite that "unusual patch," Trump won Texas by more than 630,000 votes.

After Powell described "massive election fraud" involving "algorithms" that "modif[ied] the votes in this case to make sure Biden won," Bartiromo thanked her for bringing the nefarious plot to light. "Wow," she said, "this is explosive, and we will certainly continue to follow it. Sidney, thank you so much for your work."

When Dobbs interviewed Powell the next day, he made it clear that he accepted her allegations. "This is a nation that has just been wronged mightily," he said. "Only an
idiot would try to claim that there were no irregularities, that there were no anomalies, that there were insufficient evidence and documents suggesting fraud and inexplicable mathematical ratios that tell us very quickly, there's something terrible afoot here….This is the worst in our country's history. There is no election in our presidential history, our nation's history in which there were so many anomalies, so many irregularities, and so much clear evidence of fraud."

While interviewing Giuliani during the November 17 edition of Mornings With Maria, Bartiromo casually referred to "the software made by Smartmatic that was changing…votes from Trump to Biden." The next day, Giuliani was back on Lou Dobbs Tonight. Dobbs cited an affidavit from "an unidentified whistleblower" that supposedly blew the lid off the scheme described by Giuliani. Dobbs averred that "the circumstances and events are eerily reminiscent of what happened with Smartmatic software—electronically changing votes in the 2013 presidential election in Venezuela."

Interviewing Powell on November 19, Dobbs described her as a "great American" and "one of the country's leading appellate attorneys." Like Bartiromo, he expressed gratitude for her detective work: "Our election is run by companies, the ownership of which we don't know. Sidney Powell is among those trying to change all of that." Two days later, Pirro claimed "we know" that "Democrat cities were targeted by crooked Democrats who stole votes," thanks to affidavits collected by Giuliani. She said those affidavits "made clear" the truth of his allegations.

On December 10, Dobbs promised that "we're going to examine in some detail the reasons for what is apparently a broadly coordinated effort to actually bring down this President by ending his second term before it could begin." He said "we're talking about…a very large foreign intrusion and interference in…the election of 2020." Although Dobbs already had concluded that the election was stolen through massive fraud, saying "we have tremendous evidence" to support that belief, he invited Powell to "put forward your evidence that supports your claim that this was a cyber-Pearl Harbor."

Powell welcomed the opportunity but never took Dobbs up on his offer. "Mr. Dobbs never returned to the airways to display the 'tremendous evidence' showing Smartmatic had participated in a massive fraud," the lawsuit says. "None of the Defendants had ever seen such evidence. It does not exist. Defendants' story was fiction from start to finish."

By contrast, Fox News host Tucker Carlson thought the lack of evidence to support Powell's extravagant claims was striking and worth noting. On November 19, as his colleagues were continuing to promote those claims, Carlson said he had repeatedly asked Powell to back up her allegations, but "she never sent…any evidence, despite a lot of requests…not a page." After Carlson's staff pressed her for evidence, "she got angry with us and told us to stop contacting her…so we checked with others around the Trump campaign, people in positions of authority; they told us Powell has never given them any evidence either." Carlson concluded that Powell "never demonstrated that a single actual vote moved illegitimately by software from one candidate to another—not one."

During this time, Smartmatic notes, Fox News reporters also repeatedly emphasized that Powell and Giuliani's claims were unsubstantiated. After the two of them laid out their conspiracy theory at a bizarre November 19 press conference, for instance, Fox White House correspondent Kristin Fisher called it "colorful" but noted it was "light on facts," adding that "much of what [Giuliani] said was simply not true or has already been thrown out in court."

All together, Smartmatic says, Fox News aired 13 shows "stating and implying that Smartmatic had stolen the 2020 U.S. election," and "it repeated the story in articles and social media postings." After Smartmatic threatened to sue Fox on December 14, Fox News and Fox Business aired a corrective, prerecorded interview with election security expert Eddie Perez during Lou Dobbs Tonight, Justice With Judge Jeanine, and Mornings With Maria. "I have not seen any evidence that Smartmatic software was used to delete, change, alter anything related to vote tabulation," Perez said.

Perez noted that Smartmatic software was used only in Los Angeles County during the 2020 election and that the company is independent from Dominion, whose machines were used to process votes in 28 states. He rebutted the idea that U.S. votes had been tabulated in foreign countries and the charge that Smartmatic had been banned in the United States because officials concluded it was untrustworthy.

In Smartmatic's view, that was too little, too late. It says the allegations belatedly debunked by the Perez interview had already prompted death threats against Smartmatic employees, making them "fear for their safety" and prompting the company to spend money on "increased physical and cyber security." The complaint adds that "Defendants' disinformation campaign has jeopardized Smartmatic's multibillion-dollar pipeline of business" by falsely depicting the company as a participant in an unprecedented criminal conspiracy to deny Trump a second term.

Smartmatic estimates that it "will suffer more than $767.4 million in lost profits over the next five years" as a result of the damage to its reputation. It also estimates "$75.9 million in increased expenses and lost productivity due to the defamation and disparagement." It adds that "Smartmatic's enterprise value is a fraction of what it was as a result of Defendants' disinformation campaign," saying that loss amounts to "at least $2.7 billion." It is seeking "no less than $2.7 billion" in damages. Powell and Giuliani also have been sued by Dominion, which is seeking $1.3 billion in compensatory and punitive damages.

"Fox News Media is committed to providing the full context of every story with in-depth reporting and clear opinion," a spokeswoman said last week. "We are proud of our 2020 election coverage and will vigorously defend this meritless lawsuit in court."

The corrective Perez interview suggests that even Fox thought it failed to provide "the full context" in this case. And while the opinions offered by Dobbs, Bartiromo, and Pirro were indeed "clear," they included factual assertions that were blatantly false.

"Each of the Defendants knew that the statements and implications that they made
about Smartmatic were false and/or they acted with reckless disregard for whether their statements and implications were true," the lawsuit says. "Defendants did not care about making truthful statements about Smartmatic. Defendants were motivated to tell a story about how Smartmatic fixed, rigged, and stole the 2020 U.S. election for Joe Biden and Kamala Harris."

Smartmatic makes a strong case that the Fox hosts did not merely conduct softball interviews with Powell and Giuliani, which would have been bad enough. They repeatedly embraced the essence of the two lawyers' claims, telling their audience that the election had indeed been stolen through a elaborate scheme involving Smartmatic. Even if Dobbs, Bartiromo, and Pirro sincerely believed that, they came to that belief without any credible evidence to support it, as their own colleagues on other shows repeatedly pointed out.

"The Earth is round," Smartmatic's complaint says. "Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election for President and Vice President of the United States. The election was not stolen, rigged, or fixed. These are facts. They are demonstrable and irrefutable."