DENVER (CN) — Former president Donald Trump’s campaign team asked the Colorado Court of Appeals on Tuesday to overturn a lower court’s order and dismiss a defamation lawsuit filed by a former employee of Dominion Voting who found himself publicly — and wrongly — accused of rigging the 2020 election.
“The plaintiff in this case has failed to meet the burden of actual malice by clear and convincing evidence,” argued Andrew Nickel, on behalf of Donald J. Trump for President Inc. “The district court erred in applying a negligence standard.”
Following the 2020 election, host of the Conservative Daily podcast, Joseph Oltmann, claimed he heard a man identified as “Eric from Dominion” say on a call that he was going to make sure Trump lost. Internet research led Oltmann to conclude the speaker was Eric Coomer, a director of product strategy and security at Dominion Voting Systems in Denver.
The spark of the claim caught and spread like wildfire after the 2020 election, when it was picked up by the OAN network, then repeated by the Trump campaign, along with attorneys Rudy Giuliani and Sidney Powell.
As the lie spread, Oltmann's statements against Coomer became increasingly violent, encouraging listeners to post "where is Eric Coomer" on social media, to harass him in the mountain town where he went into hiding and to prepare for a civil war.
In his 2020 lawsuit, Coomer identified more than a dozen individuals and companies that collectively made him the villain in the narrative of unbased claims of election fraud. Coomer has since filed additional lawsuits against Denver-based conservative radio host Randy Corporon and My Pillow CEO Mike Lindell.
Trump's campaign organization countered with a special motion to dismiss, citing the state’s anti-SLAPP statute, a law designed to kill frivolous lawsuits that threaten the right to criticize the government. A Denver judge held a two-day bench trial in October 2021, then denied each party’s motions in May 2022. Trump, Oltmann, Giuliani, Powell, and the others appealed.
“There’s no evidence that anyone knew what Oltmann said was false,” argued Nickel, who practices with the Denver firm Jackson Kelly. “All of that came out after.”
Since Coomer filed his lawsuit, his former employer has filed several similar defamation lawsuits on behalf of the company. Dominion and Fox News settled for $787 million last year. Giuliani declared bankruptcy last year facing legal fees from other suits including one filed by voting machine company Smartmatic.
“This is not the type of meritless or frivolous case the anti-SLAPP statute was meant to weed out,” countered attorney Zachary Bowman on behalf of Coomer.
Colorado Court of Appeals Judge Karl Schock, appointed by Democratic Governor Jared Polis, pressed Bowman on whether Oltmann could have actually heard what he said he heard.
“You keep wanting to go to the bigger claim — that Coomer rigged the election — which is implausible, but I want to focus on the second statement, that Oltmann heard a statement made by someone identified as ‘Eric from Dominion,’” Schock said. “Isn’t that plausible?”
Bowman cast doubt on Oltmann’s credibility since Oltmann didn’t record the call and later backed up his claim with fabricated evidence.
“This was a preconceived narrative looking for a target,” argued Bowman, who practices with the firm Cain & Skarnulis, in Salida, Colorado.
Court of Appeals Judge Anthony Navarro, appointed by Democratic Governor John Hickenlooper, considered whether it was important that Oltmann believed his own story.
“Doesn’t it support defendants’ claim that they believed the statements, the fact that they didn’t retract?” Navarro asked.
Bowman rejected the argument and said few cases can produce smoking guns.
“Every speaker is going to claim good faith or that they believed what they said,” Bowman said. “This altered Dr. Coomer’s life. The fact that fact-finding was available and ignored goes to the heart of malice.”
On rebuttal, attorney Mark Sares argued on behalf of Oltmann.
"This case is about free speech being encouraged by our legislature," said Sares, of the law firm Harris Karstaedt.
Court of Appeals Judge Eric Kuhn, appointed by Democratic Governor Jared Polis, rounded out the panel. The court did not indicate when or how it will decide the case.
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