A federal judge in Denver pressed lawyers Friday morning about whether they were relying on political talking points more than facts when seeking to question the outcome in the November presidential election.
U.S. District Court Magistrate Judge N. Reid Neureiter pressed Denver lawyers Gary D. Fielder and Ernest J. Walker, who filed a class-action case against Dominion Voting Systems, Facebook and elected officials in four states in December. The same judge dismissed the lawsuit in April.
Friday's hearing was about whether the plaintiffs' lawyers should face sanctions.
Neureiter pressed Fielder and Walker about whether they investigated if Denver-based Dominion Voting System was designed to throw the election with the help of foreign entities, including China.
The class-action lawsuit in Denver is among a spate of overlapping and counter litigation that has resulted from the presidential election, as the president has falsely claimed he was cheated but has not provided proof that's gotten traction in any court so far.
The first hour of the two-and-a-half-hour hearing was spent on the amount of investigating the plaintiffs' lawyers did and how much was based on second-hand knowledge and in service of conspiracy theories authored by former President Donald Trump and conservative media networks.
"Did you analyze any of the information, pick up the phone and call them, ask difficult questions?" the judge asked Fielder, who said he filed the lawsuit with eight named plaintiffs who joined up after he proposed it, based on his own legal experience and interpretation of the facts he drew from other affidavits, reports and other (though unsuccessful) lawsuits.
Fielder pointed to his 31-year resume as a lawyer, including his tenure as an assistant district attorney in Adams County and 18 months in private practice.
"I've developed a keen sense of reason and connecting the dots," he told the judge.
Later in the hearing, Fielder sought to redirect the discussion to the big picture.
"We're standing up for the rights of the people, the voters," he told Neureiter. "I'm sorry it offends these defendants. We're certain they're going to defend their clients, but we haven't made any misrepresentations, that it's all a lie, that it's bad for democracy.
"It's helpful for democracy. This will get it right in the future."
The suit was on behalf of roughly 160 million voters who were deprived of a fair election, Fielder argued. The lawsuit didn't seek to overturn the election but to collect $1,000 for each voter, or about $160 billion.
Neureiter noted unvetted affidavits, allegations in the media and outside reports cited in the lawsuit.
"What did you do to verify that this guy's in the charlatan?" the judge asked, pointing to one item. "Did you do any research, did you confirm with any other experts: 'Hey, is this guy just making this up or is this true,' or did you just take it at face value and include it based on that?"
Stan Garnett, the former Boulder County District Attorney who is representing Dominion, said the original lawsuit was based on "nonsense from the internet," and that the lawyers didn't research the facts because their alleged facts don't hold up to any scrutiny, yet damage a good Colorado company with 250 employees and a stellar reputation.
"All these cases wind up in the same situation, in dismissal," he said. "It's very troubling, because it's simply not true. Dominion did a terrific job in this election, and it's done a terrific job securing the process for a long period of time, and they're an excellent company."
Other defense lawyers argued to the judge that the case is fatally flawed because there hasn't been any individual discovery by the plaintiffs to vet the merits of their case, which would set a precedent to allow any dissatisfied voter anywhere to sue on generalized grievance.
"You can't just dump on the court a vast amount of unrelated allegations — various procedures and possibilities that might have happened — and dump that in a courtroom and expect the court to sort it out and come up with a comprehensive resolution of what some particular person on the Internet is telling the truth."
At another juncture, when Fielder sought to point to affidavits and the testimony found elsewhere about the election.
"But there are crazy people out there," Neureiter replied. "I mean, somebody could be put under oath (and testify) the earth is flat. That doesn't mean that you, as a lawyer say, 'Well, I'm going to file a lawsuit with suggesting the earth is flat because somebody, somewhere else wrote about it under oath.'"
Neureiter asked about a website put up by the lawyers asking for donations to support the lawsuit.
Fielder said about 2,100 people had donated about $95,000. He noted others had collected millions of dollars in donations in connection with the lawsuit. The website stated, “Every dollar helps us to hire the experts we need to win in Federal Court as well as in the court of public opinion.”
Neureiter asked about the lawsuits Trump has lost on the same facts, and whether the Denver lawsuit is in service to Trump's claims the election was stolen.
"Did it ever occur to you that you might be being used wittingly or unwittingly as a propaganda tool for the ex-president to file this lawsuit and repeat his statements?" Neureiter said.
Fielder noted twice he was not a Trump supporter, and Colorado voting records show he is unaffiliated.
"That possibility, I'm just repeating stuff that the president is lying about, of course it occurred to me. I tried to analyze it," he said.
Among those who provided fodder for the suit: MyPillow CEO Mike Lindell, who produced a documentary alleging the election was stolen and is facing a $1.3 billion lawsuit, similar to the ones filed against conservative news outlets and Trump lawyers Rudy Guiliani and Sidney Powell.
The filing also includes a tweet from Trump alleging he was cheated out of millions of votes.
Neuriter repeatedly challenged Fielder on due diligence to the alleged facts and jurisdiction to sue state officials from other states in a different state. He asked the plaintiffs' attorneys to point to one time they had ever succeeded. They did not.
The Trump campaign filed dozens of suits seeking to overturn the results in swing states, but none were successful, often with the courts harshly criticizing the lack of evidence behind the claims.
The judge also noted that Trump Attorney General William Barr said as early as Dec. 1 that the FBI had investigated and found no evidence of fraud on a scale that would have affected Biden’s victory.
Neureiter also asked, a pre-hearing note to lawyers, why the Trump campaign’s lawyers have not been willing to allege election fraud in court in other cases, with Giuliani saying in a court hearing "[T]his is not a fraud case.’”
He also cited Giuliani having his law license suspended in New York over specious claims about the election, noting the bar cited “uncontroverted evidence” that Giuliani “communicated demonstrably false and misleading statements to courts, lawmakers and the public at large ..."
“It was all b******t,” Barr reportedly said in an interview for a book.
Neureiter also noted the findings of a recent report from the Republican-led Michigan Senate Oversight Committee, which stated, “Our clear finding is that citizens should be confident the results represent the true results of the ballots cast by the people of Michigan. The Committee strongly recommends citizens use a critical eye and ear toward those who have pushed demonstrably false theories for their own personal gain.”
Fielder told the judge he disagreed with those assessments.
This story was corrected to note that Neureiter dismissed the original class-action lawsuit in June.