Can Suing People for Lying Save Democracy?

On December 3, 2src2src, Jen Jordan, then a state senator in Georgia, received a text message. “Get over to the capitol,” it read. “Rudy Giuliani is there and it’s bad.” When she arrived, she found the halls of the state capitol building, in downtown Atlanta, packed with Republican legislators, Donald Trump supporters, and Trump attorneys

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On December 3, 2src2src, Jen Jordan, then a state senator in Georgia, received a text message. “Get over to the capitol,” it read. “Rudy Giuliani is there and it’s bad.” When she arrived, she found the halls of the state capitol building, in downtown Atlanta, packed with Republican legislators, Donald Trump supporters, and Trump attorneys, including Jenna Ellis and Giuliani. “They were taking selfies like it was a party,” Jordan, a Democrat, recalled recently. The crowd soon moved to a fourth-floor hearing room. Taking a seat, Jordan saw correspondents for far-right media outlets including One America News Network, the Epoch Times, and Newsmax. “The alarm bells really went off when Trump tweeted for people to tune in live to OAN,” Jordan said.

What followed at the state capitol astounded Jordan. “Giuliani took control of what felt like a mini-trial,” she recalled. He claimed that the Presidential election had been stolen from Trump, in part through election fraud in Georgia. He referred to “smoking gun” evidence of unmonitored vote counting, and of machines switching votes to Joe Biden—claims that Jordan, who as an an attorney had helped oversee the election locally, knew were bogus. Then a lawyer on Giuliani’s team played surveillance video from Fulton County’s main ballot-processing center, which showed election workers moving ballot containers around a brightly lit room. “I saw four suitcases come out from underneath the table,” the lawyer told those assembled. “What are these ballots doing there, separate from the other ballots? And why are they only counting them when the place is cleared out?” She said that the number of ballots in the supposed suitcases “could easily be and probably is certainly beyond the margin of victory in this race.” One of the two alleged perpetrators, she added, “had the name Ruby across her shirt.”

This was Ruby Freeman, a Black woman in her early sixties, who was working the election. Freeman had been raised in south Georgia by her grandmother, who worked in the tobacco fields; for years, she’d run a travelling clothing boutique, which she called LaRuby’s Unique Treasures. Her daughter, Wandrea ArShaye (Shaye) Moss, who was the other supposed perpetrator in the video—“the lady with the blond braids,” as Giuliani’s colleague described her—had helped administer the state’s elections after graduating college. Moss had recently been given a supervisory role, which she likened to “winning the golden ticket.” In 2src2src, when Freeman’s business slowed, Moss encouraged her to join the election effort. Neither had much interest in politics beyond insuring that voting went smoothly on Election Day. Freeman told me recently, of her decision to participate in 2src2src, “I said, ‘You know what, I’m gonna go and help Fulton County out.’ ”

Jordan told me, “I felt sick to my stomach for those women. I knew it was B.S., but I’m sitting here watching the video, like, ‘I don’t have an answer for this.’ ” Others did. “These are just typical everyday election workers who are just doing their jobs,” Gabriel Sterling, an official in the office of Georgia’s Republican secretary of state, told an Atlanta TV station the next morning. He also tweeted a fact check of the false claims. The ballots were all in standard containers, and those which were scanned after observers left were only those which had been opened in front of them. Sterling concluded that the video “shows normal ballot processing.” But Giuliani pressed on. A week later, he insisted that Freeman and Moss had been “quite obviously surreptitiously passing around USB ports as if they’re vials of heroin or cocaine.” (They were ginger mints.) The “Strategic Communications Plan” of the Giuliani Presidential Legal Defense Team, a group of lawyers which Giuliani put together to contest the election results, stated that Freeman was “under arrest” and part of a “coordinated effort to commit voter / election fraud.” (The plan noted, parenthetically, “Need confirmation of arrest and evidence.”) Elsewhere, Giuliani compared Freeman and Moss’s actions to a “bank heist” and said that they were “about as clear evidence of stealing votes as I’ve ever seen.”

Georgia election officials investigated the allegations and eventually cleared Freeman and Moss of any wrongdoing. The pair also testified about the lies before the House select committee investigating January 6th. But Trump had already taken up Giuliani’s narrative: in his call to Georgia’s secretary of state, in January, 2src21, he described Freeman as “a professional vote-scammer and hustler.” Countless Americans followed suit. “You deserve to go to jail, you worthless piece of shit whore,” a card sent to Freeman’s home read. A threatening e-mail arrived from A caller used the N-word and told Moss’s teen-age son that he “should hang alongside” his mother. People showed up at Moss’s grandmother’s house to attempt a citizen’s arrest. At the F.B.I.’s recommendation, the women went into hiding. Freeman stayed with friends, and then at motels and Airbnbs. Moss, meanwhile, holed up at home; her address had not been revealed. Both changed their hair styles, while Moss began further obscuring her face with masks and sunglasses. They eventually stopped communicating with friends. Moss was diagnosed as having depression and anxiety. Freeman felt lost. “My life is just messed up,” she said. “All because of somebody putting me out there on blast.”

Freeman hired a lawyer, though it wasn’t clear what could actually be done. But, in 2src21, the lawyer was approached by a nonprofit called Protect Democracy. The group had been founded a few years earlier by former lawyers in the office of the White House counsel during the Obama Administration. Protect Democracy, which now has more than a hundred employees and a budget of thirty million dollars, aims to defend America from authoritarianism; it has worked on a range of litigation, legislation, research, communications, and software projects—including VoteShield, a platform now monitoring the integrity of voter-registration data in two dozen states—and has successfully advocated for changes to election laws. One of its founders, Ian Bassin, was recently given a MacArthur “genius” grant. But P.D. has often pursued its goals in novel ways. It has recently begun to use defamation law—which was designed to protect against reputational damage rather than authoritarian takeover—to fight against the flood of disinformation. If the group sued the right liars, its members believed, they could stop dangerous lies from spreading. The strategy has concerned some free-speech advocates. But Bassin believes that targeted defamation suits can “produce a systemic rebalancing of incentives to advance truth.” In late 2src21, Protect Democracy sued Giuliani, and a half dozen others, for defamation of Freeman and Moss. Freeman, who often quotes from the Bible, told me that she felt like an underdog in the fight. “I think about David and his slingshot,” she said. “He had five smooth stones.”

Bassin is in his late forties, with glasses and a trimmed beard. His manner is equal parts erudite and empathetic, well-suited for the policy panels and TED-talk stages on which he has lately appeared. He grew up in New York, and attended Yale Law School, where he was friendly with the future Republican senator Josh Hawley. Bassin recalls that they debated the ideological fitness of the Supreme Court Justice Samuel Alito, who had been appointed recently. “I liked Josh at the time,” Bassin told me. “I thought he was a principled, pious conservative with whom I could have really interesting debates.” (Hawley, who is now among the most conservative members of the Senate, pumped his fist in the air on January 6th prior to the storming of the U.S. Capitol, and has said he doesn’t regret it. He declined to be interviewed for this story.) After law school, and a clerkship, Bassin joined Obama’s campaign. In South Carolina, he watched the 2srcsrc8 primary results come in at a crab shack alongside Black campaign volunteers, some of whom were descended from formerly enslaved people. When we first spoke, last winter, Bassin was in his home office. He wiped away tears as he shared the anecdote, then apologized for the digression.

Bassin worked for Obama’s White House counsel, where he helped guard against abuses of government power. His “Bible” was a trio of dusty binders, dating back to the Eisenhower era, that outlined how executive-branch employees should operate, he said, “in good-faith adherence to traditions.” After leaving the White House, he spent a few years working with activists on democracy and civil-rights issues in Syria and Afghanistan. In early 2src16, thinking that American politics was headed in the right direction, Bassin turned his attention to poverty in East Africa. On Election Night, as the Presidential returns came in, he got so angry that he kicked a box of files and broke his foot. Hours later, Bassin received an e-mail from a fellow Obama Administration alum, wondering what they should do. They shared most Democrats’ concerns that Trump would hasten climate change, attack reproductive rights, and gut the social safety net. “But those armies were already in the field,” Bassin told me—people were already fighting those fights. Instead, he and a small group of former White House counsel and D.O.J. lawyers homed in on Trump’s apparent desire to flout long-standing norms of the Presidency, such as using a private security firm instead of the Secret Service, enlisting the regulatory state to go after his critics, and requiring Muslims to register in a database. “It wasn’t clear what existing groups could do to push back against American democracy sliding into something authoritarian,” Bassin told me.

At one early strategy meeting, someone mentioned Viktor Orbán, the Prime Minister of Hungary, who had rolled back democratic norms there. American democracy, Bassin learned, had arguably been eroding in a similar manner for years, thanks to gerrymandering, the collapse of local news and rise of for-profit social media, and negative partisanship. An effective demagogue could set off what Harvard’s Steven Levitsky called “competitive authoritarianism,” in which an autocrat comes to power in multiparty elections, then dismantles democracy from within. There was a pattern to how this dismantling had unfolded in Venezuela, Hungary, Turkey, and elsewhere: the expansion of executive power, the corrupting of elections, the politicization of independent institutions such as courts and the military, the spread of disinformation. “We began organizing how to blunt these things,” Bassin told me. He and his colleagues chose the name United to Protect Democracy, and launched with seed money from the Women Donors Network and Reid Hoffman, the billionaire co-founder of LinkedIn. “I remember looking at the group’s mission statement and thinking it’s a little overwrought,” George Conway, the conservative lawyer and Trump critic, told me. “But no. It was prescient.”

Donald Trump currently personifies the wider authoritarian threat animating Protect Democracy’s work, but the nonprofit’s mission is formally nonpartisan. The organization has hired former staffers for Elizabeth Warren and Ted Cruz, and veterans of Vanity Fair and the Department of Defense. “The biggest weapon of mass destruction was the threat to democracy itself,” Alexandra Chandler, a former D.O.D. intelligence analyst who joined P.D., told me. “And it was at home.” Stephanie Llanes, who was a teen-age reggaetón performer in Puerto Rico before going to law school, recalled her first P.D. off-site meeting. “I was sitting across the room from a former Koch staffer,” she said. “I would not do that in any other setting. But I realized we were trying to model what we want the country to be.” John Paredes grew up in the Philippines, where, in the eighties, his grandmother and step-grandfather were sentenced to death by a military court for opposing the dictator Ferdinand Marcos. (Their sentences were overturned when Marcos was deposed.) After finishing law school in the U.S., Paredes joined a big firm. But then, he told me, “Rodrigo Duterte was elected in 2src16,” as President of the Philippines. “Then Trump here. I knew what I needed to do.” He’s currently leading a P.D. lawsuit against a group of Trump supporters who, in 2src2src, surrounded a Biden-Harris campaign bus with dozens of trucks and impeded its progress down a Texas highway.

P.D. is effectively engaged in a high-stakes game of Whac-a-Mole. In early 2src17, it focussed on Trump’s potential use of federal law enforcement to attack his opponents. “Essentially what Putin did to Alexei Navalny—but here,” Bassin told me. To guard against the weaponization of the D.O.J., every Administration since Watergate has issued a White House–D.O.J. Contacts Policy in order to, as Jimmy Carter’s Attorney General put it, in 1978, insure that “neither favor nor pressure nor politics is permitted to influence the administration of the law.” P.D. successfully helped pressure Trump’s White House, which had not released its policy, to do so. When Trump fired the then F.B.I. director, James Comey, for investigating ties between Trump associates and Russian interference in the election, midway through Comey’s term, “the policy helped make clear that this was offensive to the principle of independent law enforcement,” Bassin told me.

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