Six months ago, the owners of One America News Network asked a judge in Smartmatic’s defamation suit against the San Diego-based outlet to step down from the case.
This month, the federal magistrate gave her answer: Nope.
OAN called on Judge Moxila A. Upadhyaya, handling discovery disputes, to recuse herself from the D.C.-circuit case, citing her brief role in a Venezuelan civil suit.
The Trump-friendly network hinted Upadhyaya was tainted by her legal ties to the communist government of Venezuela in a case involving its 2018 presidential vote, widely condemned as a sham election.
But in a 17-page opinion filed Dec. 8 but unsealed Saturday, Upadhyaya said her 17-day involvement in the 2019 Rusoro Mining case had nothing to do with the Smartmatic suit.
“Despite OANN’s attempt to create a meaningful overlap between the two cases, that connection does not exist,” she wrote.
“During the time I was involved in Rusoro Mining, one legal issue was raised: Which firm — Venable or Arnold & Porter —spoke on behalf of the government following the 2018 Venezuelan election given both [Nicolás] Maduro and [Juan] Guaido’s claims of victory?”
She said that question had nothing to do with Smartmatic, OAN, OAN’s allegedly defamatory statements or the 2020 U.S. election — which OAN baselessly said Venezuela helped rig for Joe Biden.
“Significantly, the actual outcome of the 2018 Venezuelan election is not a disputed issue at trial,” Upadhyaya said. “I will not be asked to rule upon the outcome of or any disputed issues relating to the 2018 Venezuelan election, and neither party has claimed as much.”
Election-tech company Smartmatic, which is suing OAN for billions of dollars, has noted that it quit doing business in Venezuela after the 2017 National Constituent Assembly election.
Upadhyaya said the question at issue when she was involved in the Rusoro Mining appeal was not a legal issue in the Smartmatic case, “and this case is not a proxy dispute over the legitimacy of the Venezuelan government.”
In her analysis of case law and arguments by OAN’s owner, Herring Networks, Upadhyaya says “OANN does not claim that I have any actual bias in this case and does not question my impartiality, integrity or commitment to fairness in this case or generally.”
Instead, she said, the right-wing network argues that her prior representation in Rusoro Mining “created an appearance of [not being impartial] under § 455(a) which requires recusal.”
She says OAN conceded that its arguments were weak.
Finally, she wrote:
OANN makes a half-hearted argument for recusal because one of my former law partners represented companies which allegedly were a “high-level” contributor to Maduro. As OANN correctly points out, I was not involved in any of these cases. OANN also concedes that this basis alone would not warrant my recusal. … This client of my former law firm partner is not a party to this case. Nor is he alleged to have an interest in the outcome of this case. There is no overlap in any way between the two cases.
She concluded: “After careful consideration of the parties’ arguments, and guided by the principle that judges have as much a duty to deny a recusal request when it is not required as to grant it when the law demands, OANN’s motion is DENIED.”
Early Tuesday, OAN lead trial lawyer Chip Babcock told Times of San Diego that no appeal was planned.
“We have already informed the judge that we do not intend to appeal,” he said via email. “The court obviously considered the matter very seriously based on her thorough opinion and the time she devoted to researching and writing it. We could not ask for anything more.”
Meanwhile, OAN’s role in another election-denial case has gone virtually unnoticed.
When a Washington jury ordered former Trump lawyer Rudy Giuliani to pay two Georgia election workers $148 million for his 2020 vote-rigging lies, few remarked that the case had its origins in a suit against One America News.
But in May 2022, after Herring Networks settled with the Georgia mother and daughter — Ruby Freeman and Wandrea “Shaye” Moss — OAN was dropped from the suit.
OAN announced on air (and temporarily via social media) that Freeman and Moss did not engage in ballot fraud or criminal misconduct while working at State Farm Arena on Election Night.
“A legal matter with this network and the two election workers has been resolved to the mutual satisfaction of the parties through a fair and reasonable settlement,” OAN said before deleting tweets to that effect.
Also this month: OAN has agreed to let George Soros and his Open Society Institute (now called Open Society Foundations) have until Jan. 5, 2024, to submit arguments why it shouldn’t have to comply with an OAN subpoena for documents.
“On July 10, 2023, counsel for Mr. Soros accepted service of a subpoena [from OAN] to produce documents,” says an emergency motion filed Dec. 14 by Soros attorney Elizabeth J. Bower. “On August 9, 2023, counsel for OSI accepted service on behalf of OSI of a subpoena to produce documents.”
It isn’t clear why OAN wants documents from Soros and his foundations, but The Associated Press in March 2020 (among others) debunked a social media post that said: “Defeat election fraud! On election day, if your voting machine is a SmartMatic brand, Demand a paper ballot. George Soros now owns SmartMatic.”
But the company’s website, smartmatic.com, declared that “George Soros does not have and has never had any ownership stake in Smartmatic.”
A recent fact-check added: “George Soros has no ownership interest in Smartmatic, nor is he an investor. He’s not on the Board or otherwise employed by Smartmatic. He never has been. That’s been proven time and again.”
A discovery status conference is set for 11 a.m. Thursday before Judge Upadhyaya, who is helping out U.S. District Judge Carl J. Nichol in the 2-year-old case.