A federal judge on Friday agreed a former executive of Denver-based Dominion Voting Systems may proceed to a jury trial against an Oklahoma podcaster who spread unsubstantiated allegations of election rigging and “treason” in the wake of the 2020 presidential election.

U.S. District Court Senior Judge William J. Martínez concluded certain statements disseminated by Clayton Thomas “Clay” Clark and his “Thrivetime Show” were not simply opinions or hyperbole. Instead, the defendants publicly conveyed that plaintiff Eric Coomer committed a crime by purportedly altering the outcome of the election.

“In the Court’s view, this was not mere political invective or opinion statement; rather, Clark unequivocally told his audience that Coomer literally committed the crime of treason,” wrote Martínez in an April 25 order.

Coomer, the former director of product strategy and security for voting technology supplier Dominion, has filed a series of lawsuits against conservative figures alleging the same basic sequence of events.

Coomer’s claims originated with a November 2020 podcast recorded by Joe Oltmann of Colorado. Days after the presidential election, Oltmann alleged he had recently listened in on an “antifa” conference call — a reference to anti-fascist ideology.

On the call, an unnamed participant referenced “Eric … the Dominion guy.” Oltmann alleged “Eric” said, “Don’t worry about the election, (Donald) Trump is not gonna win. I made f-ing sure of that.”

Oltmann then conducted his own “investigation” by Googling the terms “Eric,” “Dominion,” and “Colorado.” Based on limited other information found online, he concluded Coomer was the one who allegedly made the comments of election rigging. Oltmann repeated his story publicly, even after the Cybersecurity & Infrastructure Security Agency found “no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.”

Coomer sued Oltmann, media figures, Trump’s 2020 campaign and Trump’s lawyers after they amplified the unproven accusations. Coomer alleged receiving credible death threats and that he was forced to hide for fear of his safety as a result of the incendiary story. 

The lawsuit against Clark and the “Thrivetime Show” sought to hold the defendants liable for repeating the election-rigging story, including by inviting Oltmann as a guest on the show and onstage at live events to talk about Coomer. Coomer sought $33.8 million in damages.

In November, the defendants sought to end the case in their favor on most of the statements alleged to be defamation — while conceding that the remaining statements would be subject to a jury trial. Noting that Colorado law treats each statement as a separate ground for defamation, the defendants argued that many of the communications did not advance a provably false assertion about Coomer.

For example, one podcast episode was partly titled “Exposing the Treasonous Eric Coomer.” Oltmann also said on Clark’s show that “frankly, if they’re found to have suppressed the voice of the American people, if it rises to that level, they can be put to death.”

“Here, the challenged statements are phrased as exaggerated rhetorical hyperbole (‘fraud’, ‘treason’) that are not susceptible to proof of truth or falsity precisely because these expressions are phrased as opinion,” wrote attorneys for the defendants. “The use of ‘treason’ does not actually accuse Plaintiff of levying war against the United States or giving aid and comfort to its enemies and cannot reasonably be understood as such in the context of the podcast.”

Martínez disagreed with that characterization.

“The Court begins by observing an important concession made by Defendants: they do not contest,” he wrote, “that their alleged statements that Coomer ‘bragged about rigging the 2020 election during an “Antifa” conference call in September 2020’ are defamatory.”

Martínez noted the state’s Court of Appeals, in one of Coomer’s other lawsuits against Trump’s campaign, already concluded last year that statements accusing Coomer of a crime amounted to defamation. Consequently, he agreed that several statements at issue in the federal case fell into the category of defamation.

“Contrary to Defendants’ assertion, the context of Defendants’ use of the word ‘treasonous’ in the podcast headline, in combination with the rest of the episode’s content, reveals that it was meant literally, not hyperbolically,” he wrote.

At the same time, Martínez concluded the allegations that Coomer was an antifa member were not necessarily defamatory. Given that antifa refers to an ideology, not a formal organization, “the Court doubts that it is possible for one to reliably prove or disprove the truth of one’s membership, at least in the defamation context,” he wrote.

A jury trial is scheduled to begin in September. Without objection from Coomer, Martínez dismissed the related claim against Clark alleging a civil conspiracy.

The case is Coomer v. Make Your Life Epic, LLC. et al.