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Powell’s Pathetic Dominion Defamation Defense

Here’s why her case—that no reasonable person would take seriously her “wild” and “outlandish” claims about election fraud—falls apart.
March 25, 2021
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(Photo By Tom Williams/CQ-Roll Call, Inc via Getty Images)

On Monday, the lawyers for one of Donald Trump’s former election lawyers, Sidney Powell, filed a 44-page motion asking a federal judge to dismiss Dominion Voting Systems’s defamation lawsuit against her. Dominion’s complaint alleges in painstaking detail that Powell falsely claimed “that Dominion rigged the 2020 U.S. presidential election by manipulating votes, shifting votes, installing and using an algorithm to modify or ‘weight’ votes such that a vote for Biden counted more than a vote for Trump, trashing Trump votes, adding Biden votes, or training election workers to dispose of Trump votes and to add Biden votes.”

We all know now that this was part of the Big Lie, with virtually zero factual support to date.

Undeterred, Powell seeks to have it both ways. Through her lawyers, she claims on one hand that she based her allegations on facts. On the other, she asserts that no reasonable person would believe that her claims were facts. Powell’s word-salad of tortured logic and self-contradiction will fool no one.

Other public figures—including Fox News’s Tucker Carlson and MSNBC’s Rachel Maddow—have similarly rebutted defamation charges by arguing that not everything they say on air can be construed as verifiably true. Like Powell, the conspiracy theorist Alex Jones of Infowars went further when sued by Sandy Hook parents a few years ago, arguing that he can speak untruths on air while maintaining that the untruths are true, regardless of defamation laws.

Powell’s case is a bit different. She did not speak as a news anchor or pundit, but as a lawyer who was acting in the capacity of a lawyer—and thus bound by a slew of ethical obligations of candor and accuracy that accompany a license to practice law. For starters, she cannot make insupportable factual representations to a court without running afoul of sanctions rules.

Dominion’s defamation case isn’t about Powell’s statements in court, but instead about her public lies. In general, a defamation claim requires that the plaintiff prove a few things, including that a statement about the plaintiff was disseminated—or published—to a third party; that it was false and provable as false; and that it damaged the plaintiff. If the plaintiff is a public figure under the law (Powell claims that Dominion qualifies), it must also prove that the defendant acted with actual malice.

In her papers, Powell argues that her feeding of the Big Lie wasn’t actually defamatory, and that the complaint should therefore be dismissed outright, without any investigation into the facts underlying her statements. Citing a 1969 Supreme Court case, Watts v. United States, Powell argues that regular people understand that what folks say “in the political arena . . . is often vituperative, abusive and inexact,” and that even Dominion alleges that her statements were “wild accusations,” “outlandish,” “inherently improbable, if not outright impossible.” Because her lies were so demonstrably absurd that no reasonable person could believe them to the detriment of Dominion, Powell argues, they didn’t actually amount to defamation.

Powell also waves around the First Amendment to justify dismissal of Dominion’s case, but that argument may be overblown, as defamation claims aren’t per se unconstitutional. The question is whether Powell’s statements were actionable as a matter of law. On that, the Supreme Court’s decision in Watts doesn’t help her. Watts was a criminal case involving a comment directed at President Lyndon B. Johnson during a political gathering. The Court held that it didn’t give rise to an actionable threat against the president under the federal criminal laws.

Invoking the judicial system as cover for her false claims, Powell goes on to argue that, “given the highly charged and political context of the statements, it is clear that Powell was describing the facts on which she based the lawsuits she filed in support of President Trump,” and that “reasonable people would not accept such statements as fact but view them only as claims that await testing by the courts through the adversary process.” Powell draws parallels to the Department of Justice and the NAACP to add that “making public announcements as to the status of cases that affect the public interest is an accepted and time-honored means of keeping the public advised about litigation that may have a profound effect on their lives.”

Of course, Powell’s false assertions that Dominion was created in Venezuela to rig elections at the behest of a deceased dictator, Hugo Chávez, and that the company bribed Georgia officials for a no-bid contract, were hardly in the public interest. To compare her to DOJ and the NAACP makes a mockery of the rule of law and the judicial system.

Powell also cites a 1994 case from the Supreme Court of Colorado, Keohane v. Stewart, for the proposition that her remarks were take-it-or-leave-it rhetoric—not something that people should take seriously. But that case doesn’t save her, either. In Keohane, the court affirmed that a city council member’s remarks to a newspaper reporter about a judge accused of accepting a bribe were actionable as defamatory. That defamatory exchange went like this:

City council member: “What do you think, was he paid in drugs or money?”

Reporter: “What?”

City council member: “Do you think he was paid off in cash or cocaine?”

Reporter: “Steve, you are a real piece of work.”

Compare the facts of Keohane to just one of many paragraphs in Dominion’s 124-page complaint:

After being introduced as a lawyer for the Trump Campaign and President Trump, Powell falsely told a global audience that Dominion was “created in Venezuela at the direction of Hugo Chávez to make sure he never lost an election,” that Dominion flipped votes from Trump to Biden by running an algorithm that automatically flips all the votes, and that George Soros’s “number two person” Lord Malloch Brown was “one of the leaders of the Dominion project.” Based on these false assertions of fact, Powell stated, “There should never be another election conducted in this country, I don’t care if it’s for local dog catcher, using a Dominion machine. . . .”

On its face, this scenario is a far cry from Keohane.

At this stage of the litigation, Judge Carl J. Nichols, a Trump appointee, should reject Powell’s cynical ploy to use her willingness to file garbage in court as a legal defense to Dominion’s defamation complaint. After all, she could still win her case after discovery, arguing on the facts that her statements were not believable, nonetheless true, and made without actual malice (assuming that standard applies here).

Barring that, Powell’s conduct warrants sanctions and possible disbarment, as political leaders in Michigan have already urged. Our courts of law—and the public at large—deserve better than this.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.