Former Trump campaign lawyer Sidney Powell yesterday responded to the $1.3 billion defamation lawsuit that Dominion Voting Systems filed after she repeatedly accused the company of participating in an elaborate international conspiracy to deny Donald Trump his rightful victory in last year's presidential election. Her defense, more or less, is that she did not really mean what she said.
True, Powell claimed over and over again that Dominion rigged voting machines to manufacture "millions" of votes for Joe Biden. She fingered a specific Dominion executive as largely responsible for the scheme, claimed the plot had its roots in fraud-facilitating software that had helped keep Venezuelan strongman Hugo Chavez in power, and said China, Cuba, and George Soros were also in on it. But "no reasonable person would conclude that the statements were truly statements of fact," Powell says in her motion to dismiss the lawsuit.
Powell thus implies that Trump and the millions of supporters who still believe he actually won the election, thanks in no small part to the fantasy she concocted, do not count as reasonable people. Fair enough, I suppose, although one might question the wisdom of throwing them all under the bus if Powell hopes to continue profiting from their credulity. But why does Powell purport to be surprised by the fact that so many Trump followers believed her?
First of all, Powell says, "the broader societal context of the statements here is a political one," since "they all concern the 2020 presidential election, which was both bitter and controversial." She does not pause to consider her own outsized contribution to that bitterness and controversy, although she does note that "the highly charged and political nature of the statements…underscores their political and hence partisan nature."
Since Powell was making political statements, she implies, she had a license to lie. After all, political rhetoric "is often vituperative, abusive and inexact," and "political statements are inherently prone to exaggeration and hyperbole." Here she is quoting the Supreme Court and the 9th Circuit, respectively, although I'm not sure those observations can be stretched to cover a baroque conspiracy theory that includes many specific factual claims. When someone says Biden stole the election with help from a voting technology company that was determined to deny Trump a second term no matter how many laws it broke in the process, she has ventured far beyond hyperbole and inexactitude.
Powell also argues that the preposterousness of her allegations should protect her from civil liability for damaging Dominion's reputation. "Plaintiffs themselves characterize the statements at issue as 'wild accusations' and 'outlandish claims,'" she notes. "They are repeatedly labelled 'inherently improbable' and even 'impossible.' Such characterizations of the allegedly defamatory statements further support Defendants' position 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's evidence, which she likened to a "fire hose" and a "Kraken," was indeed tested by the courts, and they were uniformly underwhelmed. "Plaintiffs append over three hundred pages of attachments, which are only impressive for their volume," a federal judge in Arizona wrote. "The various affidavits and expert reports are largely based on anonymous witnesses, hearsay, and irrelevant analysis of unrelated elections." A federal judge in Michigan likewise observed that Powell offered "nothing but speculation and conjecture that votes for President Trump were destroyed, discarded or switched to votes for Vice President Biden."
Powell argues that Dominion can hardly blame her for the ill-repute she fostered, because "those members of the public who were interested in the controversy were free to, and did, review that evidence and reached their own conclusions—or
awaited resolution of the matter by the courts before making up their minds." Hence "the statements are not actionable."
You might think a person who makes reckless, reputation-damaging claims she cannot possibly back up is guilty of defamation. But in Powell's view, that cannot be right, because her accusations were patently ridiculous yet at the same time utterly sincere, awaiting the logical analysis and careful reflection that were beyond her abilities. She "disclosed the facts upon which her conclusions were based," leaving it for others to determine whether to credit those "conclusions," which were statements about what purportedly happened during the election but emphatically were not "statements of fact."
After passionately and persistently telling her tall tale of a stolen election last year, Powell is now arguing that only a fool would have taken her at her word. I doubt that will endear her to diehard Trump fans, but I have been surprised before by their capacity to nod along with anything that seems to serve his cause.
Update: On her website, Powell says "the #FakeNews is lying to everyone about our filing in the Dominion case," adding that "my position has not changed." She complains that "the press is using twisted legalese and manipulating the legal standard to confuse the issue."
If anyone is confusing the issue, it is Powell. Her website says her allegations of systematic election fraud were "legal opinions that she stands behind, as they were based on sworn affidavits, declarations, expert reports and documentary evidence." But at the same time, she insists those "legal opinions" are not actionable because they were not "statements of fact."
Powell can't have it both ways. If Dominion did in fact fix the election, she is off the hook, because truth is an absolute defense against defamation claims. But if Dominion did not fix the election and Powell recklessly claimed that it did, she cannot save herself simply by describing her factual assertions as "legal opinions" or "political statements."