Powell's explanations of the alleged fraud machinations included the involvement of a South American leader who died five years before he was apparently plotting against Trump and were as deranged as they were comedic. Indeed, Powell's conspiracy theories were so off the rails that the Trump campaign lied and tried to claim she did not work for them. Even Rudy "Four Seasons" Giuliani thought she was a little too loopy. And because Powell repeatedly name-checked Dominion Voting Systems, the voting machine company rightly included her in its $1.3 billion defamation lawsuit.
Powell is no doubt scared — and she should be. She is also panicking. She is now arguing that Dominion's lawsuit should be dismissed because what she said about the election over the course of several weeks was total bullshit and "no reasonable person [sh]ould conclude" that what she said "were truly statements of fact". . . . Seriously. That's her defense.
Sidney Powell’s defense: “Everything I said about Dominion was bullshit. If you believed anything I said, you’re an idiot. It’s your fault, not mine.”— Joe Walsh (@WalshFreedom) March 22, 2021
I may not be a lawyer, but I can state with a fair amount of authority that "I knew what I said was a lie and everyone listening should have known it was a lie, too" will not cut it against a defamation lawsuit. Powell may well have known she was taking nonsense, but she also knew Trump's supporters believed every word. And that's why she kept saying it. Those press conferences may have looked like the performances of an absurdist comedy troupe, but that was not their intent.
To win its defamation case, Dominion has to prove that (a) the statements made about it were false and (b) the people making those statements knew they were false when they said them. Powell has just proven Dominion's case with one simple statement -- which she apparently hopes will get the lawsuit dismissed!
During an infamous November 19 news conference, for instance, she asserted that there was a "globalist" conspiracy to take down Trump — improbably involving the late Venezuelan dictator Hugo Chávez — and asserted that "in the middle of the night, after they've supposedly stopped counting, and that's when the Dominion operators went in and injected votes and changed the whole system."
"In the middle of the night, after they've supposedly stop counting, and that's when the Dominion operators went in and injected votes" -- the conspiracy theories about "globalists dictators" being pushed by Sidney Powell would make Alex Jones blush. They are absolutely insane. pic.twitter.com/3WAaE3POWT— Aaron Rupar (@atrupar) November 19, 2020
There was just one problem for Powell: She was never able to produce a shred of evidence for her claims.
Powell is employing the same defense Fox News used to defend Tucker Carlson against a defamation suit filed by former model Karen McDougal. Fox's lawyers argued that no "reasonable viewer" could possibly take anything that Carlson says seriously. (Put aside for a moment the crazy idea that Carlson has any "reasonable" viewers.)
Fox argued that "given Mr. Carlson's reputation", he "cannot be understood to have been stating facts". Viewers of his show should know, by its "general tenor", that "he is not 'stating actual facts' about the topics he discusses and is instead engaging in 'exaggeration' and 'non-literal commentary'".
Those claims are amusing, but the judge agreed, ruling that "any reasonable viewer 'arrive[s] with an appropriate amount of skepticism' about [Carlson's] statements".
Politicus USA quotes this part of Powell's filing:
Powell has lied her way into a very tight corner.
Determining whether a statement is protected involves a two-step inquiry: Is the statement one which can be proved true or false? And would reasonable people conclude that the statement is one of fact, in light of its phrasing, context, and the circumstances surrounding its publication. Keohane, 882 P.2d at 1299.
This inquiry is determined as a matter of law. Bucher v. Roberts, 595 P.2d 235, 241 (Colo. 1979) ("Whether a particular statement constitutes fact or opinion is a question of law."). Analyzed under these factors, and even assuming, arguendo, that each of the statements alleged in the Complaint could be proved true or false, no reasonable person would conclude that the statements were truly statements of fact.
Powell is saying that any reasonable person should have known that she was going on television and lying as part of a coup attempt to overturn the election. Since her lies should have been reasonably known to be BS, she should have no legal liability for smearing Dominion.
That's not how any of this works.
In the Eastern District of Michigan, Powell is facing motions for sanctions over a lawsuit she filed seeking to overturn the election results. Separately, Powell is fighting a federal defamation lawsuit from Dominion Voting Systems in Washington, D.C., over statements she made alleging the voting company played a role in causing Trump's election loss.On Monday, Powell's legal team claimed her comments about Dominion are protected because it was political speech and made in furtherance of her "Kraken" lawsuits challenging the election results. All of those lawsuits were thrown out of federal court. . . ."Ethics rules permit a lawyer to take inconsistent legal positions in different courts at different times on behalf of different clients. But that's not what we have here," Renee Knake Jefferson, a law professor with the University of Houston, said in an email."Powell's defense in the defamation lawsuit undermines her defense in the disciplinary proceeding," Jefferson said.Stephen Gillers, a law professor with New York University who studies legal ethics, concurred. "Powell is in a bind," he said in an email. "If she claims that her statements, though false, could not reasonably be believed and therefore not defamatory, she will risk discipline if she said the same things to a court. There is no 'political hyperbole' defense to lying to the court." . . .It's not just Powell who's facing a Dominion defamation suit: Fellow Trump attorney Rudy Giuliani was also sued by the voting company last month. He has not yet responded to the complaint in court. He is also being sued by the voting systems maker Smartmatic in New York.Giuliani backed the election fraud claims publicly and said he was leading the Trump campaign's legal strategy in the suits . . .