Looks like we can figure out which side of the Dominion defamation lawsuit is really looking forward to discovery. Sidney Powell told the court in her response that no defamation took place because her lawsuits and public statements amounted only to her opinion, not anything that a “reasonable person” would believe were “truly statements of fact.”
By golly, she may be on to something here:
Signed by Powell’s lawyer Lawrence J. Joseph, the memo shows Powell’s legal strategy for attempting to jettison a potentially billion-dollar price tag over what came to be known as the “Kraken” lawsuits, named after the mythical, octopus-like creature depicted in the Hollywood blockbuster Clash of the Titans. In the movie, the monster was easily slain, and the four lawsuits filed by Powell and her co-counsel Lin Wood alleging a giant plot between voting companies and foreign powers to interfere with the election met with the same fate.
In her motion to dismiss, Powell does not argue that the statements were true. She claims they are not actionable because they are protected statements of political opinion.
“Reasonable people understand that the ‘language of the political arena, like the language used in labor disputes … is often vituperative, abusive and inexact,’” her motion to dismiss argues. “It is likewise a ‘well recognized principle that political statements are inherently prone to exaggeration and hyperbole.’”
When Powell repeated her conspiracy theories on Fox News, Fox Business News and The Epoch Times, her lawyers claim, she was just informing the public about the ideas that she was advancing in her lawsuits.
“It would make no sense, and serve no public purpose, to give immunity for statements made during the course of litigation – which are themselves public – but burden lawyers with the threat of billion-dollar defamation verdicts when the same allegations are made at press conferences and news releases announcing and discussing the case,” her memo states.
Read the full complaint here, which is notable for its lack of attempt to win the case by proving Powell’s “Kraken” allegations about Dominion. Remember when Powell’s supporters insisted that Dominion had played right into Powell’s hands by opening themselves up to discovery? Nothing in this filing argues for the positive defense of Powell’s statements being the truth. Instead, it’s filled with arguments about jurisdiction, venue, opinion, and lack of malice. Those are not the arguments of a respondent about to drop a truth bomb in a defamation case, or even setting up a fight for discovery on those points.
Most of those arguments are technical (and perhaps might be more fruitful for Powell), but the dodge on “opinion” is rather laughable, as is the point about malice. Powell repeatedly asserted alleged (and false) statements of fact about Dominion’s origins, software, and operations that Dominion repeatedly rebutted, both in public and in cease-and-desist letters. Those weren’t opinions, nor did Powell intend for them to be taken that way. She and others pushing the Dominion defamation intended people to take them as “truly statements of fact” in their push to overturn the election. And indeed a lot of people did so, although whether those were reasonable is an entirely different question.
5.Although Powell assured the public during television and radio appearances that her claims were backed by “evidence,” Powell’s “evidence” included declarations from a motley crew of conspiracy theorists, con artists, armchair “experts,” and anonymous sources who were judicially determined to be “wholly unreliable.”3 One of Powell’s wholly unreliable sources was a purported “military intelligence expert” who has now admitted that he never actually worked in military intelligence, that the declaration Powell’s clerks wrote for him to sign is “misleading,” and that he “was trying to backtrack” on it.4 After he was discredited, Powell pivoted by presenting his declaration as having been written by a different anonymous source.
6.During some of her media appearances Powell also touted a shocking declaration from an “anonymous source” purporting to be a Venezuelan military officer alleging a decades-old conspiracy beginning with now-deceased Venezuelan dictator Hugo Chávez.5 But the explanation in the “anonymous witness’s” declaration for why he purportedly came forward was a near-verbatim recitation from another declaration put forward by Powell, proving that those witnesses did not write their declarations independently and raising serious questions about what role Powell and her team played in drafting the declaration.6
Powell never framed these as “opinion,” but statements of fact for which she possessed evidence as proof of her claims. And that’s just a small taste of the insanity behind the “Kraken.” That makes the “opinion” claim rather risible, especially for an officer of the court filing legal claims on these bases. Powell’s filing also argues that she was acting on behalf of clients in making those claims and should have an attorney’s privilege as a shield against defamation, but Powell was raising money independently off of these claims too. That makes her status as an attorney-for-hire in these lawsuits questionable at best, and the commercial gains made certainly strengthen Dominion’s claims that the whole setup was a fraud at their expense.
There will be plenty of legal wrangling left to go, but one thing is clear. Powell has no grand plan for discovery, and if she doesn’t, you can be sure Rudy Giuliani and Mike Lindell don’t either, even if they might think they do. It was all a flim-flam, and Dominion has Powell at least straining for technicalities and laughable rewriting of history to escape their clutches.