On March 22, lawyers representing far-right attorney Sidney Powell asked a federal judge to dismiss Dominion Voting Systems' defamation lawsuit against her. Conservative law professor Kimberly Wehle, in an article published by The Bulwark on March 25, lays out some of the major flaws in Powell's defense.
After the 2020 presidential election, Powell was among the attorneys who filed lawsuits promoting then-President Donald Trump's bogus, totally debunked claims of widespread voter fraud — and she had a lot to say about Dominion, claiming that its voting technology was used to help now-President Joe Biden steal the election just as it was used to help the late leftist President Hugo Chávez steal votes in Venezuela. It wasn't hard for Dominion to debunk Powell's claim, as Dominion's equipment had never even been used in that South American country.
Now, Powell's defense in the defamation lawsuit is that her claims after the 2020 election couldn't possibly have been taken seriously.
"Powell seeks to have it both ways," explains Wehle, who teaches at the University of Baltimore law school and is a former assistant U.S. attorney. "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."
Wehle goes on to point out that some media figures — including MSNBC's Rachel Maddow and Fox News' Tucker Carlson — have "rebutted defamation charges by arguing that not everything they say on air can be construed as verifiably true."
"Powell's case is a bit different," Wehle observes. "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."
Wehle points out that in a defamation lawsuit, the plaintiff must "prove that the defendant acted with actual malice."
The law professor observes, "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…. Powell also waves around the 1st 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."
Powell's attorneys, in her defense against Dominion, argue 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." And Powell's team compares her to both the U.S. Department of Justice and the NAACP, arguing 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," Wehle writes, "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."