Sydney Powell (remember her? One of Trump’s most ridiculous defenders?) is being sued for defamation, because her lies cost a company that made voting machines a heck of a lot of money. Her defense is a grifter’s work of art.
Right-wing lawyer Sidney Powell is claiming in a new court filing that reasonable people wouldn’t have believed as fact her assertions of fraud after the 2020 presidential election.
The election infrastructure company Dominion Voting Systems sued Powell for defamation after she pushed lawsuits and made appearances in conservative media on behalf of then-President Donald Trump to sow doubt about the 2020 election results. Dominion claims that Powell knew her election fraud accusations were false and hurtful to the company.
Did you believe anything she said? Then Sydney Powell believes you weren’t a reasonable person. Ha ha, don’t you feel foolish now?
I guess that was the kraken, the revelation that Powell was a fraud and a liar.
As a legal matter, the defense is not so far fetched, because a statement is only defamatory if a reasonable person would believe it. If I say that PZ is a UFO alien time traveler who has sex with fourth-century Mongol children, that statement is probably not defamatory because no reasonable person would believe it.
But on the broader issue, she did in fact just announce that no reasonable person would have believed her. That strikes me as a career ender for an attorney, but maybe I’m just old fashioned.
IIRC, Dominion got a contract with a government entity, only to lose it when the constituents objected. So, yeah. They have objective proof of the damage done to their brand.
Seems to me that claiming that when you filed a bunch of legal papers with various courts those papers were full of obvious bullshit isn’t a good thing for the future of your law license.
I was just discussing this case elsewhere. In addition to all the other problems, and the easily mockable assertion that she wasn’t making statements of fact, merely statements of “arguing that the facts might be this way but we’ll have to wait until a court of law says yes or no”, Powell’s response included a citation to a Planned Parenthood of Columbia/Willamette case from 2001.
Curiously enough I was living in their service district at the time, and though just a lay person at the time, I did have a strong interest in the law even back then. I followed the case and the quote that they used seemed a little to favorable to a party accused of defamation and threat, considering how the case was resolved.
Was this a dissent? There was no evidence in the citation that it was (and there should have been, if it was).
So, of course, I got curious. I looked it up and YEPPERS! there was some fucked up shit going on.
The case, I now remember but had forgotten, was decided against Planned Parenthood at first. That decision was from a 3 judge panel. Before appealing to SCOTUS you have to at least try to get the whole 9th Circuit to hear the case, appealing the panel decision to the full body.
As it happened, the full court accepted the appeal and reversed the panel, resulting in a win for PPC/W that was not overturned by SCOTUS.
So what’s happening here is that Powell’s lawyers are not citing good precedent. They’re citing a decision of a panel which sounds authoritative since panel decisions are listed as decisions of the Circuit Court of Appeal from which the panel was drawn. Unlike when citing a dissent, until you look up the decision your readers can’t tell that it was a decision of a panel or of the full court.
So they cite what appears to be a controlling authority – the 9th Circuit – but fail to cite that the actual final holding of that exact authority was the reverse of the decision Powell’s lawyers’ cited.
Now, this isn’t something that gets you penalized before an ethics committee (at least not in British Columbia, and at least not if you do it once or twice), but it is something that’s frowned upon unless you make it clear that you’re citing a decision that was later overturned. Usually, if there’s a use for this kind of thing at all, you’ll put in a footnote that the decision was overturned, but overturned on grounds that do not affect the substance of the quoted portion.
Theoretically a 9th CCA panel can make a great, pithy statement about the law on a substantial point and then have the case thrown out by the full CCA or by SCOTUS because of standing, which, of course, has nothing to do with the merits of the case. Citing something like that can be useful as persuasive evidence for your view, though not controlling precedent, but if you aren’t clear about what you’re doing, well, it’s bad form.
Worse than bad form, of course, is if the judge gets pissed off at you because you didn’t make clear you were citing an overturned case and put forward a reason your citation should be persuasive anyway. After all, they probably had to read a bunch of extra stuff, including most if not all of the decision that overturned your citation, to see if the quoted portion is affected by the decision that did the overturning. You could have made the judge’s job easier, and you didn’t. That kind of thing makes judges grumpy. And you wouldn’t like judges when they’re grumpy.
In any case, yeah: Not what I would call great lawyering and I’m not even an expert on this or anything.
Didn’t Fox News make a similar argument about a Tucker Carlson defamation suit…it’s not news, it’s entertainment, who would believe him?
Dominion charges that she knew she was making false claims. She seems to be admitting that, but her lawyers say she was just expressing an “opinion”…a popular legal dodge lately. IRCC, she did say she had “affidavits” that would prove votes were changes. That would seem to go beyond mere opinion.
More layers of lawyers.
If her claims aren’t to be taken seriously from any reasonable person then she is saying she made unreasonable arguments in a court of law, which is kind of mildly frowned on last I checked. As in, getting disbarred level of frowned on, or perhaps perjury charges, depending.
Isn’t it hurtful to this “election infrastructure company” and others like it, if I say we should’ve never allowed such a monstrosity to exist? I have no doubt that it tarnishes its image or whatever … but is that a problem?
So, in court, she claimed no reasonable person would believe the claims she makes in court. Is this a version of the liar’s paradox?
“IRCC, she did say she had “affidavits” that would prove votes were changes. That would seem to go beyond mere opinion.”
These affidavits were presented to lower courts, considered, and rejected. It turns out an affidavit stating “I heard someone say X and I assumed that meant they were doing crimes” isn’t actually proof of anything except that you heard someone say something. It certainly is not a proof of crimes.
This is a real question.
I thought the point was that Sidney Powell caused real, measurable damage to Dominion.
Sidney may have told a ridiculous lie, but the damage she wrought with it was real.
Isn’t that the point?
Since they appear to believe her words, isn’t Powell saying that over 170 Republican Members of Congress are NOT reasonable people?
How many press conferences did she give to promote the lie?
Why would anyone expend so much energy to promote lies if they did not believe them?
The Dominion suit clearly states that she knew she was lying through her teeth, so all she has done by making claims about reasonable people is to prove beyond a showdown of a doubt that she herself is both unreasonable and a lying bit of swamp scum.
showdown= shadowAnd speaking of damaging Constitutional Amendments, isn’t her defence essentially the First Amendment insane right to say whatever the hell you want no matter how much it damages American people and society?
Maybe I’m just being reasonable, but wasn’t that plainly obvious at the time?
@James#10:
Not really. Lets say I call the Queen of England a member of the lizard people in a pub. Some idiot believes me and shoots the Queen. Can I be held liable in any way for that?
I agree with #6, this defense could prove costly. She basically admitted to deceiving the courts with intent. You can’t get away by calling something a prank. But I guess it was either this or admitting to being an idiot.
No reasonable person, except the president of the united states and a bunch of republican congresspeople. She just called her masters a bunch of dumbasses. That’s true but there have still been damages.
I wonder if Rudy’s going to try that maneuver too. “I have no credibility! Look at the landscaping press conference I held for comedic effect. I’m doing a Borat!”
The underlying idea of a “reasonable person” test is presumably that something a “reasonable” person would ignore (or otherwise be immune to) won’t be especially harmful.
But implicit in that logic is the assumption that most people are “reasonable”. When tens of millions of people aren’t, then even something a reasonable person would ignore has the potential to do vast harm.
It would be a pretty sad day if the legal system had to abandon standards like that from a chronic dearth of reasonableness.
Actually, I would be surprised that Trump or any of the Republicans in Congress actually “believed” her spiel. They pretended to believe it, of course, and promoted it, but but most of them knew it was claptrap.
The filing also claims that she still believes she was telling the truth about Dominion. So while it may seem that she’s saying she’s not a reasonable person, what she’s essentially arguing is that no reasonable person could possibly believe the truth.
Wonder how long it will take for it to dawn on all those unreasonable people to realize they’ve been insulted? Or are they too unreasonable to understand they are being treated exactly like fools?
Yep, she’s trying to have it both ways, which isn’t necessarily a bad thing when it comes to convincing those who are inclined to believe her batshit conspiracy theories.
They’ll either dismiss her denials as a necessary legal feint to avoid becoming a victim of the evil establishment, or it’s just another strategic part of the 9-D chess game she and Trump are playing to win back the presidency. Easy peasy.
@anchor 21
I think I’ll point it out on the nextdoor board.
@21: They’ll probably just accept it as part of the liberal conspiracy to make conservatives look bad and claim that she never actually said that.
This is yet more bad lawyering, because it’s an argument being raised at the wrong time in the wrong motion.
This was a motion to dismiss. A motion to dismiss should not be granted unless there is no set of facts provable by the plaintiff (Dominion here) that is consistent with those pled in the complaint — pled in a manner that gives rise to plausibility (again, Dominion‘s statements of fact being plausible) — that could allow any legal remedy in favor of the plaintiff. Instead, Powell’s lawyers try to short-circuit this test by presenting an argument that goes not on a motion to dismiss, not on a later motion for summary judgment, but as an argument to the jury. This is a simple logic issue: Determining that “no reasonable person would believe” requires one of two things: Complete failure to provide any facts or evidence on an issue (not the case here, Dominion’s complaint states facts), or weighing of evidence… and only the jury (or judge in a bench trial) gets to weigh facts.
So Powell’s bad lawyering is compounded by more bad lawyering by the lawyers trying to defend her bad lawyering.
I don’t get your point. It’s clearly not defamation, because you’re not saying anything at all about the company’s actions (calling it a “monstrosity” is not a factual claim), so the questions of whether you harmed its interests or whether a reasonable person might believe you don’t arise. You’re expressing a political opinion about how elections should be run. That’s not to say such a company might not try it on, if you were sufficiently influential as to actually threaten its interests, but any court finding in it’s favour would clearly be corrupt.
This is a fancy “just joking” defense, quite popular amongst right wing white supremacists.
So 74 million adult Americans are unreasonable then? If so, should they be allowed to vote…?
It doesn’t matter.
The only calculation people make is “my team win, inferior people hurt!”
This is a case I’d love to see Popehat address….
A question for any lawyers in the audience: To prevail in a case like this, must the plaintiff prove actual harm or is potential harm sufficient?
F.O.@29,
Speak for yourself.
Some statements are considered “defamation per se“. In a per se case damages need not be proven. However in general defamation cases damages do need to be proven. In Canada asserting that someone is guilty of a felony is defamation per se. I’m not up on US defamation law since it’s so different state to state, but since the statements were made on national media there’s a certain amount of flexibility in terms of where dominion voting systems brings the lawsuit. (This flexibility isn’t infinite, there has to be a so-called nexus, which is typically the state of domicile or the state of incorporation for at least one of the parties, though there are other ways to establish a nexus.)
As a result, I’m imagining that they can make sure they’re filing in a state where defamation per se doesn’t require proving specific damages.
So… the answer to your question depends, but they probably don’t have to prove specific damages since they’ve been accused of a felony (well, multiple felonies, probably).