Defense strategy for Sidney Powell in Dominion defamation lawsuit not “reasonable”

It was just conjecture. No reasonable person would conclude those allegations were true statements of fact. Besides, in heated political arguments, people tend to exaggerate. You should dismiss the lawsuit or at least move it to my home state.

That’s essentially the defense offered by Sidney Powell’s lawyers to the $1.3 billion defamation lawsuit brought by Denver-based voting Dominion Voting Systems, Inc. Dominion provides voting equipment to more than 1,300 jurisdictions in 28 states including Colorado.

Dominion filed suits against Powell, fellow Trump lawyer Rudy Giuliani and Mike Lindell — the MyPillow CEO — for leveling false accusations against the company which damaged its reputation and endangered employees who received death threats.

After President Donald Trump lost the election, Powell accused Dominion of participating in a vast, international conspiracy to overturn a Trump victory and steal the election. “What we are really dealing with here and uncovering more by the day is the massive influence of communist money through Venezuela, Cuba, and likely China in the interference with our elections here in the United States,” declared Powell in one of many public appearances. “The Dominion Voting Systems, the Smartmatic technology software, and the software that goes in other computerized voting systems here as well, not just Dominion, were created in Venezuela at the direction of Hugo Chavez to make sure he never lost an election after one constitutional referendum came out the way he did not want it to come out.” Dominion employees, according to her theory, rigged machines and “injected votes” for Joe Biden when no one was looking.

Powell promised a powerful “kraken” of a case against Biden’s victory but the evidence proved to be as mythical as a sea monster. The courts dismissed her cases and federal and state officials found no evidence of widespread fraud. Powell and her conspirators are now on the defense.

Powell’s lawyers are using a similar strategy successfully employed by Fox News in a defamation case against the network’s talk show host Tucker Carlson. Karen McDougal sued the network after Carlson accused her of extorting Trump. The former Playboy playmate was paid $150,000 by the National Enquirer’s parent company for her story of an affair with Trump which was never published. Fox News argued that no “reasonable viewer” would accept Tucker’s extortion allegations as fact because of the nature of Tucker’s show. The judge dismissed the case.

There are two problems with the “I was just ranting” defense in Powell’s case. First of all, it’s likely to hurt Powell in a second case she faces in Michigan. The City of Detroit has asked a federal judge to sanction Powell and other Trump lawyers under federal rule 11 that mandates lawyers not bring forth cases “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” Bringing unsupported claims that no “reasonable person” would take seriously before a court surely qualifies as an improper purpose.

Secondly, reasonable people did take her seriously. Many people who showed up at the Capitol on Jan. 6 were not affiliated with QAnon or fringe groups; they were otherwise reasonable, decent people who felt the election had been compromised. They believed and in some cases still believe Powell’s assertions were factual. After all, she claimed that her accusations were true and backed by evidence worthy of a court hearing, facts so powerful they would overturn election results. Mere opinion enjoys substantial First Amendment protection. False statements of fact do not. If someone voices or writes false statements that cause injury they can be held liable for that defamation and required to compensate the victim of their malicious lies.

Krista L. Kafer is a weekly Denver Post columnist. Follow her on Twitter: @kristakafer.

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