WASHINGTON — Sidney Powell argued Monday that she couldn’t be sued for defamation for repeatedly promoting false conspiracy theories about the 2020 election being rigged because “no reasonable person would” believe that her comments “were truly statements of fact.”
In the months after the election, the Texas-based attorney became one of the most public faces of a campaign to discredit President Joe Biden’s win. Vowing to “release the Kraken,” she pushed the lie that the election was stolen from former president Donald Trump. In numerous TV and public appearances, as well as in court, Powell spread conspiracy theories that two voting equipment companies, Dominion Voting Systems and Smartmatic, were part of a Democrat-backed scheme to “steal” the election by rigging voting systems to flip votes for Trump to Biden, count ballots more than once, and fabricate votes for Biden.
Now facing billion-dollar lawsuits from both companies and having lost all of her court cases challenging the election, Powell is on the defensive. On Monday, her legal team filed a motion to dismiss Dominion’s $1.3 billion-lawsuit, or at least to move it from the federal district court in Washington, DC, to Texas. They argued that the election fraud narrative that Powell had spent months touting as grounds to undo the presidential election was “hyperbole” and political speech entitled to protection under the First Amendment.
Even if Powell’s statements were presentations of fact that could be proven as true or false, her lawyers wrote, “no reasonable person would conclude that the statements were truly statements of fact.”
Powell deflected blame to the Trump supporters who adopted the conspiracy theories and lies that she and other Trump allies pushed and that ultimately fueled the insurrection at the US Capitol on Jan. 6. Her lawyers wrote that she was just presenting her “opinions and legal theories on a matter of utmost public concern,” and that members of the public who were interested were “free” to look at the evidence and make up their own minds or wait to see how the evidence held up in court.
Even as Powell tried to distance herself from responsibility for the conspiracy theories she promoted after the election, she also disputed that the statements at issue were, in fact, false. She argued that Dominion was a “public figure” because of its prominent role in the election process, a status that set the bar higher for proving defamation and meant Dominion had to show that she acted with “actual malice.” Powell’s lawyers argued that Dominion couldn’t meet that standard because “she believed the allegations then and she believes them now.”
Powell’s lawyers argued that her statements were political speech in support of Trump. Quoting from a court decision in an earlier First Amendment case, they wrote that it was a “well recognized principle that political statements are inherently prone to exaggeration and hyperbole.” They said the fact that Dominion had described her comments as “wild” and “outlandish” only supported the notion 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.”
Court filings in many of the criminal cases brought against alleged Jan. 6 rioters feature quotes from defendants who posted on social media about how they “stormed” the Capitol because they believed the election was stolen from Trump. One defendant, Jeffrey Sabol, who is charged with assaulting police at the Capitol, told law enforcement afterward that he “knew that Dominion voting machines were tampered with,” echoing a Powell claim, according to the government’s filings.
Powell’s lawyers also argued that even if the underlying “evidence” she’d relied on was unreliable or false, she was still entitled to First Amendment protection for citing it in the same vein as journalists who reported information that they learned from sources.
“Plaintiffs’ attempts to impugn the various declarations as unreliable, attack the veracity or reliability of various declarants or point to later statements that are arguably inconsistent are beside the point,” Powell’s lawyers wrote. “Lawyers involved in fast-moving litigation concerning matters of transcendent public importance, who rely on sworn declarations, are entitled to no less protection.”
Attorney ethics rules generally bar lawyers from knowingly presenting false information to a court or to an outside party as part of their work on behalf of a client. State officials in Michigan filed an ethics complaint in February against Powell with attorney disciplinary officers in Texas, where Powell is licensed to practice; attorney ethics investigations are typically conducted in secret, and there’s been no public announcement to date about the status of Michigan’s complaint.
Powell’s response to Smartmatic’s defamation lawsuit in state court in Manhattan is due April 8. Smartmatic’s lawsuit also names Fox News, longtime Trump lawyer and ally Rudy Giuliani, and conservative commentators Lou Dobbs, Maria Bartiromo, and Jeanine Pirro as defendants. Dominion has separate lawsuits against Giuliani and Mike Lindell, the My Pillow CEO.