Ah so that’s how they’re going to play it – the “nobody could be stupid enough to believe the lies we told” defense. Bold move.
A key member of the legal team that sought to steal the 2020 election for Donald Trump is defending herself against a billion-dollar defamation lawsuit by arguing that “no reasonable person” could have mistaken her wild claims about election fraud last November as statements of fact.
What were they statements of then? Not fact but…? Fill in the blank [______].
In a motion to dismiss a complaint by the large US-based voting machine company Dominion, lawyers for Sidney Powell argued that elaborate conspiracies she laid out on television and radio last November while simultaneously suing to overturn election results in four states constituted legally protected first amendment speech.
“No reasonable person would conclude that the statements were truly statements of fact,” argued lawyers for Powell, a former federal prosecutor from Texas who caught Trump’s attention through her involvement in the defense of former national security adviser Michael Flynn.
Ok, so they were not truly statements of fact, so they were lies. She’s telling us she tried to help Trump steal the election by telling lies about the voting machines.
But wait, the audience murmurs, they could be mistakes rather than lies. Mere honest mistakes; anyone can make a mistake; mistakes aren’t lies.
True enough, but, there are times and situations and contexts where people are expected to take very good care not to make mistakes of that kind, and indeed there are situations where people have no right to make mistakes of that kind. The situation in which Sidney Powell said these things that no reasonable person would consider true was very much that kind of situation – it’s hard to think of a situation that would be more so. She said the things in order to overturn an election. The stakes don’t get a whole lot higher than that.
Also, if no reasonable person would believe the claims, then Sidney Powell must have not believed them herself. She’s not claiming to be a not-reasonable person, I assume? Could be wrong, but that’s my guess, what with being a lawyer and all. If they’re beyond belief to reasonable people, then they were beyond belief to her, so they weren’t mistakes, they were lies. Lies in pursuit of stealing an election.
Powell falsely stated on television and in legal briefs that Dominion machines ran on technology that could switch votes away from Trump, technology she said had been invented in Venezuela to help steal elections for the late Hugo Chávez.
Knowing, we’re now told, that she was lying. How interesting.
Comments
12 responses to “No reasonable person”
So they were angling for votes from who, the gullible deplorables? Pretty insulting.
No reasonable person would believe that nonsense. But a lot of unreasonable people did. Getting through to reasonable people was never their goal. Are angry mobs full of conspiracy believers reasonable? No. Is there any way in which the manifest unreasonableness of their target audience excuses them from defamation? No.
Not surprised to see this defense raised, but it strikes me as difficult on these facts.
It’s pretty common in defamation cases for the defense to assert that the statements, to the extent they appear to be factual statements and not opinion, were hyperbole, parody, not meant literally, etc. I think Rachel Maddow’s successful defense of a defamation suit recently included an argument along the lines that viewers of her cable show understand that it’s not a 100% news program and that there’s a bit of rhetorical exaggeration sometimes.
Of course Powell is going to have a struggle making such a defense because, as the OP notes, she repeated many of these statements in court filings. Now, the statements in court filings are typically “privileged” (immune from civil liability; I say typically because obviously claims like malicious prosecution exist), so those statements probably aren’t actionable themselves, but they are pretty strong evidence that Powell intended her statements to be construed as fact. In fact, Powell and others repeatedly bragged about how their lawsuits were going to “unleash the kraken,” etc., which pretty clearly implies “I am absolutely serious about these allegations and am predicting to you that they will be proven in court.”
There’s also the fact that Dominion has apparently suffered serious business losses precisely because many many GOP voters ARE taking such allegations as factual assertions. The idea behind the “reasonable person” standard is that we don’t want to dumb down discourse to the point that anything that a few idiots out there might misconstrue subjects you to liability. But if millions of people were so convinced that Dominion stole the election that they are pressuring their election officials to not do business with Dominion, that’s a different kettle of fish. (And no, I don’t expect that any argument to the effect that most GOP voters are not reasonable people would get very far.)
Reminds me of this:
They once interviewed some official at some Big Tobacco company, and asked: “Do you smoke?”
And the official said: “No.” So they said: “But you’ve been so vehement in defending ‘the Right to Smoke, in court cases!”
And he said: “Sure, but we reserve that right for the young, the poor, the black, and the stupid.”
Not to mention that as a lawyer, if she used arguments she knew to be falsehoods to further her and her clients legal and political aims in court filings, that’s sanctionable conduct. She’s already got at least one open sanctions case against her. The response filings in this and the sanctions cases should be fun.
Rob,
Yeah, absolutely. Powell is caught in a bit of a vise there. Her defense to one undermines her defense to the other. That’s why I expect she’ll probably lean more heavily on the theory that “well, I honestly believed it to be true,” because that is viable in both cases.
(Not totally, of course. A plaintiff can satisfy the NYT v. Sullivan standard by showing that the defendant was recklessly indifferent to the truth, and an attorney has a duty to have a reasonable basis for believing factual assertions in a pleading. So “I did no research and ignored contrary data” doesn’t necessarily get you off the hook.)
“and an attorney has a duty to have a reasonable basis for believing factual assertions in a pleading.”
That’s what I was thinking, in not-a-lawyer terms.
Specifically, in federal court, you’re looking at Federal Rule of Civil Procedure 11:
emphasis mine.
For bar discipline purposes, you’re looking at the rules of professional conduct of the relevant state or federal bar, which will vary a bit in wording but more or less the same in substance.
As I’ve said before, I don’t have a ton of confidence that any of the Trump election lawyers will get actual professional discipline, but it’s possible that this stuff was too egregious and too high-profile for state bar committees to ignore.
Dahlia Lithwick said “Yes” on a Facebook friend’s post asking if Powell should be disbarred.
Seems a lot like the exception for puffery. I’m pretty sure I’m not okay with that as a defense of false statements in advertising, so …
A supporter once said to Adlai Stevenson, ‘you have the vote of every thinking American.’
He replied: ‘Sadly, I need a majority.’
(quoting off my head, the actual wording will have differed)
Googled it for you; good memory! So almost exact: