Sidney Powell, President Donald Trump’s former lawyer, filed an eye-popping brief this week that could potentially doom her chances of dismissing a $1.3 billion defamation suit and provide ammunition in a separate lawsuit seeking her disbarment.
Powell, who repeatedly pressed unfounded claims of voter fraud on the airwaves and in court, now says that “reasonable” people would not accept her statements as “fact” because the legal process hadn’t yet played out. It was a stunning admission from a woman who served for a time as one of Trump’s top legal lieutenants.
It could also put her in real legal jeopardy as she fights the defamation suit brought by Dominion Voting Systems – a manufacturer that provides election equipment used by more than 40% of US voters – as well as a motion for sanctions in Michigan as a part of a case she brought there alleging election fraud.
First Amendment expert Ted Boutrous of Gibson Dunn said that the legal implications for Powell could be dire.
“The First Amendment provides strong protections for statements of opinion,” he said. “But what Dominion is pointing to is the fact that Ms. Powell was declaring that she had evidence of this fraud and this election malfeasance and she was declaring that as a matter of fact.”
“The First Amendment doesn’t protect knowingly false statements of fact,” Boutrous added.
In the two cases, both still pending, her lawyers appear to contradict each other. In the defamation case filed by Dominion, her lawyers claim in a motion to dismiss that what Powell said about voting issues could not reasonably be established as fact at the time she said it. In the Michigan case her lawyer calls allegations that she lied “outrageous” and “entirely unacceptable.”
“It’s official, Sidney Powell is a massive fraud – that’s according to Sidney Powell herself,” CNN legal analyst Elie Honig said about the new filing.
Powell responded to reports in a statement issued Wednesday. “The #FakeNews is lying to everyone about our filing” in the Dominion case.
Powell attorney Howard Kleinhendler issued a further comment about the Dominion lawsuit. “First, let me be clear: any suggestion that ‘no reasonable person’ would believe Ms. Powell or her comments on the election is false,” he said. “The language these reports referred to is a legal standard adopted by the courts to determine whether statements qualify as opinions which are exempt from defamation liability.”
Dominion detailed comments that Powell made at press conferences, a political rally and media appearances after she claimed that Dominion had rigged the election.
The company points to claims made by Powell that Dominion manipulated votes, that the company and its software were created in Venezuela to rig elections for Hugo Chavez and that Dominion bribed Georgia’s governor and secretary of state for a no-bid contract in Georgia.
“As a result of the defamatory falsehoods peddled by Powell – in concert with like- minded allies and media outlets who were determined to promote a false preconceived narrative – Dominion’s founder, Dominion’s employees, Georgia’s governor, and Georgia’s secretary of state have been harassed and have received death threats, and Dominion has suffered enormous harm,” the lawyers wrote in the case filed in the US District Court for the District of Columbia.
“Dominion brings this action to set the record straight, to vindicate the company’s rights under civil law, to recover compensatory damages, to seek a narrowly tailored injunction, and to stand up for itself and its employees,” the company said.
In response, Powell’s lawyers pointed to statements she made at a Georgia political rally as an example of hyperbole.
“She claimed that she had evidence that the election result was the ‘greatest crime of the century if not the life of the world,’” they wrote.
“It is a likewise well recognized principle that political statements are inherently prone to exaggeration and hyperbole,” the filing states. And then they added this statement: “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.”
The judge overseeing Dominion’s defamation suit in Washington is still looking at early questions about whether the lawsuit should continue in his court and whether Powell can be sued and isn’t yet considering the legitimacy of Dominion’s allegations that Powell knowingly spread falsehoods about the company.
Dominion has also sued, separately, Trump personal attorney Rudy Giuliani and MyPillow CEO Mike Lindell with similar claims about their public assertions of election fraud after November. Giuliani and Lindell are set to given their initial responses in court next month.
The initial court filing statement stunned David Fink, a lawyer who is asking a federal judge in Michigan on behalf of the city of Detroit to sanction Powell and others for not telling the truth.
Fink wants to “deter future misconduct” and bar Powell from practicing law. He pointed to a federal rule that allows courts to impose sanctions on attorneys who make representations to the court that lack evidentiary support.
“When I read the brief in that case I was shocked that Sidney Powell’s lawyers would admit that no reasonable person would believe the very allegations that she asserted in federal court,” Fink said.
“Those misrepresentations are the reason we are asking the federal court to sanction her,” Fink added. “Powell shows a startling contempt for the basic ethical obligations of our profession, a lawyer incapable of speaking the truth in court filings should surrender her bar card.”
Fink is not sure if he needs to or will bring the defamation filing to the attention of Michigan’s judge who serves on the US District Court for the Eastern District of Michigan. Already he had argued that if sanctions against Powell are not deserved in his case “it is hard to imagine a case where they would be.”
Powell’s co-counsel in the Michigan case, Stefanie Lambert Junttila, called the request for sanctions “baseless” in court papers.
Rule 11, the federal rule at issue, “is not intended to chill an attorney’s enthusiasm or creativity in pursuing factual or legal theories” she wrote, and urged the court to “avoid using the wisdom of hindsight.”
Junttila did not return a call Tuesday night for comment.
Stephen Gillers, a professor of legal ethics at NYU Law, said that Powell is now in a “difficult position.”
“Even opinions can be defamatory if they imply facts that are false and Powell knew it or recklessly disregarded the truth or falsity of the implied facts,” he said.
“Her problem is that her defense in the defamation case is going to sink her in the Michigan case,” he said.
Dana Nessel, Michigan’s attorney general, and a Democrat, told CNN Tuesday night that Powell’s statements and the lawsuits she filed were meant to undermine the election.
“The damage that this individual, this woman had done and her cohorts who filed these cases along with her,” she said, “is untold.”
“And who knows how or when this damage can possibly be undone,” Nessel added.