Sidney “Kraken” Powell Is Back in Court with an Ironic Defense To that $1.3bil Defamation Action

Her followers are not going to like the implications.

One-time Trump “Kraken” Attorney Sidney Powell is back in the headlines for her most recent court filing, and it is eyebrow raising.

Photo courtesy of Axios

Powell is defending against a suit by Dominion Voting Systems for $1.3 billion in damages for her false and defamatory statements about the company during the election and its aftermath. Powell had appeared on Fox News and in press conferences with the Republican National Committee to state that she had evidence of “the greatest crime of the century if not the life of the world,” claiming that the Democrats had “developed a computer system to alter votes electronically.” 

Specifically, she alleged that in 2012 Dominion had helped rig an election in Venezuela, where she said the company originated (it’s a Canadian business). She said in an interview with Newsmax (as reported in American Spectator; Newsmax has since removed the interview from its site) that the founder of Dominion had admitted that “he can change a million votes, no problem at all” (he can’t). She reportedly doctored a certificate from the Georgia Secretary of State and falsely claimed that Dominion was paying kickbacks in exchange for a no-bid contract (it was a competitive selection process according to the Atlanta Journal-Constitution and Dominion had the lowest bid). Due to these and other statements, on top of Trump’s repeated messaging around a stolen election, 76 percent of GOP voters continue to falsely believe that there was widespread fraud in the 2020 election, according to a Quinnipiac poll conducted in February of this year.

Powell, along with others such as MyPillow CEO Mike Lindell, has remained defiant in her public statements about Dominion and the election. But in her court filings, her lawyers sing a very different tune. They moved to dismiss Dominion’s entire defamation case on grounds that no reasonable person could have heard her statements and accepted them as fact. This is what her lawyers argued in their most recent filing:

“Indeed, Plaintiffs themselves characterize the statements at issue as ‘wild accusations’ and ‘outlandish claims.’ They are repeatedly labeled ‘inherently improbable’ and even ‘impossible'...Such characterizations of the allegedly defamatory statements further support Defendants’ position 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.”

This is some thick irony. In scrambling for a viable defense, Powell’s own attorneys have essentially argued that three-quarters of Republican voters are not reasonable people because they did accept these statements as fact. Indeed, even after the courts threw out all of these claims (and Powell was under a legal requirement in the first instance to not file specious claims and facts in the federal courts), these same voters continued to believe what Powell had said and still do to this day.

Before dismissing this defense as nonsensical, it’s important to note this isn’t the first time right-wing defendants have argued that no reasonable person should take them seriously. When Fox News’ Tucker Carlson was accused of slander for statements made on his show, his lawyers urged the court to conclude that no one actually takes as fact what comes out of his mouth. The judge in that case actually agreed, writing in her opinion and citing heavily from the defendant’s briefs that the “‘general tenor’ of the show should then inform a viewer that [Carlson] is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.’” And then this gem: “Fox persuasively argues, that given Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ about the statement he makes.” She ruled that his statements were “non-actionable hyperbole.”

Thus there is a risk, though somewhat small, that a pro-Trump judge might take this Powell defense seriously and sink the entire Dominion suit with it. There are many differences of course between what Tucker Carlson says on his “entertainment” show and actual false and defamatory statements about a company repeatedly made by a lawyer like Powell in press conferences and on the air. Permitting this kind of behavior to go on without consequence would have far-reaching and negative implications for defamation law generally, and in response the lawyers for Dominion no doubt will point this out.

Powell must have followed the mocking coverage about her lawyers’ arguments that “no reasonable people” would ever believe her lies. Turncoats in the cause of the Big Lie are often destroyed by the alt-right, which shifts its loyalties quickly. So Powell took to social media in response, on the right-wing heavy site Telegram, to post to her nearly half million followers: “The #FakeNews is lying to everyone about our filing in the Dominion case. My position has not changed. We will be taking them to the mat.”

So will the Kraken crack? Stay tuned.