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Legal Experts Say Dominion’s Defamation Lawsuit Against Sidney Powell Appears to Be ‘Extremely Strong’: ‘It Will Be a Hell of a Ride’


A November 19, 2020 photo shows Sidney Powell speaking during a press conference at the Republican National Committee headquarters in Washington, DC. - US President Donald Trump's personal lawyer Rudy Giuliani and campaign lawyer Jenna Ellis reportedly said that Powell is not a member of the Trump legal team. (Photo by MANDEL NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)

Pro-Trump attorney Sidney Powell was sued for more than a billion dollars by Dominion Voting Systems on Friday morning after spending months issuing consistent post-election conspiracy theories about the company. Legal experts say the defamation case has merit, that Powell’s continued embrace of her claims has weakened her potential defense, and that the overall legal battle should prove to be an interesting test of the intersection between constitutionally protected political rhetoric and the unprotected category of defamatory speech.

Dominion had long threatened to unleash its legal team on Powell and others over the a series of unsupported claims against the election vendor made in various court filings and media appearance. Chief among those decidedly bizarre claims was the accusation that the company was rigging elections because of its alleged willingness to do so for the dead president of the Bolivarian Republic of Venezuela.

Recall: Powell’s claims against Dominion (and its competitor Smartmatic) were made in service of pro-GOP efforts to undo the results of the 2020 presidential election in an unofficial (read: not attached to Trump or the campaign directly) effort to maintain President Donald Trumps hold on the White House. Powell was previously officially on the Trump campaign’s legal team but was unceremoniously let go and left to her own devices after a series of press conferences containing rhetoric deemed too extreme for even the typically bombastic 45th president.

Powell repeatedly asserted the whole cloth claim that the long-dead Hugo Chavez was the impetus for Dominion–and a competitor’s–basic existence. Other less-than-accurate claims made by the so-called “Kraken” lawyers include inflating credentials for an alleged expert witness and reliance on an “error-filled” report that substituted election data from Minnesota for Michigan.

In its 124-page lawsuit, Dominion claims it suffered irreparable damage from the accusations made and promoted by Powell.

“Dominion has been unfairly subjected to the hatred, contempt, and distrust of tens of millions of American voters, and the elected officials who are Dominion’s actual and potential customers have received emails, letters, and calls from their constituents demanding that they avoid contracting with Dominion or using Dominion machines,” the filing alleges. “As a result, elected officials, insurers, and potential investors have been deterred from dealing with Dominion, putting Dominion’s contracts in more than two dozen states and hundreds of counties and municipalities in jeopardy and significantly hampering Dominion’s ability to win new contracts.”

The filing goes on to outline the details of those claimed losses:

Based on Dominion’s historic financial track record, contract pipeline, retention and renewal rates, and new business capture rates, as well as the nature, severity, pervasiveness, and permanence of the viral disinformation campaign, current projections show lost profits of $200 million over the next five years, when reduced to present value. In addition, the viral disinformation campaign has irreparably damaged Dominion’s reputation and destroyed the resale value of a business that was worth between $450 million and $500 million before the viral disinformation campaign.

Filed in federal district court in Washington, D.C., Dominion’s lawsuit claims diversity jurisdiction because it is a Canadian company based in Toronto, Ontario and Powell is “a member of the State Bar of Texas who practices law solely as Sidney Powell, P.C. [who] is domiciled in Texas.”

The filing cites both Georgia and D.C. law and accuses Powell of defamation per se as well as deceptive trade practices under Georgia law. Federal courts operating under diversity claims will adjudicate allegations under the relevant portions of law pleaded from the jurisdictions cited in a plaintiff’s lawsuit.

Under Georgia law, defamation per se encapsulates false statements that are so egregiously harmful on their own that they are actionable just by virtue of having been made in the first place.

Legal experts suggest that Powell could be in for a rude awakening here.

“Defamation cases over political rhetoric are usually weak, because political rhetoric is usually opinion-based rather than fact-based,” First Amendment attorney Ken White told Law&Crime. “This case is notable because Powell and her associates made so many provably false statements of fact that can’t be dismissed as mere hyperbole or political rhetoric. Dominion has spotted their challenge – proving actual malice, that Powell knew the statements were false, notwithstanding her completely crazy demeanor – and is addressing it head-on by arguing that she’s a grifter, not a lunatic. It will be a hell of a ride.”

And the suite of damages she faces could go high into the stratosphere.

Jonathan Schwartz is a partner at Michigan-based Jaffe Raitt Heuer & Weiss, P.C. He analyzed the situation as such:

Dominion appears to have an extremely strong case on the merits, and the potential damages are astronomical. The Complaint filed by Dominion’s attorneys contains brilliant legal analysis and detective work, and frankly is one of the finest I’ve ever seen, both in content and presentation. These defendants, and others who made allegedly unsubstantiated accusations against the company, should be terrified of the consequences and the certainty of expensive multi-year litigation.

Law&Crime previously surveyed the landscape for potential damages when legal action against Powell and her attorneys was merely threatened. Legal experts agreed that privileges afforded to lawyers in most states suggest Powell doesn’t have much to worry about regarding the statements made in her pleadings. Her out-of-court appearances are another question entirely. The pro-Trump attorney’s subsequent media appearances–after being put on notice about the impending legal action–have made the defamation claims an even easier sell.

“The complaint does a good job of alleging that Powell made false statements with the requisite mental state,” Loyola Law School Professor and First Amendment scholar Aaron H. Caplan told Law&Crime in an email.

“Powell’s best defense is that she is immune because the statements were in support of litigation on behalf of a client,” Caplan explained. “However, the complaint adds a new allegation that Powell reiterated her false statements in social media posts that were distributed in response to Dominion’s demand letter. That occurred after all litigation where she was acting as an attorney for a client was over. So that defense looks weaker.”

Dominion, in its lawsuit, also stressed that while they it is now fighting for its own survival, it intends on using the litigation as a teaching moment as well.

Again, from the original petition:

Dominion brings this action to set the record straight, to vindicate the company’s rights under civil law, to recover compensatory and punitive damages, to seek a narrowly tailored injunction, and to stand up for itself and its employees.

Schwartz, a First Amendment and media law attorney, said that the Dominion lawsuit serves a purpose well beyond refuting the claims made against the company.

“At this point, the lawsuit is not only important to Dominion, but also to the American people who have suffered greatly from the ensuing terror caused by baseless attempts to undermine the 2020 election,” he said.

[image via MANDEL NGAN/AFP via Getty Images]

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