Sidney Powell, one of Donald Trump’s former lawyers, is being sued by Dominion Voting Systems for defamation. Her lawyers have entered a truly astonishing defense: that her statements alleging the Democratic Party stole the election using the company’s vote counting software can’t be defamation because no reasonable person would have believed them.
The defense is legally wrong. Her statements were clearly assertions of fact – and they were believed by many members of the public.
Nevertheless, it is a fascinating argument – an acknowledgment that any claim associated with Trump could be considered mere bluster, even when framed in factual terms. In short, Powell’s defense is to throw Trump under the bus. The basic idea: He is such a known liar that any assertion made on his behalf in an election can’t be taken as remotely plausible.
Under U.S. Supreme Court precedent, for statements to count as defamation, they must be susceptible of being proven true or false. Opinion statements are protected by the First Amendment from being made subject to libel law. Political opinion is especially protected.
The brief points out that Powell’s statements were made as part of Trump’s post-election campaign to overturn the result. It insists they were her opinions and legal theories – and, by extension, Trump’s. The brief shows screenshots of Powell on Fox News – as if to suggest that nothing said on Fox could be susceptible of being considered fact.