Sidney Powell Argues in Court Motion that she's clearly just full of it

[Mr._Clark]

It will be interesting to see if the "I'm not legally liable for the lies I spew because it's blatantly obvious that I'm full of sh*t" defense works for Powell. It worked for Tucker Carlson, but this strikes me as a more difficult argument for Powell. She was an attorney making out of court statements, not a TV show host with a long track record of ridiculous statements. In other words, Carlson arguably makes ridiculous statements because he is an entertainer and it draws viewers. Powell's defense is basically "I'm an idiot and everyone knows it." (I'd concede that there is a grain of truth to this)

>>>In a motion submitted in federal district court in D.C. on Monday, Powell argued through her attorneys that the case should be dismissed because it was filed in the wrong jurisdiction and that the claims she made about Dominion were protected under the First Amendment.

Her attorneys argued 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."<<<

Sidney Powell seeks dismissal of Dominion’s $1.3B suit

Sidney Powell, the conservative legal firebrand who helped spearhead President Trump’s court challenges to his 2020 defeat, is seeking to throw out a $1.3 billion defamation lawsuit against h…

thehill.com

Nixing Libel Suit, Judge Says No One Expected Facts From ‘Bloviating’ Tucker Carlson

Calling it clear that Fox viewers aren’t listening to Tucker Carlson for facts but for entertainment, a Trump-appointed federal judge threw out defamation claims from a former Playboy model who claims she had a 10-month affair in 2006 with the current president.

www.courthousenews.com

 

[panteragstk]

It will be interesting to see if the "I'm not legally liable for the lies I spew because it's blatantly obvious that I'm full of sh*t" defense works for Powell. It worked for Tucker Carlson, but this strikes me as a more difficult argument for Powell. She was an attorney making out of court statements, not a TV show host with a long track record of ridiculous statements. In other words, Carlson arguably makes ridiculous statements because he is an entertainer and it draws viewers. Powell's defense is basically "I'm an idiot and everyone knows it." (I'd concede that there is a grain of truth to this)

>>>In a motion submitted in federal district court in D.C. on Monday, Powell argued through her attorneys that the case should be dismissed because it was filed in the wrong jurisdiction and that the claims she made about Dominion were protected under the First Amendment.

Her attorneys argued 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."<<<

Sidney Powell seeks dismissal of Dominion’s $1.3B suit

Sidney Powell, the conservative legal firebrand who helped spearhead President Trump’s court challenges to his 2020 defeat, is seeking to throw out a $1.3 billion defamation lawsuit against h…

thehill.com

Nixing Libel Suit, Judge Says No One Expected Facts From ‘Bloviating’ Tucker Carlson

Calling it clear that Fox viewers aren’t listening to Tucker Carlson for facts but for entertainment, a Trump-appointed federal judge threw out defamation claims from a former Playboy model who claims she had a 10-month affair in 2006 with the current president.

www.courthousenews.com

Isn't that just straight up admitting guilt? I don't see how any judge could get an argument of "I'm too stupid to understand what the consequences of my actions are" as any sort of defense and think anything other than "oh, well you just made my job easy".

Granted, we live in bizarro land where what should happen doesn't.

 

[lovinthehd]

Any different from all the lost memories these guys have on the witness stands too?

 

[GO-NAD!]

It will be interesting to see if the "I'm not legally liable for the lies I spew because it's blatantly obvious that I'm full of sh*t" defense works for Powell. It worked for Tucker Carlson, but this strikes me as a more difficult argument for Powell. She was an attorney making out of court statements, not a TV show host with a long track record of ridiculous statements. In other words, Carlson arguably makes ridiculous statements because he is an entertainer and it draws viewers. Powell's defense is basically "I'm an idiot and everyone knows it." (I'd concede that there is a grain of truth to this)

>>>In a motion submitted in federal district court in D.C. on Monday, Powell argued through her attorneys that the case should be dismissed because it was filed in the wrong jurisdiction and that the claims she made about Dominion were protected under the First Amendment.

Her attorneys argued 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."<<<

Sidney Powell seeks dismissal of Dominion’s $1.3B suit

Sidney Powell, the conservative legal firebrand who helped spearhead President Trump’s court challenges to his 2020 defeat, is seeking to throw out a $1.3 billion defamation lawsuit against h…

thehill.com

Nixing Libel Suit, Judge Says No One Expected Facts From ‘Bloviating’ Tucker Carlson

Calling it clear that Fox viewers aren’t listening to Tucker Carlson for facts but for entertainment, a Trump-appointed federal judge threw out defamation claims from a former Playboy model who claims she had a 10-month affair in 2006 with the current president.

www.courthousenews.com

So, defamation is protected free speech. Interesting.

 

[Mr._Clark]

Isn't that just straight up admitting guilt? I don't see how any judge could get an argument of "I'm too stupid to understand what the consequences of my actions are" as any sort of defense and think anything other than "oh, well you just made my job easy".

Granted, we live in bizarro land where what should happen doesn't.

Keep in mind that this is a civil proceeding, not a criminal action ("guilt" is normally associated with criminal actions, not civil liability).

I'll confess that I distorted the arguments made by Powell's lawyers. In my defense, I hereby assert that her reputation is incapable of being damaged because it is already complete crap (that's intended to be a joke).

All seriousness aside, one of the elements a plaintiff must show in a defamation action is a false statement purporting to be fact. However, various court decisions have limited this on first amendment grounds.

In Powell's case, her lawyers are arguing that Colorado law applies, and that under Colorado law a statement must be capable of being shown to be true or false, and a statement is protected if reasonable people would conclude the statement is not one of fact. In making the determination, the wording of the statement, the context of the statement, and the circumstances surrounding the statement are considered. Another factor is if the underlying facts have already been disclosed. The basic idea is that if a person makes an outrageous statement about an event and the historical facts are already known, a person hearing the statement would know that the outrageous statement is opinion, not a statement purporting to be fact (I'm paraphrasing the arguments in the memo by Powell's lawyers, I'm sure this is not a complete, unbiased statement of the law).

Powell's lawyers also argued that for matters of public concern, the plaintiff must show actual malice (i.e. knowledge that the statement was false or with reckless disregard concerning the truth of the statement). In other words, for matters of public concern, the plaintiff must show an additional element concerning the mental state of the defendant.

Powell's lawyers are arguing (in so many words) that her statements in the context of an election were political and a person hearing the statements would not think the statements were "truly statements of fact." This is basically an argument that Dominion hasn't alleged facts sufficient to prove the basic elements of a defamation action (I think of this as the Homer Simpson defense)(no one would think Homer Simpson asserts actual facts).

Her lawyers also argued that her statements were based on declarations by others in the court filings. Thus, Powell's lawyers argue that Dominion can't prove she knew her statements were false. This argument only applies if Powell's lawyers are able to convince the court this is a public matter.

Editorial comment: It will be interesting to see if Powell gets hit with ethics charges. ABA Model Rule 4.1 states:

Rule 4.1: Truthfulness in Statements to Others
Transactions With Persons Other Than Clients
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Rule 4.1: Truthfulness in Statements to Others

Transactions With Persons Other Than Clients | In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a...

www.americanbar.org

I believe she's a member of the State Bar of Texas, which has adopted a version of ABA Model Rule 4.1 (Texas Rule 4.01 is almost identical to the Model Rule, but it does not include the phrase "unless disclosure is prohibited by Rule 1.6"). The comments to the Texas rules state that opinions and matters of conjecture are not normally considered to be statements of material fact.

I'm not an ethics expert by any means, but on the face of it I doubt that a grievance committee would give much weight to First Amendment arguments. In the defamation action, Powell's lawyers implicitly argued that the same standards (based on First Amendment issues) that apply to news outlets should apply to Powell.

 

[Mr._Clark]

For what it's worth, there have actually been libel cases that were lost on the basis that the plaintiff's reputation could not be harmed because it was so bad to begin with. What's interesting about some of these cases is that the plaintiff proves all of the basic elements a libel case, but loses on damages.

A famous example is the Guccione v. Hustler lawsuit:

>>WASHINGTON (AP) _ The Supreme Court today refused to reinstate a $1.6 million libel award won, and then lost, by Penthouse magazine publisher Robert Guccione against rival Hustler magazine.

The justices, without comment, let stand a ruling that Guccione is ″libel proof″ - his reputation cannot be worsened - on the subject of adultery. Guccione and Hustler publisher Larry Flynt for years have been conducting what one federal court called a ″grudge match.″

Guccione sued Hustler and the Flynt Distributing Co. over a 1983 article in which Hustler poked fun at Guccione’s penchant for having himself photographed with nude models. ″Considering he is married and also has a live-in girlfriend, Kathy Keeton, we wonder if he would let either of them pose nude with a man,″ the Hustler article said.

Guccione’s lawsuit, filed in federal court in New York City, alleged he was defamed because he falsely had been accused of adultery, a crime in New York.

In fact, Guccione had lived with Ms. Keeton for 13 years while still married to Muriel Guccione, from 1966 to 1979. He was divorced in 1979.<<

Supreme Court Refuses to Reinstate Libel Judgment Against Hustler

WASHINGTON (AP) _ The Supreme Court today refused to reinstate a $1.6 million libel award won, and then lost, by Penthouse magazine publisher Robert Guccione against rival Hustler magazine.

apnews.com

 

[ryanosaur]

Strangely, I think just just gave every court adequate reason to seek her permanent disbarment for frivolous lawsuits and misleading and untruthful statements in court documents.

 

[davidscott]

I guess this will give Rudy an avenue to pursue to contest his lawsuits...

 

[Mr._Clark]

Strangely, I think just just gave every court adequate reason to seek her permanent disbarment for frivolous lawsuits and misleading and untruthful statements in court documents.

It seems to me that a major problem with her defense strategy is that it begs the question: If no reasonable person would think she was stating facts, why was she making the statements in the first place? She certainly didn't announce during her various news appearances that she was there because she wanted to discuss fairy tales that had nothing to do with reality. It's pretty clear on the face of it that she thought at last some people would believe her and she was trying to influence public perception.

 

[ryanosaur]

It seems to me that a major problem with her defense strategy is that it begs the question: If no reasonable person would think she was stating facts, why was she making the statements in the first place? She certainly didn't announce during her various news appearances that she was there because she wanted to discuss fairy tales that had nothing to do with reality. It's pretty clear on the face of it that she thought at last some people would believe her and she was trying to influence public perception.

And as I understand it, this is a catch-22, because that very description is exactly what lawyers are not supposed to do, which would disqualify her from practicing law if held to the rules.
SMDH

 

[panteragstk]

Why is it that so many in the GOP say that the things they say shouldn't be taken seriously? Shouldn't that statement ALSO not be taken seriously?

 

[lovinthehd]

Why is it that so many in the GOP say that the things they say shouldn't be taken seriously? Shouldn't that statement ALSO not be taken seriously?

Just saw a bit on youtube stating a survey of republicans found 33% believe the republican members of congress voted for the Biden relief bill.....

 

[panteragstk]

Just saw a bit on youtube stating a survey of republicans found 33% believe the republican members of congress voted for the Biden relief bill.....

It is utterly baffling to me that they refuse to just look up actual facts to support their beliefs, but no. Blindly just assuming the people feeding them this nonsense aren't full of sh!t.

 

[Trell]

It is utterly baffling to me that they refuse to just look up actual facts to support their beliefs, but no. Blindly just assuming the people feeding them this nonsense aren't full of sh!t.

The evolution of mankind has it's ups and downs.

Edit: Spelling

 

[Mr._Clark]

And as I understand it, this is a catch-22, because that very description is exactly what lawyers are not supposed to do, which would disqualify her from practicing law if held to the rules.
SMDH

There's an article on CNN (link below) discussing the interplay between the defense in the Dominion defamation case and the ethics cases.

The ethics complaint in Michigan alleges violation of Texas bar rules 3.01, 3.02, and 3.03 relating to court filings and Rule 8.04(3) which prohibits conduct involving dishonesty, fraud or deceit. Although Rule 8.04 is not limited to actions before a tribunal, but the Michigan ethics complaint focuses almost completely on Powell's court filings. The Dominion defamation lawsuit is based almost entirely on the out of court media statements by Powell. The statements and filings in court and the statements out of court are different factually, and the legal requirements for an ethics complaint and the requirements for a defamation action are also different. For the most part, Trump's lawyers were fairly careful about what they filed in court even though they said all sorts of crazy stuff out of court. They were clearly aware of the ethics issues concerning representations to the court.

The Dominion complaint recites numerous media statements by Powell and alleges that these statements are false, but the complaint also states "Dominion is not currently suing Powell based on the false statements in Powell's sham litigations." In order to prevail in the defamation lawsuit (on the theory in the recent motion to dismiss), she needs to show that her statements to the media (which are not identical to the evidence filed in court) would be perceived as being opinion, not statements of literal fact.

The main problem for Powell, in my opinion, is that the defense in the defamation lawsuit is perilously close to an admission that she violated Rule 8.04(3), even though the Michigan complaint does not mention Powell's statements to the media.

My general impression is that Powell was more worried about the defamation lawsuit than the ethics complaint and went for broke in the defamation lawsuit. She probably figures that if she gets disbarred it's not the end of the world because she's 65 and she can probably make plenty of money selling all sorts of garbage, but a $1.3 billion award in the Dominion lawsuit would undoubtedly cramp her style.

It wouldn't surprise me if: 1) the ethics complaint is modified to allege that the statements to the media violated Rule 8.04 and to include Rule 4.01 violations; and possibly 2) the Dominion complaint is amended to include allegations that the statements in court were false. I'm not 100% sure Dominion would have a basis to amend the complaint (I'm not sure Dominion has standing because I'm not sure Dominion was a party to the lawsuits filed by Powell)(and I don't feel like digging up the information right now).

The main thing that bothers me about Powell is that she leveraged frivolous lawsuits that mostly didn't even allege facts sufficient to change the outcome of the election into numerous media appearances in which she blew the court cases way out of proportion and made every effort to undermine confidence in our democratic system. I view her as being an opportunistic, lying traitor to the principles of our country. Pure scum.


>>>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." . . .

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.<<<

Sidney Powell's defense in defamation suit could put her in legal jeopardy

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.

www.cnn.com

 

[Swerd]

Perhaps Sidney Powell could apply to practice law in Texas.

Why hold back, why not run for office in Texas?

 

[Mr._Clark]

Powell's allegations about Dominion are absurd, but there have been legitimate concerns about voting security.

>>>A recent revelation in the Mueller report, though, indicated that even this project still has a way to go. The report revealed that during the 2016 presidential election, Russian hackers breached two supervisory election networks in Florida precincts. The intrusions didn’t result in data or vote manipulation, but many Florida officials and other top voting officials around the country were unaware of the incident, and were shocked that it hadn't come to light for nearly three years.<<<

Election Security Is Still Hurting at Every Level

With the 2020 election fast approaching, too many problems from 2016 persist.

www.wired.com

Strategies to secure American elections

Stanford scholars outline a detailed strategy for how to protect the integrity of American elections – including recommendations such as requiring a paper trail of every vote cast and publishing information about a campaign’s connections with foreign nationals.

news.stanford.edu

America’s Electronic Voting Machines Are Sitting Ducks

They are old, buggy, and insecure. If someone wanted to mess with the US election, these machines would be an easy way in.

www.wired.com

How to Hack an Election in 7 Minutes

With Russia already meddling in 2016, a ragtag group of obsessive tech experts is warning that stealing the ultimate prize—victory on Nov. 8—would be child’s play.

www.politico.com

 

[panteragstk]

Perhaps Sidney Powell could apply to practice law in Texas.

Why hold back, why not run for office in Texas?

 

[Mr._Clark]

My prior post mucked things up a bit because I was referring to the ethics complaints filed by Whitmer with the Attorney Grievance Commission of the State of Michigan and the State Bar of Texas (first link below) based on the King v. Whitmer case (which also named Detroit as a defendant), whereas David Fink (one of the lawyers quoted in the CNN article) filed a motion in Federal Court on behalf of the city of Detroit (second link below) asking for 1) Rule 11 sanctions (third link below) by the court, and 2) a referral to a state disciplinary authority by the court for ethics violations. Whitmer also filed a motion in Federal Court asking for sanctions and attorney's fees pursuant to 28 U.S.C. Section 1927 (fourth link below)(The section 1927 motion requests a relatively modest award of attorney's fees)

Rule 11 sanctions are decided by the federal court in which a lawsuit was filed based on the litigation conduct in the lawsuit. Ethics charges are normally decided by the state bar entity having authority in a given state. A federal court can refer an ethics matter to a state bar or it can bar an attorney from that Federal Court, but the Federal Court does not have jurisdiction to revoke a state law license for ethics violations (having said that, I would not want to be on the receiving end of an ethics referral from a Federal Judge).

In it's motion, Detroit argued: “While the First Amendment may protect the right of political fanatics to spew their lies and unhinged conspiracy theories, it does not grant anyone a license to abuse our courts for purposes which are antithetical to our democracy and to our judicial system.” In a sense, Powell's lawyers are arguing this exact point (everything before "it does not") in the Dominion defamation case (i.e. they are arguing in the Dominion case that her statements to the media are protected by the First Amendment). However, the Rule 11 motion argues extensively that the federal lawsuit was an abuse of the courts as evidenced by both the court filings and the out of court statements, and this should result in Rule 11 sanctions (Rule 11 sanctions are extremely serious, and reasonable lawyers are careful about filing them in view of the severe consequences that can result from a successful motion).

The Rule 11 motion puts the judge in a somewhat awkward position. Judges generally look at what's filed in court and decide the issues on the merits. It's a fairly narrow role, and they generally try to avoid going beyond this into political issues outside of what's actually filed in court. However, the judge in the King v. Whitmer case is clearly aware that the lawsuit was a frivolous tail wagging a major misinformation effort intended to disrupt the election process. The quandary is that that if she imposes sanctions she inserts the court into a political matter (at least to some extent), but if she does nothing she has let Powell and her krack(en) head buddies use the court filings to advance a fraud on the election system and laws without paying a price (sending a signal to future krack(en) heads not to try this stunt). This is of course just my opinion.

Michigan Gov. Gretchen Whitmer filed a bar complaint against Sidney Powell, asking that she be stripped of her law license

The pro-Trump lawyer asked federal judges to throw out Michigan's votes based on a conspiracy theory that involved Hugo Chavez.

www.businessinsider.com

Election lawyers say they can't be sanctioned if they signed documents in typewritten form

Lawyers opposing Detroit’s bid for sanctions in Michigan election litigation argue that they can’t be held accountable if they signed the pleadings in typewritten form.

www.abajournal.com

Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

www.law.cornell.edu

404

www.michigan.gov

Rule 11 Sanctions Are Not Fit for Every Occasion

There’s a time and a place for everything.

www.americanbar.org

 

[GO-NAD!]

Dominion Voting Systems sues Fox News for $1.6B for false election claims | CBC News

I'm not a lawyer - and I did not stay at a Holiday Inn last night - so I can't offer any expert opinion, but I wonder if there would be any benefit to suing Fox in Canada. Dominion Voting Systems was founded in Toronto, where its international headquarters is located, and Fox News is broadcast here, so the same BS was spewed north of the border. Defamation and libel laws are generally tilted more in favour of plaintiffs (no requirement to prove malicious intent, for example) here than in the US.