When an attorney’s defense against accusations of lying is that everybody should have suspected she was lying in the first place, that attorney probably should stop practicing law.
Sidney Powell, the Trump lawyer, became infamous for promising she would “release the Kraken” in lawsuits supposedly proving that massive election fraud had occurred. Her bizarrely unfounded claims were repeatedly rejected by courts across the country, including the Supreme Court.
Now, she faces a massive defamation lawsuit filed by Dominion Voting Systems, which she repeatedly alleged had been designed to help the communist Venezuelan government commit massive vote fraud — and which, by extension, had been used to enable similar fraud against former President Donald Trump.
Ordinarily, the defense against defamation is either that the statements in question are true or that the one making the statement believed them to be true when they were made. Yet, in a motion to dismiss the suit, Powell and her attorneys go beyond those defenses. Yes, they still say (without providing serious evidence) that Powell believes her claims were at least essentially true and that they were made without “actual malice” (another legal standard) against Dominion. But they also write that the anti-Dominion allegations amounted to “hyperbole” common to a political context.
Then comes this howler: “that reasonable people would not accept such statements as fact.” This is her defense of her own statements — that no one would believe them!
To be fair, Powell’s brief is not an admission that her claims weren’t factual or that they were unreasonable, per se. Instead, she argues that reasonable people would accept them as mere allegations, or as Powell’s “own interpretation of those facts,” but that the interpretation “awaits testing by the courts through the adversary process.” In other words, because in politics it is fair game for public statements to be “vituperative, abusive, and inexact,” it is therefore OK to make rather “wild allegations” against a participant in the political process.
Setting aside the fact that Dominion was not a candidate or an opponent but a service provider, and thus not usually or properly subject to vituperative hyperbole, what Powell’s team is asserting is manifestly unethical even if not illegal. It essentially is saying that because all politicians lie, it is OK for the politicians’ lawyers to exaggerate to the point of lying, even at the risk of unfairly harming the reputation of an apolitical, independent vendor.
In other words, because “reasonable people” should know politics is just a game, no real harm is done when people say crazy things because ordinary folks “would not accept such statements as fact” anyway. This comes close to saying that otherwise defamatory statements, no matter how outlandish or reputationally harmful, are not defamation if they are made in a political context.
As a First Amendment matter, perhaps that argument will prove legally correct. Ethically, it is rotten to the very core.
