Dominion Hammer Finally Drops on the Kraken

Sidney Powell, of Kraken fame, was sued for defamation by Dominion for $1.3 billion dollars. I wrote before why a defamation suit against her would be particularly robust given the facts and circumstances. She has recently filed a response to the lawsuit, through her attorney Lawrence Joseph (previously also involved in drafting Texas' SCOTUS lawsuit to overturn the election results). You can read Powell's response in full here.

Joseph is her attorney, and it's inconceivable that he would submit arguments without her assent. Further, given his involvement with the Texas lawsuit, he appears to be at least sympathetic to the election fraud hypothesis, and perhaps also a true believer. The response is 90 pages long so I'll just highlight a few things.

The main defense she's offering is that she was being intentionally hyperbolic and dramatic for political purposes, and that no reasonable person would actually believe she was speaking literally. To support that argument, she cites that even Dominion thought her claims were outlandish. From Pg 46 (cleaned up citations):

Reasonable people understand that the “language of the political arena, like the language used in labor disputes … is often vituperative, abusive and inexact.” It is likewise a “well recognized principle that political statements are inherently prone to exaggeration and hyperbole.” Given the highly charged and political context of the statements, it is clear that Powell was describing the facts on which she based the lawsuits she filed in support of President Trump. Indeed, Plaintiffs themselves characterize the statements at issue as “wild accusations” and “outlandish claims.” They are repeatedly labelled “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.

Notably, she doesn't try to argue that there can't be defamation because her claims were true, which would be the simplest way to fight off a defamation lawsuit. Instead, she appears to be straddling a tightrope. Basically she's leaning on the likely fact that Dominion will be considered a "public figure", which means that "actual malice" would need to be established in this case on the part of Powell. Her argument basically boils down to showcasing a lack of actual malice and her lawyer does so by claiming Powell still believes her allegations. Pg 51:

It alleges no facts which, if proven by clear and convincing evidence, would show that Sidney Powell knew her statements were false (assuming that they were indeed false, which Defendants dispute). Nor have Plaintiffs alleged any facts showing that Powell “in fact entertained serious doubts as to the truth of h[er] publication.” In fact, she believed the allegations then and she believes them now.

Further, Powell also wants to argue that she can't really be held responsible for just repeating what her sources tell her, even if what the sources claim was totally false. She uses a comparison to journalists relying on anonymous sources. Pg 50:

Journalists must be free to rely on sources they deem to be credible, without being second-guessed by irate public figures who believe that the journalists should have been more skeptical. Lawyers involved in fast-moving litigation concerning matters of transcendent public importance, who rely on sworn declarations, are entitled to no less protection.

Sidney Powell is claiming that the media is mischaracterizing her lawsuit response and claims that her position has not changed. She's claiming that her reliance on specific legal vocabulary in her response is being misunderstood by the media:

Yesterday, several news media outlets cut and paste out of context portions of our motion to dismiss the Dominion complaint to “spin” a message that the election fraud allegations that Ms. Powell presented to various courts and to the public were not credible. I’d like to clarify what actually was presented to the court. First, let me be clear: any suggestion that “no reasonable person” would believe Ms. Powell or her comments on the election is false. The language these reports referred to is a legal standard adopted by the courts to determine whether statements qualify as opinions which are exempt from defamation liability.

My impression: The response to the defamation lawsuit appears to be an earnest and serious attempt to address the litigation. It's being taken seriously and, as far as I can tell, competently by Joseph. But in doing so, Powell necessarily has to adopt a tack different from the confident and dramatic accusations she levied against Dominion. Her combative approach last fall garnered her a lot of praise from Trump and his followers, and was extremely financially lucrative for her efforts. But now that there is a very real cost to her claims, she's wants to walk a tightrope act where she simultaneously wants to claim that her claims were so ridiculous that no reasonable person would believe them, and they were political bluster anyways, and even so she was just relaying what her sources told her, and also she can't be acting with malice if she still believes her allegations.

I believe you can ascertain how earnest a claim is when you see how quickly it gets abandoned in response to cost. See for example how quickly people like Lou Dobbs and American Thinker capitulated when they received defamation letters from Dominion Voting Systems, and see especially the now infamous Mike Lindell Newsmax incident which unraveled in real time. Mike Lindell, however, seems to be a true believer, as he's expressed no inclination to stop with his claims, going as far as producing and airing a 3 hour documentary on OANN which aired it with "paid programming and opinion only" as a disclaimer.

Powell has repeatedly claimed to have groundbreaking evidence. The easiest way to fight off the defamation lawsuit would have been to use this opportunity the showcase the overwhelming evidence she repeatedly claimed exists. She doesn't. That leads me to think she never had any good evidence of her claims of election fraud, but she still has conned potentially millions of people in the process.