‘Kraken’ Lawsuits Not Based on Facts

Sidney Powell, the attorney that filed the infamous “kraken” lawsuits in Wisconsin and other states following the 2020 election, is trying to fight a defamation lawsuit filed against her by a company that produces election software and hardware.

Her defense, as argued in a recent motion to dismiss the case, is that it can’t be proven she knowingly pushed baseless conspiracy theories, and furthermore, no “reasonable person” could be expected to interpret her public pronouncements as statements of fact.

Powell is being sued by Dominion Voting Systems, based in Denver, for defamation after she, among other things, accused the company of being tied to former Venezuelan president Hugo Chavez and that it was designed for “computerized ballot stuffing and vote manipulation.”

Powell even included this allegation in lawsuits that she filed in swing states as part of an attempt to overturn the results of the 2020 election.

The company is seeking $1.3 billion in damages, and argues that the allegations made by Powell and other Trump allies were defamatory and would significantly impact their ability to do business.

Powell, represented by attorneys Howard Kleinhendler of New York, Jesse R. Binnall of Virginia and Lawrence J. Joseph of Washington D.C., filed a motion Monday that asked the court to dismiss the lawsuit on several grounds. The first being that the U.S. District Court for the District of Columbia didn’t have standing to hear the case because Powell is a resident of Dallas, Texas. 

On the actual matter of defamation, Powell’s attorneys are seeking to have the case dismissed on grounds that there is precedent for wide-leeway given to political speech, and that regular listeners and readers of public affairs and political debates expect them to be filled with opinions that are not necessarily believable.

When Dominion’s lawyers filed their complaint, they said the allegations and statements made by Powell were “inherently improbable” and “impossible.” Jumping on this, Powell’s legal team argued that, “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.”

Her attorneys argued that “it was clear to reasonable persons that Powell’s claims were her opinions and legal theories on a matter of utmost public concern.” The speech was therefore political and “lies at the core of first amendment protection,” her attorneys contend.

Powell’s defense, as laid out in the motion to dismiss the case, does not rest on the notion that anything she said was true. Rather, her main line of defense is an argument that Dominion cannot prove that Powell didn’t believe the statements when she made them and therefore they can’t prove the statements were made with “actual malice.”

This last part, “actual malice,” is the key legal concept when considering potential cases of defamation and libel being brought by persons or entities a court would consider a “public figure.”

The precedent set by the U.S. Supreme Court’s decision in the famous New York Times Co. v. Sullivan is that “actual malice” must be proven with a higher standard of evidence than a typical civil case, and that it amounts to “knowledge that it was false or with reckless disregard of whether it was false or not,” as Justice William J. Brennan wrote in the majority opinion.

Powell’s legal team argued that there is no way to prove their client knew the statements she made were false. Powell has said that her allegations regarding Dominion’s ties to Chavez and other “foreign oligarchs and dictators” was the result of a sworn affidavit by a former Venezuelan military officer. Also, her attorneys say she did disclose the basis upon which she reached her conclusions. That is, she published a binder of “election fraud evidence.”

Still, there were many refutations of the allegations made by Powell, even by former Attorney General William Barr, and at no time did she retract any of her previous statements. Conservative media outlets like Fox News and Newsmax that entertained the conspiracy theories pushed by figures like Powell eventually issued retractions and apologies.

But Powell’s attorneys insist that “no reasonable person would conclude that the statements were truly statements of fact.”

Read the motion to dismiss here.