Sidney’s Powell doctrine

I began my exit from President Trump train asserting that the election was “stolen” from him with a viewing of the Trump legal team’s 90-minute press conference of November 19, 2020. Linking to videos of the press conference, I commented in “A conspiracy so immense” and in “Exit Sidney Powell.” I didn’t understand President Trump’s endgame and failed to complete my exit until January 6 in “A shameful day.”

Among the sequels to this course of events is the defamation lawsuit brought by various Dominion entities against Sidney Powell. The lawsuit is premised on Powell’s allegations implicating the entities in election fraud.

Powell has responded to the lawsuit with a March 22 motion to dismiss in which she asserts, among other arguments, that her allegations did not amount to statements of fact. Rather, her allegations made out constitutionally protected statements of opinion. They weren’t to be taken at face value. Courthouse News Service reports on Powell’s motion and has posted it online here.

In its story on Powell’s motion, CNBC quotes in relevant part from the motion papers (see memorandum at pages 27-36):

“Determining whether a statement is protected involves a two-step inquiry,” Powell’s lawyers wrote in the filing in Washington federal court. “Is the statement one which can be proved true or false? And would reasonable people conclude that the statement is one of fact, in light of its phrasing, context and the circumstances surrounding its publication.”

“Analyzed under these factors … no reasonable person would conclude that the statements were truly statements of fact,” the lawyers argued.

The motion to dismiss included a raft of legal precedent supporting the view that political speech “lies at the core of First Amendment protection.”

“Additionally, in light of all the circumstances surrounding the statements, their context, and the availability of the facts on which the statements were based, it was clear to reasonable persons that Powell’s claims were her opinions and legal theories on a matter of utmost public concern,” the lawyers argued.

I recall hearing from many readers who took Powell’s assertions as statements of fact. Even though I thought she was cracked, I certainly took them as such. Right through the catastrophic Georgia Senate elections Powell played on the credibility she had built up among observers like me with her representation of General Flynn. Now she sounds like Otter in Animal House: “You [screwed] up. You trusted us.”

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