Jennifer Rodgers is a former federal prosecutor, Adjunct Professor of Clinical Law at NYU School of Law, Lecturer-in-Law at Columbia Law School, and a CNN legal analyst. The opinions expressed here are her own. Read more opinion at CNN.
(CNN)Sidney Powell, the former Trump lawyer who famously threatened to “release the Kraken” in her quest to overturn the results of the 2020 election, has now formally responded to Dominion Voting Systems’ $1.3 billion defamation lawsuit against her in a way that may surprise some who have followed Powell and her longstanding and vehement commitment to conspiracy theories.
Jennifer RodgersDominion’s legal claim is straightforward: it claims that Powell made numerous statements in the post-election period about the company and its voting machines that were false, that Powell knew were false, and that harmed the company to the tune of hundreds of millions of dollars. There are multiple ways to defend against a defamation lawsuit. The simplest defense is that the allegedly defamatory statements are actually true, and it would not have been a stretch to think that Powell — given her alignment with former President Trump, who still has not admitted that he lost the election — might continue to insist that Dominion’s voting machines fraudulently changed Donald Trump votes into Joe Biden votes. Facing a billion-dollar lawsuit apparently clarifies one’s priorities, however. As Powell and her lawyers should know, there can be little question that Powell’s statements about Dominion were false, because they were and are entirely unsupported by any evidence. Powell makes no attempt to support the statements with evidence in this legal filing, nor did she or others working on behalf of the Trump campaign provide any such plausible evidence during the 60-plus court cases brought in connection with the election. Read MoreTrump's presidency was a disaster for his business Given this utter lack of evidence, Powell was wise to change course. Unfortunately, her new argument won’t fare much better; instead of claiming that her statements were actually true, Powell now argues that she did not defame Dominion because her statements were not factual in nature at all, but instead were merely her opinions.Indeed, Powell goes so far as to say that “reasonable people would not accept such statements as true but (would) view them only as claims that await testing by the courts through the adversary process.” This revisionist history not only is a transparent attempt to avoid the consequences of her actions, but as a legal matter is flat wrong. Opinions are not actionable as defamation because they are statements that are not legally provable or disprovable with evidence. Statements like “President Trump was the better candidate,” or “I don’t trust voting machines” express opinions. Statements that “up to 7 million votes were switched from President Donald Trump to Biden via rigged election software,” or that Dominion is tied to former Venezuelan strongman Hugo Chavez, on the other hand, are factual in nature because they are capable of being proven or disproven with evidence. Factual statements, when false and when made with knowledge or recklessness as to their falsity, can be the basis for a defamation claim. Powell was even put on notice that her statements were contrary to all available evidence and were considered by Dominion to be defamatory when Dominion sent Powell a “cease and desist” letter in December, demanding a public retraction. Powell did not retract her statements; in fact she made additional claims about having evidence of fraud even though courts had already rejected her lawsuits for, among other reasons, failing to provide any evidence of fraud. This underscores yet again the fallacy of Powell’s defense here: a claim for which evidence can exist to prove or disprove the claim is not, by its nature, an opinion at all. There is little question about what Powell and certain of her colleagues were trying to do by spreading these lies. They were not, as Powell now claims, merely offering their own opinions about what may have happened during the 2020 election, and they were not just previewing legitimate lawsuits that had been filed. They were doing everything in their power to convince Trump’s supporters that the election was stolen from him through fraud.Get our free weekly newsletter
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They created and fed the big lie. The big lie harmed Dominion and others who were the subjects of false statements, damaged voters’ confidence in our government and electoral systems, and motivated thousands of Trump supporters to come to the Capitol on January 6 where hundreds of them engaged in a violent insurrection. This — not the mythical Kraken — is what Powell and her cohorts helped unleash. And if this latest filing is any indication, at least as far as harm to Dominion Voting Systems is concerned, it looks like Powell may actually be held accountable.