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Opinion Sidney Powell will never live down her no-reasonable-person defense

Sidney Powell speaks at a news conference in Washington on Nov. 19, 2020. (Sarah Silbiger/For The Washington Post)

Sidney Powell said a lot of things in the weeks following Joe Biden’s victory in the 2020 presidential election. A lawyer assisting the Trump campaign, Powell embarked on a media tour to spread the harmful falsehood that Trump had won the election, claiming massive voter fraud across multiple states and an international communist plot to rig the result. Another allegation on the tour was this: “There’s thousands of people in federal prison on far less evidence of criminal conduct than we have already against the Smartmatic and Dominion Systems companies,” Powell said on the Nov. 19, 2020, edition of “Lou Dobbs Tonight” on Fox Business.

That smear earned Powell a defamation suit in a federal D.C. court from Dominion Voting Systems, a company that in 2020 had contracts to provide voting systems and services to 28 states and Puerto Rico.

And now for the irony moment: Powell is now saying that her comment about “criminal conduct” wasn’t the dead-serious expression of fact that it surely appeared to Fox Business viewers. “No reasonable person would conclude that the statements were truly statements of fact,” writes her attorney Lawrence Joseph in a motion to dismiss the case against Powell.

As it turns out, lawyers for Fox News made pretty much the same argument in defending host Tucker Carlson after he slimed former Playboy model Karen McDougal in 2019. “Fox persuasively argues … that given Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ about the statements he makes,” concluded the judge in a September 2020 ruling.

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There’s a risk-reward calculus in advancing the don’t-take-me-seriously defense in a defamation suit. Sure — it may get you out of a legal bind. But there’s reputational peril lurking in the long term. Ever since the judge’s ruling in the Carlson-McDougal clash, commentators on social media, cable news and elsewhere have had a field day mocking the network’s defense of Carlson. “We should point out that Fox successfully defended Carlson in a slander lawsuit saying viewers shouldn’t believe what he says. That’s right, his own network said he’s full of it,” said CNN’s Brianna Keilar in February.

All of which is to say, Powell’s use of this defense suggests she was desperate to defend herself against her own irresponsible commentary. That’s not surprising, considering how much of it she left on the public record: The complaint against her clocks in at 124 pages, not on account of the wordiness of Dominion’s lawyer, Tom Clare, but rather on account of all the lying media appearances — and tweets — that Powell racked up in service to Trump’s authoritarian crusade. The complaint’s inventory begins at Nov. 8 — when Powell appeared on Fox News to say that Dominion was “flipping votes in the computer system or adding votes that did not exist.” It winds up at Jan. 4, when Powell posted to her own website a document titled, “SUMMARY: SELECT EVIDENCE OF PRESIDENTIAL ELECTION FRAUD 2020.”

In all, Dominion’s complaint includes 45 pages breaking down Powell’s utterances on TV, radio/podcasts and social media, which include Fox News, Fox Business, Newsmax and many others. In a Dec. 29 appearance on the Rush Limbaugh Show Podcast, Powell said, “The flipping of votes by Dominion is even advertised in their ability to do that — to run a fraction, to make a Biden vote count 1.26 percent and a Trump vote to only count 0.74 [percent]. They’ve done it before, they’ve done it in Venezuela, they’ve done it in other foreign countries, they’ve done it in this country.”

According to the complaint, Powell made the “1.26” allegations in other appearances as well — and that’s just one of the places where she undercuts her very own defense. In the motion to dismiss, Powell’s motion, citing precedent, argues that “reasonable people understand that the ‘language of the political arena, like the language used in labor disputes … is often vituperative, abusive and inexact.’” Except that “1.26” is hardly inexact. Powell’s motion also pointed to the “well recognized principle that political statements are inherently prone to exaggeration and hyperbole.” Except that “1.26” isn’t exaggeration or hyperbole. Powell’s motion also says that “reasonable people” would view her statements “only as claims that await testing by the courts through the adversary process.” Except that “1.26” sounds as if it had already completed the “adversary process.”

A great deal of civic exertion will be required to hold accountable all those who advanced the “Big Lie.” Powell is a leader of that group, and Dominion’s lawsuit has put her face to face with the horror of her own words. With her risible legal defense, she’s now squirming, backtracking and deflecting — a posture that her media enablers may be assuming soon enough.

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