The Simplest Refutation

Flash forward: sued by Dominion Voting Systems for defamation for her myriad lies (as shared below by RNC), Powell now claims in court that "reasonable people would not accept such statements as fact..." https://t.co/fcYvacqEHC

— Jake Tapper (@jaketapper) March 24, 2021

...to Powell's Motion to Dismiss is in the plaintiff's original Complaint:

From November 8 to December 14—Powell, acting in concert with like-minded allies in the media, appeared on Fox Business, The Epoch Times, the Washington Examiner’s podcast Examining Politics, and The John Fredericks Show to solicit donations to her fundraising website and to peddle the falsehood that Dominion was created in Venezuela to rig elections for Hugo Chávez, and had in fact rigged the 2020 U.S. Presidential Election by using “algorithms” in its machines to change the ballots and to “flip” and “shave” votes.33

Is that "hyperbole" or "legal opinion"?  I have to admit, it doesn't sound like either one.

This, by the way, is footnote 33:

Sidney Powell talks about her allegations regarding the computerized voting systems on election night, Washington Examiner (Nov. 20, 2020), available at, https://www.washingtonexaminer.com/videos/sidney-powell-talks-about-her-allegations- regarding-the-computerized-voting-systems-on-election-night (Ex. 5) (last visited Jan. 4, 2021); Sidney Powell on Lou Dobbs Tonight on 11/30/20, YouTube (Nov. 30, 2020), available at, https://www.youtube.com/watch?v=4uMr-TRZNCw (Ex. 6) (last visited Jan. 4, 2021); Sidney Powell to Newsmax TV: Our Case Was Prejudged, Newsmax (Dec. 7, 2020), available at, https://defendingtherepublic.org/?p=1166; https://www.newsmax.com/newsmax-tv/sidney- powell-kraken-lawsuit-scotus/2020/12/07/id/1000459/ (last visited Jan. 4, 2021) (Ex. 26); Evidence of Fraud: Sidney Powell and Lou Dobbs discuss, Fox Business (Dec. 10, 2020), available at, https://defendingtherepublic.org/?p=1168; https://video.fo xbusiness.com/v/6215520845001/#sp=show-clips (last visited Jan. 4, 2021) (Ex. 27); Sidney Powell on 2020 Election Lawsuits, Supreme Court Decision, and the Flynn Case, https://www.theepochtimes.com/exclusive-sidney-powell-on-election-lawsuits-supreme-court- decision-and-the-flynn-case_3617067.html (last visited Jan. 4, 2021) (Ex. 28); Sidney Powell: Kraken Released in MI; Scotus Next!, The John Fredericks Show (Dec. 14, 2020), available at, https://www.johnfredericksradio.com/podcast/december-14-2020/; https://www.youtube.com/watch?v=qWt1vB-OIZk&list=PL1q2i_zsupwSdYDFTH0pA-X- YNz57E5TV&index=2 (last visited Dec. 29, 2020) (Ex. 29).

    

Just sayin’:  that's a lot of "hyperbole."  Plaintiff is really entitled to go statement by statement through them demanding the court rule which is hyperbole, which is legal opinion, and if any presents a reckless disregard for the truth.  There are seven separate instances in that footnote alone.  And then there’s this one:

During a Newsmax interview on November 17, Powell claimed to have bombshell evidence to substantiate her wild accusations: she promised to tweet out a video of Dominion’s founder publicly admitting he “can change a million votes, no problem at all.”35 Powell never tweeted out such a video because it does not exist. The video does not exist because no such statement was ever made, nor would it be made, by Dominion’s founder.

And the beat(down) goes on:

After being introduced as a lawyer for the Trump Campaign and President Trump, Powell falsely told a global audience that Dominion was “created in Venezuela at the direction of Hugo Chávez to make sure he never lost an election,” that Dominion flipped votes from Trump to Biden by running an algorithm that automatically flips all the votes, and that George Soros’s “number two person” Lord Malloch Brown was “one of the leaders of the Dominion project.” Based on these false assertions of fact, Powell stated, “There should never be another election conducted in this country, I don’t care if it’s for local dog catcher, using a Dominion machine ...”37

That’s yet another instance.  Again:  hype?  Legal opinion?  Reckless disregard for the truth?  The plaintiff is entitled to a ruling on each separate instance, even if the statements are virtually the same each time.  Context matters.  Change the facts, change the outcome. Every instance could produce a different legal result

81. The Courts where Powell and Wood filed their meritless lawsuits saw right through their sham. The United States District Court for the Eastern District of Michigan found that Powell and Wood had submitted “nothing but speculation and conjecture that votes for President Trump were destroyed, discarded or switched to votes for Vice President Biden.” Op. & Order at 34, King v. Whitmer, No. 20-cv-12134 (E.D. Mich. Dec. 7, 2020) [Dkt. 62].

82. The United States District Court for the District of Arizona found that the evidence put forward by Powell and Wood was impressive only for its volume and was “largely based on anonymous witnesses, hearsay, and irrelevant analysis of unrelated elections,” and includes “expert reports” that “reach implausible conclusions, often because they are derived from wholly unreliable sources.” Order at 24-25, Bowyer v. Ducey, No. 2-20-cv-02321 (D. Ariz. Dec. 9, 2020) [Dkt. 84]. The “wholly unreliable sources” put forward by Powell and Wood in that case (whose declarations were posted on Powell’s fundraising website) included Terpsichore Maras-Lindeman, Russell Ramsland, William Briggs, and Josh Merritt a.k.a. “Spyder.”

83. After her last election lawsuit was dismissed on December 9, Powell doubled down on her false accusations about Dominion; in response to a tweet by Donald Trump, she wrote, “The election & media were all #rigged. Your voters broke the #Dominion algorithm... This election fraud must be completely exposed & ended NOW for the world.”51

If you recall, Powell has defended herself recently saying she relied on affidavits which were the basis of the suits mentioned here.  This is pretty much textbook "reckless disregard for the truth."  Not that that particular defense is before the court (and Dominion avers in its Complaint that it is not suing over claims made in the lawsuits, which negates a large part of Powell’s defense as outlined in the legal brief). Still, Powell has a very hard time claiming the allegations in the Complaint fit under the protection of the First Amendment.

Granted, allegations in a Complaint are not evidence; but one begins to see why Powell's lawyers want to dismiss her statements, heavily catalogued in the Complaint, with a sweeping generalization that they are all of the same substance and type, and must be treated as such.  Every case they cite in their brief, however, handles a specific statement (not dozens and dozens of them) and carefully examines that statement to determine whether or not it is protected speech.  Powell's argument is to ignore the specifics of her statements and just lump them all into a muddle and use that muddle to toss out the baby with the bathwater.  But courts are particularly set up to avoid just such an outcome.  What the defense is actually proving is that her statements don't bear very much examination; either as statements of fact, or as protected speech.

Besides, there are a lot of fact questions here, and even the Motion to Dismiss doesn't address those (if there are questions of fact, the dismissal cannot be granted):

90. Powell also touted a shocking declaration from an anonymous purported Venezuelan military officer alleging a decades-old international election-rigging conspiracy beginning with Hugo Chávez.59 But the “anonymous witness’s” explanation for why he purportedly came forward was a near-verbatim recitation from another declaration put forward by Powell, proving that those witnesses did not each write their declarations independently and raising serious questions about the role that Powell and her team played in drafting the declarations attached to Powell’s court filings and touted as “evidence” during her defamatory media campaign.

Too many, in other words, to grant a summary dismissal.  So the motion fails procedurally (the dismissal of so many of Trump’s suits challenging the election are the exceptions that prove the rule:  courts don’t dismiss cases without trial unless there are absolutely no questions of fact, and the questions of law favor the party moving for dismissal).  And really, I don't see how alleging a crime is "protected speech" or "mere hyperbole."

Powell and Wood repeatedly told national audiences that Dominion had bribed Georgia’s Republican governor and secretary of state for a last-minute no-bid contract. They claimed to have evidence to support that accusation, but never produced it during their televised appearances or on Twitter.

That's what the law calls "libel per se."  It is not protected speech.

That's really the first response:  a motion to dismiss is premature, without a record of all the statements made by the defendant which are libelous.  (This may be detailed in the Complaint, but I'd be surprised if the details of every alleged libel is provided there.)  The defense has to accept the allegations in the Complaint as facts, just to get to the threshold for a hearing on a dismissal. So the court may decide to take the allegations as undisputed facts, but the legal issues are far more complex and don’t lend themselves to a one-size-fits-all statements ruling. That means the court will have to rule on each instance as presented by the plaintiff, or to allow the plaintiff to present an argument for each instance.  That will take a while.  If the court accepts any one of them as libelous, it is fatal to the motion to dismiss.

Just sayin'; this ain't goin' away soon. And it's not going away quietly, or easily.