Case NOT Dismissed!

I should add, this isn't just anyone talking. It's @BoutrousTed, a giant in this field. @Popehat is more measured, saying, “It’s tricky, though. Generally at this stage, a court wouldn’t be considering extrinsic evidence like her statements.” https://t.co/KfUUhVii0e

— Noah Shachtman (@NoahShachtman) June 8, 2021

I tend to agree with the cautious analysis that, in a motion to dismiss the "court wouldn't be considering extrinsic evidence like her statements."  That's because a motion to dismiss requires such a failure in the complaint (the legal document that starts a lawsuit) that literally nothing about it is worth the court's time and it has to be tossed out because nothing about it is sound.  It's resolved on legal questions, not factual ones.

That is a different measure than a summary judgment, which is filed after discovery has been done.  While the argument is similar in both cases (the plaintiff has failed to state/present a cause of action upon which the court can grant relief), the summary judgement reviews the record and points out how insufficient it is to sustain a judgment against the defendant.  A motion for summary judgment says "They took their best shot, judge, but they couldn't provide any evidence that needs to go to a trier of fact.  Save everybody's time and toss this turkey." A motion to dismiss is predicated on the idea the plaintiff has failed entirely to present even a complaint the court can remedy.  The difference is subtle but important.

Here's the distinction handily explained by Powell herself:

Dominion’s suit against her should be dismissed, Powell continued, because “number one, they don't have jurisdiction over us and number two, we meant what we said and we have the evidence to back it up.”

Lack of jurisdiction means the court has no authority, let us go home and don't let the plaintiff bother us with this stuff.  That's a solid argument for a motion to dismiss, if you have the law on your side.  But "we meant what we said and we have the evidence to back it up" kills a motion for summary judgment, because evidence has to be weighed by a trier of fact (usually a jury).  Questions of law are those no reasonable person could disagree on (it's a legal fiction, go with it); questions of fact are those reasonable persons can disagree on.  Juries decide what the facts of a case are.  That's why they deliberate.  If Dominion has evidence and Powell has evidence, that case goes to trial.  Period.  End of discussion.

Now, would Powell's new statement get into court in a motion to dismiss hearing?  Well, it's only relevant if Powell's argument is that the evidence supports her defense.  But does it?  That's what trials decide.  If the argument is that the court has no jurisdiction, that's a question of law.  Evidence is not needed, it's a question of what the law on jurisdiction is in this case.  Her statement is probably irrelevant in a motion to dismiss hearing.  Those hearings are about the law, not about the facts.

What Powell said in Dallas ("we have the evidence....") takes away her legal defense that all she ever spouted was opinion which no reasonable person could consider to be fact.  She was bullshitting, and you can't sue her for being a fountainhead of bullshit (you can, but that's her defense so far).  Now she's said it wasn't bullshit, that she meant every word of it. And while that isn't in the court record yet, it soon will be.  And then any chance of dismissal of this case without a trial or a settlement is pretty much reduced to zero.

In fairness, it wasn't much of a defense. https://t.co/sGpOia5q0i

— George Conway (@gtconway3d) June 8, 2021

No, it really wasn't.