- So Sidney Powell has filed a Motion to Dismiss
the multi-billion dollar lawsuit filed by Dominion.
And yes, the headlines are true.
Her principal defense in this Motion to Dismiss
is that no reasonable person would listen to the things
that she said and understand it as a fact.
Now, that is both true and hilarious,
but probably not hilarious for the reasons
that most pundits have discussed.
But we'll get to that
because this whole motion is ridiculous.
(upbeat music)
So welcome back to Kraken Watch 2021.
And today we have Sydney Powell's attempt to get out
of the multi-billion dollar lawsuit that Dominion filed.
To bring you up to speed,
Dominion claims that Sidney Powell said all number
of crazy things during the election.
And as a result, they lost a huge amount of money,
and as a result they have sued Sidney Powell for defamation.
So first off, where are we?
Well, this is a Motion to Dismiss.
So if you are a defendant in a case,
you can claim that the plaintiff's case is legally deficient
by filing what's called a Motion to Dismiss.
You ask the court to dismiss the case.
Now, contrary to popular belief,
as we've talked about a lot on this channel,
a Motion to Dismiss doesn't present any evidence.
All you're doing is saying that
for the purposes of this motion,
everything that the plaintiff claims
in their complaint is understood as true.
They're not conceding that,
but they're saying look,
we're not going to dispute the facts
at this particular juncture.
We're just going to assume that that's true.
And even assuming that everything is true
and looking at the allegations
of the light most favorable to the plaintiff,
it still fails right out of the gate.
Now, this is a very common tactic.
There are later motions that you can make
that will incorporate evidence.
But the idea is to try and get rid of the case immediately
before going through very expensive discovery
that will gather all of that evidence.
Now, in addition to trying to just dismiss the case outright
they're also moving for a whole bunch of other things,
like moving the venue from Washington D.C to Texas
and a bunch of other things that we're not gonna get into
because the real heart of this motion
is trying to dismiss it from the court
and not having to deal with it anymore at all.
And a quick reminder, defamation is a tort
where you claim that someone said something factual
about you that is untrue
and that caused damages to you and your reputations.
Of course, that requires that the things being said
are factual, being capable of verification
and are not someone's opinion.
It's not hyperbole, it's not parody.
And so you can imagine that a lot of the suit hinges
on the nature of the statements at issue here.
And right off the bat,
Sidney Powell and her attorneys trying and argue some things
to tip things in their favor.
The first argument is that of course,
this whole affair involved political speech,
an election, a president being elected,
a fiercely contested election in a pandemic.
And as you can imagine,
free speech rights are at their absolute pinnacle
when you're talking about political speech.
So if the court were to err on one side,
it should be allowing more political
or arguably political speech than stifling it.
And then number two is that Dominion is a public figure.
And if Dominion is a public figure,
they're subject to a much higher requirement
to be able to prove defamation.
This is the Actual Malice standard
that a lot of people have talked about
in a defamation context.
And I don't wanna beat a dead horse here,
but I will say this every time we talk about defamation law.
Actual Malice doesn't mean that you said a statement
because you hated someone.
Actual Malice means that you said a statement
that was false knowing it was false
or operating in a reckless disregard
for whether it was true or not.
And if Dominion is a public figure
or a limited purpose public figure
with respect to election-related things,
then it would have to prove
that Sidney Powell said these statements with Actual Malice,
which is a pretty high burden.
And fair enough as we covered on this very channel,
Sidney Powell might be right about this
and Dominion faces an uphill battle to be able
to prove the allegations that they included
in their complaint.
But that's where this Motion to Dismiss starts
to go off the rails.
Because now Sidney Powell starts arguing substantively
that these statements that she made,
the hundreds of them cannot give rise to defamation
and here's where things get a little bit ridiculous.
And then Sydney Powell goes straight
to the heart of it and argues.
"Analyzed under these facts,
even assuming arguendo,
that each of the statements alleged in the complaint
could be proved true or false,
no reasonable person would conclude
that the statements were truly statements of fact."
And there are lots of people on the internet
taking that statement and saying that Sidney Powell
has admitted that everything that she said
was completely false and admits that she's a liar.
Not so fast though.
The things that she's arguing are pretty crazy,
that's not one of them.
That is technically a defense to defamation.
to say that the things that you're saying
are not statements of fact.
What she's hearkening back to is the idea
that what she is saying is opinion.
There are lots of facts out there
and then she just interprets them.
And that interpretation is not a statement of fact
that can give rise to defamation.
This is not a bad strategy.
It is a bit of a mea culpa.
It's not a good strategy,
but it's probably the best strategy
that she has in this context.
And it's not a straight up admission
that everything she says was false.
In fact, later in the motion,
they say that Sidney Powell actually
does believe these things.
They are sort of arguing
that no reasonable person would believe them,
but also that she does believe them.
But we'll get to that in a second because it's just crazy.
The other thing that she's sort of arguing here
is the idea that you can sometimes say things
that would give rise to defamation as a fact,
but given the context of the situation,
it sort of walks it back.
And the famous example of this is the fake letter written
by Jerry Falwell that appeared in Hustler Magazine.
Where this putative Jerry Falwell talked about losing
his virginity and all kinds of raunchy things
in Hustler Magazine.
It was clearly satire and parody.
And even though these were things
that were sort of alleged as being true,
these were factual statements.
The context made it clear that no one would understand these
to be actual allegations about Jerry Falwell.
Now ironically, the context may not actually
help Sidney Powell in this case.
Because not only is she saying all of these things
on TV, on Fox News, at the RNC,
where she argues that it's clearly just political theater,
but she's also making these exact same arguments
in front of judges.
She filed numerous lawsuits contending
that these things were actual facts.
So Sidney Powell finds herself on the horns
of a dilemma here.
Because on the one hand,
she's arguing these aren't factual statements.
They're more akin to an interpretation or an opinion,
especially given the context.
But then on the other,
she's actually making these arguments to judges.
She wanted the courts to actually intervene
and grant temporary restraining orders,
preliminary injunctions, relief,
to overturn the elections on the basis of the things
that she's saying here.
There might be ways to thread this needle
but this ain't it chief.
Now, unfortunately there are some practical reasons
why a lawyer might dissemble
or at least say different things in different contexts
and that's that it's really hard to sanction a lawyer.
Judges hate sanctioning lawyers.
Bar associations hate sanctioning lawyers.
So if you're going to claim that the things
that you were saying were complete nonsense,
better to say that in defense of a defamation case
where you have millions of dollars at stake
and just try and roll the dice
with respect to being sanctioned by the courts
that you're appearing in.
Now, the irony here is that
there are pending sanctions motions against Sidney Powell
and the things that she is arguing in this briefing
may hurt her in those sanctions context.
Now, the dollar amounts are not going to be the same
but potentially theoretically her Bar license might be
at issue in some of these cases.
Though, I wouldn't hold my breath
because judges hate to sanction lawyers,
just like lawyers hate to sanction lawyers.
Though, at the same time it is baked right into legal ethics
that you cannot knowingly lie or dissemble
to a judge or tribunal.
It's all over the ethical rules
for lawyers in every single state.
And she's running a really, really fine line here.
And I would not wanna be in her position.
And on the one hand,
she's arguing that no reasonable person
would believe any of these things.
And yet she made these arguments to judges
and tried to argue them in front of juries
in a way to get them to believe these things.
And of course, we know that a lot of people believed
the things that she was saying.
There were thousands of people in Washington D.C
who stormed the Capitol.
I was here, I can attest to it.
And so hard to say
that no reasonable person would believe it
because a lot of people believed it.
Now, of course, query whether the people
that stormed the capital were reasonable people or not,
that's not the way
that the reasonable person standard works.
But still, it's probably pretty good evidence
that people believed what she was saying enough
to act on it.
And I wouldn't wanna be in her position
and trying to walk that back and saying
it was so ridiculous and non-factual
that no one would believe it.
But look, she has grifted a whole lot of people
out of a whole lot of money
by saying dumber things than that.
- The Dominion operators went in and injected votes
and changed the whole system.
- And perhaps the biggest irony here
is that she's arguing that as an attorney,
as an advocate, as a zealous advocate in front of a court
you have to do what's right by your client.
But that cannot mean that you can just make stuff up
and fabricate arguments,
that's not the way legal ethics work.
And it's at this point in the brief
where basically Powell's legal team
stops citing actual legal authority
and they start just citing websites.
Now, that's really bad for two reasons.
Number one, a Motion to Dismiss is all about
the law itself for the most part
and you can't really bring in new evidence
even if it's not necessarily controverted.
So trying to bring in these external websites talking
about the robust public discussion, not a good look.
And it's almost certain that the court
will bounce this motion on that basis alone,
which takes us to the arguments about Actual Malice.
And recall the Actual Malice is a high standard.
And it all hinges on what the alleged defamer was thinking.
Did they know the things that they were saying were false?
Did they know or should they have known?
Were they reckless with respect to whether
it was true or false.
And Sidney Powell tries to get around that
and get this case dismissed on the basis
that she had a true belief that the things
that she was saying were true and factual.
And so she's arguing that she couldn't possibly
have had actual malice with respect
to these are false statements
because she really believed them.
So yes, she is arguing that no reasonable person
would believe that these were factual statements.
And at the same time, she is arguing that she did
actually believe the things that she was saying
It's crazy.
- President Trump won by a landslide,
we are going to prove it.
And we are gonna reclaim the United States of America
for the people who vote for freedom.
- Then as we round out this motion,
we get to another argument to dismiss
a co-defendant called DTR, Defending the Republic.
And in something that I think is just funny
as a practicing lawyer,
you'll notice that there are some formatting errors here.
The font has changed colors, sometimes it changes back.
What that is indicative of is when lawyers copy and paste
from another brief and then forgets
that sometimes external documents are in a different color.
Often it's dark blue.
And so that's almost always why a different section
has a different font color
and appears a little bit lighter,
and it varies depending on the sentence.
It's because they did a really sloppy job
of copying and pasting.
Now, copying and pasting isn't the end of the world.
Lawyers are allowed to do that,
you shouldn't necessarily reinvent the wheel.
But it's a real bad look when it's very clear
that you're copying from some other brief
and not even bothering to change the formatting.
So this motion is risible,
the court is almost certainly going to deny this motion.
There's a better version of this motion
that could have been made.
But you play the hand that you're dealt, I suppose.
And a lot of people are dog piling
on this saying that Sydney Powell admitted
that she was a liar.
It doesn't go that far.
She does argue extremely contradictory things
that are going to hurt her case.
It's going to hurt her in other contexts
where she might have to deal with sanctions.
But we don't need to make up additional reasons
for why this is a bad look and why she's crazy
because she's crazy enough on her own.
But what do you think, do you agree with my analysis?
Leave your objections in the comments
and check out this playlist over here
with all my other real law reviews,
where I have talked about Kraken Law ad nauseum.
So check out these other videos and I will see you in court.