Lately, Sidney Powell has been widely misunderstood because the media, and some in the political arena, have cleverly edited language. This article will be limited in scope, and is a companion piece to the brilliantly written UncoverDC article written on March 31 by Mackenzie Bettle. His article is fulsome and explains the details of her Motion to Dismiss the Dominion Voting Systems defamation lawsuit against her far better than I can.
It is important to mention some context for my position in this opinion piece which will be based on facts with specific language from her complaint. My aim is to hopefully break things down the best way I can, so even a peabrain like me would be able to understand her intent.
Powell has been practicing law, legitimately and credibly for upwards of 43 years. It is indisputable that she is a highly respected lawyer and her record speaks for itself. In that context, it would be very odd for her to suddenly ditch her duty to continue to practice law in a credible manner. The idea that she is now a liar and has suddenly eschewed her “fidelity to the law” are on their face, frankly, ridiculous. Also worth a mention is the fact that there would be serious consequences, both professional and monetary, for a lawyer of her stature to violate the Rules of Professional Conduct.
Generally, when judging someone’s actions it is important to summon one’s common sense with an eye to past and present behavior—and then decide whether (barring a schizophrenic break) the actions being judged fit with what you have come to know about the person’s behavior— or are somehow aberrant. If the behavior seems to be aberrant, further investigation may be necessary and, in this case, the investigation is to dissect a sentence from Powell’s legal argument that has some how been twisted out of context to suit the agendas of those whose motives may not be completely transparent.
To illustrate the misunderstanding that has grown out of either purposeful or ignorant interpretation of Powell’s argument, I provide here just one of the latest of countless examples of the distortion of her legal argument which attempts to fool the reader into believing Powell is a dishonest, legal hack.
Let’s look at the following tweet that refers to the motion that Attorney General Dana Nessel announced she would file against Powell on April 7. The tweet is important because the responses to it fairly represent the reactions of many to Powell’s language in the motion—which, in many cases, has been pulled out of context and then disseminated in the media as a way to discredit Powell. Since context matters, my best guess is that many of those responding have not read the motion nor do they know the details of the ongoing election fraud cases in Michigan that might cause consternation for Nessel. I will leave it to the reader to form an opinion as to the motive behind Nessel’s statement.
Michigan Attorney General Dana Nessel says pro-Trump lawyer Sidney Powell's claim that 'no reasonable person' would believe her lies is exactly why she should be sanctioned.
"As lawyers, fidelity to the law is paramount."
"Their actions are inexcusable."https://t.co/cel1QpfuyO
— Kyle Griffin (@kylegriffin1) April 7, 2021
Here are a couple of the responses:
There are many others just like them. You get the idea. And, by the way, right after the motion was filed, many who had previously been loyal to Powell were seen all over Twitter making similar statements. The vitriol crossed party lines and could have been avoided for many had the facts been reported in context.
Now let’s look at Nessel’s statement on the 7th. I added bold lettering to the statement in question because it is this very language that was taken out of context from Powell’s motion and then virally distributed on every social media and news platform known to mankind as proof that Powell is a fraudulent, mal-practicing liar. Again, for context, keep in mind that Nessel is an Attorney General and probably knows how to read and interpret Powell’s motion in context.
April 7, 2021
LANSING – Michigan Attorney General Dana Nessel filed a motion to include new information in a case involving three Michigan attorneys and one Texas attorney who pursued a frivolous lawsuit in an effort to disenfranchise Michigan’s voters and undermine public trust in the outcome of the 2020 presidential election.
The new filing seeks to bring forward relevant statements made by Texas attorney Sidney Powell in a motion she filed in a case involving Dominion Voting Systems. Powell made multiple stunning admissions regarding her own statements, even going so far as to say, “no reasonable person would conclude that the statements were truly statements of fact.”
Now let’s dissect the part of the motion in the context from whence this legal statement came. Powell appeared on multiple news shows and press conferences during the heat of the post-election public discussion concerning alleged fraud in the 2020 election. In those appearances, she stated, in so many words, that she had piles of evidence from multiple citizens, public officials, and experts that she believes proves that the 2020 election was stolen. She made it clear that her mission was to present it in a court of law that would hear the case, look at the evidence, and would legally adjudicate the validity of her findings.
Her appearances inflamed emotions on both sides of the aisle. She was extremely transparent and diligent in her process— careful to put all of her evidence, findings, lawsuit online for all to read and judge for themselves. Unfortunately, only one of the cases that her experts were involved with went to discovery—the Antrim, Michigan case. And incidentally, many of those experts (in spite of their credible resumes) have been dragged through the mud by much of the press because of supposed involvement in conspiracy theories.
For clarity, I have divided the statement surrounded by the bolded language above into parts, starting with the controversial bolded statement on pages 37 and 38 of the motion, so that I can walk through each part to illustrate the legal logic based on precedent that Powell illustrated in her motion. For the purposes of this article, I am using the blue page numbers in the motion.
Again, for context, the Dominion lawsuit is for defamation. In the case of defamation for public figures (politicians) or entities (Dominion), the bar for winning a defamation lawsuit is almost impossible. Powell here is saying that her speech was opinion and later explains the bar for speech with malice which is also a high bar that was not met. The issue of harm and malice is discussed in Bettle’s article.
The statement here refers to the legal protections afforded by the First Amendment. Powell uses the law to prove that her statements about Dominion at that point in time were her opinion based on actual evidence she was seeing. It is not her role to adjudicate the evidence she was presenting at the time in the media. That is for a court of law. And since no court had yet heard her case and all the evidence was posted for the public to read on her website, the opinions she was making in her appearances could not be reasonably judged as statements of fact by the public.
Furthermore, since Powell consistently updated her website with the evidence, the public had access to the investigations and lawsuits and could decide for themselves whether they agreed with her opinions. Powell’s transparency with the documents allowed the public to read for themselves separate from Powell’s opinions. She then, in the motion, goes on to prove that her appearances were opinion and that “no reasonable person could conclude that the statements [without their attendant evidence to be later proven in court] were truly statements of fact.” Please refer to pages 39 to 41 for those exhibits.
The next parts of the motion are, in the document, contiguous, but here are divided for the purpose of explanation. Starting on page 42, Powell explains how her speech in the public arena is protected opinion and why. It is normal for speech under the circumstances of the time to be political and hyperbolic. Reasonable people understand that.
The next paragraph which starts on p.42 extends to p.43 explains the legal basis for writing that she disclosed the evidence publicly on her website and her opinions represented her “interpretation of the facts”…leaving the reader “free to draw his own conclusions”—to be proven or disproven in a court of law at a future time.
The next two sections explain that the “speech at issue,” her public appearances, are “not actionable”—meaning she has a right to speak her mind and cannot be sued for it (because no reasonable person would think her opinion is a fact). It is “robust” “political speech” and is protected by the First Amendment. It also explains that her speech was protected because it was spoken about in the context of future litigation that was important and pertinent for the public to know about. After all, it was a Presidential election to which she was referring in her appearances.
“All the allegedly defamatory statements attributed to the Defendants were made as a part of the normal process of litigating issues of momentous significance and immense public interest…tightly focused on legal theories they were advancing in litigation…”
As previously stated, the other attendant issues such as proper venue, issues of malice and harm, and the solidity of Dominion’s case, among other things, are all capably delineated in Mackenzie Bettle’s article cited above.
Just in case I have not clarified the misunderstanding that has resulted from the poor reporting behind Powell’s legal explanation, I have provided below Bettle’s contextual explanation of Powell’s sentence that has been the subject of so much debate. The text can be found below.
I genuinely hope that this furthers the effort to set the record straight. It is difficult in this day and age to find unvarnished or apolitical information. The risk that the media and politicians increasingly take when they fail to be precise with their facts is the growing public distrust of anything they hear or read. Often, the facts cannot be verified. However, in this case, the information has been available for anyone to read—which brings me to my final thought. It is also our responsibility to think for ourselves, to be curious, and use our magnificent faculties to dig for the truth wherever it may hide.