In chess, champions yell “checkmate.”
Once a fledgling nation-state, Genghis Khan and the Mongols led brutal campaigns under such a strategy. The Mongols used this Art while amassing the Earth’s largest contiguous empire ever. To their enemies, the most successful tactics seemed bizarre and arcane.
Thinking the moves were motivated by Mongol weakness, generals would retaliate in knee-jerk fashion. But, many powerful nations were led like sheep to the slaughter. Entire civilizations succumbed to slavery and savagery. The tactics employed were neither arcane nor bizarre. It was the Supreme Art of War, published almost a millennium before Khan devastated even the Europeans. It is widely still read today.
Dominion Voting Systems, the software company at the heart of many of the 2020 Election controversies and conspiracies, has brought several defamation lawsuits as of late. The company is seeking damages many would consider astronomical. Sidney Powell, a star former-federal prosecutor, General Flynn’s successful criminal defense attorney, and author of Licensed to Lie, is just one defendant in the crosshairs.
The lawsuit against Powell was brought in Washington, D.C., a politically questionable and legally improper place for a Colorado company to sue a Texan. The burn of political interference in the D.C. circuit is something Sidney Powell is especially experienced with. As per Dominion, Ms. Powell is alleged to have made “wild accusations” and “outlandish claims” about the company – claims that could only be verified using data from Dominion via a pre-trial discovery process and argued in court.
Powell’s legal arguments are sound. A proper trial may shed a sufficient amount of light to put to bed questions surrounding the election. Her strategy seems, in hindsight, supreme.
The Motion to Dismiss
Despite the immediate outcry and disingenuous legacy media reporting, her recent motion to dismiss or change venue could affirm decisive legal protection for private citizens against entities that have been considered or labeled “public figures” under N.Y. Times Co. These entities are different from government officials, such as politicians, with the latter not having to guarantee the truth of their factual assertions. Politicians are practically unable to defend against defamation. If they could, some media would be bankrupt after the last four years. Now, thankfully, when public figures engage in the deprivation of constitutionally protected rights of private citizens, Americans can reap monetary damages.
Ms. Powell’s motion argues Dominion is, at minimum, a “limited-purpose public figure.” These types of “public figures” are found in cases where the defamatory statements involve a “matter of public concern” and whether the level of the plaintiff’s “participation invites scrutiny.”(Refer to Zueger v. Goss.) Ms. Powell’s statements involve the single most important election in our country – the Presidential election. And Dominion states that it operates “nearly 300” state and local elections, managing equipment that services over “40% of U.S. voters” (almost 62 million). Such standards appear satisfied.
Limited purpose public figures can defend against defaming statements but must prove the statement was made with actual malice, can be proved “true or false,” and that people accepted the statements as fact, in light of the phrasing, context, and circumstances. Statements of fact and opinions based on statistical analysis are not the same.
Dominion is claiming that Ms. Powell’s statements cannot be regarded by a reasonable person as truthful. This seems to me to be a counterproductive claim to Dominion’s cause, as it holds such answers in its software’s data—or should. All companies keep records.
What Does Dominion Have to Prove?
Dominion must prove that Ms. Powell’s statements were motivated by actual malice, proven by clear and convincing evidence. This is a higher bar to vault than the typical civil standard; by apreponderance of the evidence. That is, Dominion must show Sidney Powell knew her claims were false—and peddled them anyway.
Powell has filed voter integrity lawsuits in many different states, published a 270-page public record of the evidence used has spoken on the public record and has not walked back any claims. She sounds like someone who firmly believes in the truth of her statements.
Arguments used by Dominion in court that Ms. Powell is advancing her claims because of some lucid loyalty to the former-President are meritless — by about thousands of pages of evidence and expert testimony. Evidence used by Ms. Powell is not only backed by private experts, it is backed by the federal government and many state governments — from both sides of the aisle.
Where Dominion Went Wrong
Dominion, in its legal complaint, failed to state the proper type of harm necessary for relief to be granted on defamation. In fact, Dominion’s allegations are entirely devoid of the legally proper information, statements, or evidence required to succeed on its merits. That means they are asking the federal judge to punish Ms. Powell and her companies simply because Dominion wants that outcome. This is akin to a child on a playground faking a story to punish someone they do not like, except the federal government has a lot more power than a principal. We also have constitutional rights.
Our federal judiciary has consistently found political speech regarding important federal elections protected under the First Amendment. The language used in the political arena is “often vituperative, abusive, and inexact.” Watts v. United States. Likewise, political speech is ‘inherently prone to exaggeration and hyperbole.” Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists. Speech must be “uninhibited, robust, and wide-open.” N.Y. Times. Co. Because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana. Political speech regarding these events has been rigorously defended because of the profound national implications. SCOTUS has held that political speech is “entitled the fullest possible measure of constitutional protection.” Members of City Council of Los Angeles v. Taxpayers for Vincent. Dominion, to the outside observer, by seeking such high monetary damages, seems to be extorting silence through intimidation of the court system. This should not be tolerated.
Dominion continues to claim Ms. Powell intentionally caused them damage because of some ‘unfounded, evidence-less, and fraudulently’ motivated “ill will.” Such categorical allegations by Dominion are unsupported in the complaint they filed against Ms. Powell. The Supreme Court in Iqbal found that statements like the ones Dominion made in their complaint “do not suffice to satisfy the pleading standards” to survive a motion to dismiss.
Recent Precedent Matters
Unfortunately, too, for Dominion, the D.C. Circuit agreed with Ms. Powell this past week in a differing opinion regarding the defamation against her. As the D.C. Circuit noted, “[o]ur court… has made clear that evidence of ill will is insufficient by itself to support a finding of actual malice.” With the mountains of evidence supplied by Ms. Powell, it is clear her claims are not the ones that may seem to contain malice.
This builds upon prior D.C. Circuit precedent. In Bauman, the court found that “when a defendant provides the facts underlying the challenged statements, ‘it is clear the challenged statements represent [her] own interpretation of those facts,’ which ‘leav[es] the reader free to draw [their] own conclusions.”
This means opinions backed by evidence cannot be found to have malice. It means that the attacks against Powell for her motion are unfounded and based upon a complete disregard and appreciation for the argument in her filing.
Powell was Defending the People
Dominion is, in essence, claiming the global audience addressed by Ms. Powell is incapable of looking at the evidence themselves and formulating their own opinions. Talk about a wildly outrageous statement! The only way for Dominion to succeed is to release their data to prove the evidence and other experts wrong—but even then, no defaming occurred. People debate statistics all the time in public. Sidney Powell is arguing that she formed opinions based on the data, expert testimony, and evidence she was presented with.
The vices executed in this pending trial-trap are so beautiful, it is hard to write a better story. The applicable state law for Dominion’s claims against Ms. Powell and others is Colorado. Certain laws can be tried under the relevant state’s laws in federal courts between citizens from different states. Unless federal law preempts, stronger state laws are ones that can apply. In this case, because Colorado is making the claims, Colorado’s law applies, even in Texas. Colorado’s Supreme Court and Constitution have stronger and more vibrant First Amendment protections and case precedents than even the United States Constitution and Supreme Court. The forum, which is crucial in jury selection for trials, is in freedom-loving Texas.