Sidney Powell, Mike Lindell Claim Dominion Defamation Lawsuits Should Be Tossed Because They Believed Conspiracy Claims To Be True - Forbes

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Lawyers for right-wing attorneys Sidney Powell and Rudy Giuliani and MyPillow CEO Mike Lindell argued in court Thursday that Dominion Voting Systems’ defamation lawsuits against them should be thrown out, with Powell and Lindell doubling down on their fraud allegations and claiming the GOP’s efforts to overturn the election results legally justifies their spreading false conspiracy theories about the company.

Key Facts

Dominion has filed three separate lawsuits against Powell, Giuliani and Lindell and MyPillow seeking $1.3 billion in damages each alleging they defamed the company by spreading knowingly false claims that its voting machines changed votes in the presidential election.

In a hearing Thursday in federal court in Washington, D.C., on the Trump allies’ motions to dismiss the cases, Powell’s attorney Howard Kleinhendler alleged Powell’s public statements claiming fraud could not have been made with “actual malice” and been defamatory, because they were based on sworn affidavits and other evidence in post-election lawsuits Powell filed trying to overturn the election results, all of which failed in court.

Powell’s statements “cannot be assumed to be patently false” and should be considered opinions rather than statements of fact because they were based on legal claims she had reason to believe were true, Kleinhendler argued, though the lawyer did acknowledge some of Powell’s public statements about Dominion’s purported election fraud were “hyperbolic.”

Lindell’s lawyer Andrew Parker pointed to the audits and “investigations going on right now” into the 2020 election to justify the MyPillow CEO’s fraud claims about Dominion as not being defamatory, saying “something that might be inherently improbable at one time might not” be considered improbable later if it’s proven to be true.

Attorneys for both defendants refused to back down from their clients’ fraud allegations against Dominion: Parker said Lindell “knows that they are true” and the CEO will prove them “in the marketplace of ideas” or in court, and Kleinhendler said him and Powell “have never...conceded that what we’ve said is untrue” and Powell was “not alleging [fraud] out of thin air.”

Giuliani’s legal argument was much more narrow and based on criticisms of what damages Dominion was requesting, and he did not contest Dominion’s allegation that he made knowingly false statements about the company in his motion to dismiss the case.

Chief Critics

Both Dominion’s lawyers and U.S. District Judge Carl J. Nichols took issue during the hearing with Powell and Lindell’s legal arguments. Nichols pushed back against Parker’s claim that broad investigations into the integrity of the 2020 election and critical statements about Dominion made before the election are analogous to Lindell’s specific claims that Dominion committed voter fraud, saying they are “wildly different kinds of statements.” Dominion attorney Stephen Shackelford argued it was “sort of Alice in Wonderland” for Kleinhendler to argue that Powell was merely expressing opinions about Dominion—which would not constitute defamation—rather than making statements she was claiming were facts. The Dominion lawyer noted Powell “didn’t even put in conditional statements” to temper her fraud allegations against the company and stated false things about the company as if they were facts, and using legal affidavits to back up her statements only makes it seem more that she was trying to pass off her statements as fact. Dominion attorney Tom Clare also noted courts had repeatedly thrown out the cases with the affidavits Powell was citing and alleged Powell had “doctored” evidence in the lawsuits to bolster her fraud claims.

Surprising Fact

Giuliani, Powell and Lindell’s attempts to throw out the Dominion lawsuits come after the Trump allies had previously claimed they would “welcome” the legal action because it allows them to prove their claims of election fraud at a trial. “Please sue me...and then [Dominion] can show us all about your machines,” Lindell told Forbes in an interview before Dominion’s lawsuit was filed, while Giuliani said in a statement after Dominion sued him that the lawsuit would “allow me to investigate their history, finances and practices fully and completely.”

Key Background

The conspiracy theory about Dominion’s voting machines gained traction on the right in the aftermath of the election thanks to high-profile figures like Powell and Lindell who spread the claims. In addition to the three defendants who appeared in court Thursday, Dominion has also sued Fox News for defamation, and has threatened lawsuits against other Trump allies and potentially Trump himself. (Fox News has also moved to dismiss Dominion’s lawsuit against it.) There is no evidence backing up the fraud claims, and government-led audits and statistical analyses have affirmed there was no widespread fraud in the election or instances of voting machines being “rigged.” While all targets of Dominion’s lawsuits have denied the company’s claims, Powell and Lindell had aggressively doubled down on their allegations about Dominion even before Thursday’s hearing, with Lindell releasing a series of videos outlining his claims and claiming without evidence that Trump will be reinstated as president. Lindell and MyPillow have also countersued Dominion, accusing the voting company of “weaponizing the litigation process to silence political dissent and suppress evidence.”

Tangent

The Dominion trial took place hours after the New York Supreme Court suspended Giuliani’s law license. While not relevant to the Dominion case, as Giuliani has retained separate legal counsel and is not representing himself, Shackelford quoted the New York ruling on Giuliani’s suspension at the hearing to justify why Powell, as an attorney, should hold herself to a higher standard and not spread false claims. “As officers of the court, attorneys are ‘an intimate and trusted and essential part of the machinery of justice,’” Shackelford read. “In other words, they are perceived by the public to be in a position of knowledge, and therefore, ‘a crucial source of information and opinion.’”