Sidney Powell’s Tucker Carlson-esque defense: ‘Reasonable people’ wouldn’t take her wild voter-fraud claims as fact

“Given the highly charged and political context of the statements, it is clear that Powell was describing the facts on which she based the lawsuits she filed in support of President Trump,” Powell’s defense team said in a motion to dismiss.

It added: “Indeed, Plaintiffs themselves characterize the statements at issue as ‘wild accusations’ and ‘outlandish claims.’ They are repeatedly labeled ‘inherently improbable’ and even ‘impossible.’ Such characterizations of the allegedly defamatory statements further support Defendants’ position that reasonable people would not accept such statements as fact but view them only as claims that await testing by the courts through the adversary process.”

So there you have it: One of the chief architects of former president Donald Trump’s baseless effort to overturn the 2020 election admits that maybe, actually it was just that baseless and she was just saying stuff.

If that sounds familiar, it’s because it’s quite similar to the defense offered by another Trump ally in a high-profile defamation lawsuit: Tucker Carlson. When Carlson accused Karen McDougal of extorting former president Donald Trump over her claims of an affair, McDougal filed suit against him. Fox News’s defense was that a “reasonable viewer” would not accept such claims as fact because of the tenor of Carlson’s show. And a judge agreed, dismissing the case.

The strategy successfully insulated Carlson and Fox News from legal liability, but it now hangs over Carlson’s programming. He’s forever pegged as the journalist whose own employer admitted a reasonable person wouldn’t — and perhaps shouldn’t — expect his claims to be true.

Powell is running into the same Sophie’s Choice, and she’s opted for the least-bad option: the you-guys-didn’t-actually-believe-what-I-was-saying defense.

There are some differences between the Carlson defense and Powell’s. One is that while his job is to entertain and (ostensibly) to inform, she was a legal advocate. There is an expectation that lawyers will represent their cases without qualifying everything they claim by saying, “Well, I might not actually believe this, but I’m saying it for my client.”

But there are also some holes in that defense-of-last-resort.

While Powell’s team says the pushback on her claims shows that people didn’t actually believe them, that doesn’t really track with reality. Polls show as many as three-quarters of Republicans believed there was widespread fraud in the 2020 election. A January Washington Post-ABC News poll showed that more than 6 in 10 Republicans believed there was solid evidence for Trump’s claims of rampant fraud. There aren’t good data specifically on the idea that voting machines changed large quantities of votes, but that was so central to the conspiracy theories that there is little question plenty of seemingly reasonable people came to believe that.

Of course the plaintiffs would call the claims ridiculous, but that doesn’t mean lots and lots of Americans didn’t internalize and believe them. There is lots of evidence that they did. And in fact, the claims fueled so much mistrust that people literally stormed the Capitol based upon them, and GOP legislators across the country are now using that mistrust to pass voting restrictions, despite there being no actual evidence of widespread fraud.

“The bottom line here is that people did believe Powell, and thus must have taken her claims as representations of facts,” said Roger Schechter, a law professor at George Washington University. “The fact that ‘stop the steal’ became the motto of disaffected Trump voters shows that they believed there was a steal and that therefore they took the claims of voting fraud as true.”

The second issue is Powell’s claim that she was merely acting as an advocate for Trump. The concept of “litigation privilege” protects statements made by a lawyer on behalf of their client in court or as a part of legal proceedings (though the protections are less robust for statements made outside of that setting, such as on TV or social media).

Powell did serve on Trump’s legal team, but only for eight days between when she was announced as being on the team and when she was unceremoniously removed in late November. “She was too crazy even for the president,” one anonymous campaign official told The Washington Post at the time.

Powell proceeded with her campaign after that, even as she was apparently no longer affiliated with Trump’s legal team. As I recapped a while back, many of Powell’s most far-flung claims came during the brief period during which she was on the Trump team, but many others came afterward. To wit:

• Dec. 10: “We now have reams and reams of actual documents from Smartmatic and Dominion, including evidence that they planned and executed all of this. … We have evidence of how they flip the votes, how it was designed to flip the votes.”
• Dec. 10: “The election & media were all #rigged. Your voters broke the #Dominion algorithm … This election fraud must be completely exposed & ended NOW for the world.”
• Dec. 11: “There should be no more voting on computers or #Dominion anywhere Can only expect another #rigged result.”
• Dec. 23: “There’s stunning mathematical and statistical evidence and data that’s absolutely irrefutable of massive amounts of votes just disappearing from the system in the hundreds of thousands.”

The lawsuit runs through dozens of examples of Powell’s allegedly defamatory claims after her late-November excommunication from the Trump legal team, when she was seemingly acting of her own volition.

Powell’s legal team notably says these claims were made to support the lawsuits she filed “in support of President Trump,” not necessarily as part of his legal team. So the court will have to decide not only how much “litigation privilege” extends to statements made on TV and social media but also to someone merely supporting the legal effort of someone who isn’t their actual client.

There are myriad huge questions involved in these lawsuits, which will determine the degree to which wild political conspiracy theories like these are protected speech, even if they might damage a company like Dominion. And this one is a big one, given that Powell arguably went further than anyone except Lindell.

She promised you “the Kraken,” and now she admits that maybe it was all just a myth.