Trump's Election Lawyer Throws Him
Under the Bus
Sidney Powell is trying a brazen and bizarre argument in
defending herself against a defamation lawsuit by Dominion Voting Systems.
By Noah Feldman
March 23, 2021, 6:30 PM GMT
Sidney Powell, one of Donald Trump’s former lawyers, is
being sued by Dominion Voting Systems for defamation. Her lawyers have entered
a truly astonishing defense: that
her statements alleging the Democratic Party stole the election using the
company’s vote counting software can’t be defamation because no reasonable
person would have believed them.
The defense is legally wrong. Her statements were clearly
assertions of fact — and they were believed by many members of the public.
Nevertheless, it is a fascinating argument — an acknowledgement that any claim
associated with Trump could be considered mere bluster, even when framed in
factual terms. In short, Powell’s defense is to throw Trump under the bus. The basic
idea: He is such a known liar that any assertion made on his behalf in
an election can’t be taken as remotely plausible.
Under U.S. Supreme Court precedent, for statements to count
as defamation, they must be susceptible of being proven true or false. Opinion
statements are protected by the First Amendment from being made subject to
libel law. Political opinion is especially protected.
Powell’s lawyers say that Colorado law (which they say
should apply because it’s where Dominion is located) also separately requires
the statements to be recognized as factual by a reasonable person. I am not at
all sure that’s what Colorado law actually says. To me, it sounds much more
like the Colorado courts think the way we know whether a statement is factual
is to ask whether a reasonable person would find it so. But never mind the
quibble. Powell’s defense claim requires her to assert that a reasonable person
wouldn’t think her statements about the election being stolen using the
Dominion voting software were credible.
The brief points out that Powell’s statements were made as
part of Trump’s post-election campaign to overturn the result. It insists they
were her opinions and legal theories — and, by extension, Trump’s. They were, the brief says, merely “claims
that await testing by the courts through the adversary process” — as though
promising to prove facts in court means those aren’t facts at all. The brief
also shows screenshots of Powell on Fox
News — as if to suggest that nothing said on Fox could be susceptible of
being considered fact.
The thrust of the argument is that anything coming from
Trump’s camp cannot be taken seriously as a factual statement. It was,
Powell’s lawyers are saying, all rhetoric and opinion all the time, and
reasonable people knew it.
You would think that the evident fact that many Republicans do believe exactly what Powell asserted would
stand in the way of her argument. Not at all. Her lawyers imply either that those
people aren’t reasonable, or else that they must be lying about what they
think.
Both implications merit notice. Lots of Democrats think the
Republicans who believe the election was stolen aren’t being reasonable. On the
surface, that would seem to support Powell’s stand.
But on closer analysis, there’s a difference between
believing something unreasonable is true and believing the statement is merely
opinion of the kind that can’t be either true or false. Presumably the people
who unreasonably believe the election was stolen really do believe that
elections can be stolen as a matter of fact. So even by her own lawyers’ logic,
that can’t be a reason to dismiss Dominion’s lawsuit.
More intriguing is the idea that people who say the election
was stolen might not mean it literally as a matter of fact, but only as an
expression of political sentiment. This theory is reminiscent of the
observation, dating back to the 2016 campaign, that Trump’s supporters take him
seriously but not literally while his detractors take him literally but not
seriously.
I don’t think we should dismiss out of hand the notion that many Trump supporters are relativists, people
who think there aren’t just truths and falsehoods out there but also alternative
facts that correspond to political beliefs. Trump himself might believe a
version of this vernacular relativism.
If we accepted that in politics, there is no category of
factual truth, that would spell the end of libel suits on all matters connected
to politics. The suit against Powell would deserve to be thrown out, as her
lawyers urge. We would admit that Fox News isn’t peddling facts but only
opinions. And that Trump isn’t so much a liar as a relativist who denies that truth itself exists.
Happily, we haven’t yet reached that point. The courts will
reject Powell’s “it’s all opinion” defense. Now all we have to do is solve the
problem of how to get people to believe the factual truth even when it doesn’t
fit their political beliefs.
This column does not necessarily reflect the opinion of the
editorial board or Bloomberg LP and its owners.
To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net
To contact the editor responsible for this story:
Sarah Green Carmichael at sgreencarmic@bloomberg.net
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