- So Sidney Powell has
filed a Motion to Dismiss the multi-billion dollar
lawsuit filed by Dominion. And yes, the headlines are true. Her principal defense in
this Motion to Dismiss is that no reasonable person
would listen to the things that she said and understand it as a fact. Now, that is both true and hilarious, but probably not hilarious for the reasons that most pundits have discussed. But we'll get to that because this whole motion is ridiculous. (upbeat music) So welcome back to Kraken Watch 2021. And today we have Sydney
Powell's attempt to get out of the multi-billion dollar
lawsuit that Dominion filed. To bring you up to speed, Dominion claims that Sidney
Powell said all number of crazy things during the election. And as a result, they lost
a huge amount of money, and as a result they have sued
Sidney Powell for defamation. So first off, where are we? Well, this is a Motion to Dismiss. So if you are a defendant in a case, you can claim that the plaintiff's
case is legally deficient by filing what's called
a Motion to Dismiss. You ask the court to dismiss the case. Now, contrary to popular belief, as we've talked about
a lot on this channel, a Motion to Dismiss doesn't
present any evidence. All you're doing is saying that for the purposes of this motion, everything that the plaintiff claims in their complaint is understood as true. They're not conceding that, but they're saying look, we're not going to dispute the facts at this particular juncture. We're just going to
assume that that's true. And even assuming that everything is true and looking at the allegations of the light most
favorable to the plaintiff, it still fails right out of the gate. Now, this is a very common tactic. There are later motions that you can make that will incorporate evidence. But the idea is to try and get
rid of the case immediately before going through
very expensive discovery that will gather all of that evidence. Now, in addition to trying to
just dismiss the case outright they're also moving for a
whole bunch of other things, like moving the venue from
Washington D.C to Texas and a bunch of other things
that we're not gonna get into because the real heart of this motion is trying to dismiss it from the court and not having to deal
with it anymore at all. And a quick reminder, defamation is a tort where you claim that someone
said something factual about you that is untrue and that caused damages to
you and your reputations. Of course, that requires
that the things being said are factual, being capable of verification and are not someone's opinion. It's not hyperbole, it's not parody. And so you can imagine that
a lot of the suit hinges on the nature of the
statements at issue here. And right off the bat, Sidney Powell and her attorneys
trying and argue some things to tip things in their favor. The first argument is that of course, this whole affair
involved political speech, an election, a president being elected, a fiercely contested
election in a pandemic. And as you can imagine, free speech rights are at
their absolute pinnacle when you're talking
about political speech. So if the court were to err on one side, it should be allowing more political or arguably political
speech than stifling it. And then number two is that
Dominion is a public figure. And if Dominion is a public figure, they're subject to a
much higher requirement to be able to prove defamation. This is the Actual Malice standard that a lot of people have talked about in a defamation context. And I don't wanna beat a dead horse here, but I will say this every time
we talk about defamation law. Actual Malice doesn't mean
that you said a statement because you hated someone. Actual Malice means that
you said a statement that was false knowing it was false or operating in a reckless disregard for whether it was true or not. And if Dominion is a public figure or a limited purpose public figure with respect to election-related things, then it would have to prove that Sidney Powell said these
statements with Actual Malice, which is a pretty high burden. And fair enough as we
covered on this very channel, Sidney Powell might be right about this and Dominion faces an
uphill battle to be able to prove the allegations
that they included in their complaint. But that's where this
Motion to Dismiss starts to go off the rails. Because now Sidney Powell
starts arguing substantively that these statements that she made, the hundreds of them cannot
give rise to defamation and here's where things get
a little bit ridiculous. And then Sydney Powell goes straight to the heart of it and argues. "Analyzed under these facts, even assuming arguendo, that each of the statements
alleged in the complaint could be proved true or false, no reasonable person would conclude that the statements were
truly statements of fact." And there are lots of
people on the internet taking that statement and
saying that Sidney Powell has admitted that everything that she said was completely false and
admits that she's a liar. Not so fast though. The things that she's
arguing are pretty crazy, that's not one of them. That is technically a
defense to defamation. to say that the things that you're saying are not statements of fact. What she's hearkening back to is the idea that what she is saying is opinion. There are lots of facts out there and then she just interprets them. And that interpretation
is not a statement of fact that can give rise to defamation. This is not a bad strategy. It is a bit of a mea culpa. It's not a good strategy, but it's probably the best strategy that she has in this context. And it's not a straight up admission that everything she says was false. In fact, later in the motion, they say that Sidney Powell actually does believe these things. They are sort of arguing that no reasonable person
would believe them, but also that she does believe them. But we'll get to that in a
second because it's just crazy. The other thing that
she's sort of arguing here is the idea that you
can sometimes say things that would give rise to
defamation as a fact, but given the context of the situation, it sort of walks it back. And the famous example of this
is the fake letter written by Jerry Falwell that
appeared in Hustler Magazine. Where this putative Jerry
Falwell talked about losing his virginity and all
kinds of raunchy things in Hustler Magazine. It was clearly satire and parody. And even though these were things that were sort of alleged as being true, these were factual statements. The context made it clear that
no one would understand these to be actual allegations
about Jerry Falwell. Now ironically, the
context may not actually help Sidney Powell in this case. Because not only is she
saying all of these things on TV, on Fox News, at the RNC, where she argues that it's
clearly just political theater, but she's also making
these exact same arguments in front of judges. She filed numerous lawsuits contending that these things were actual facts. So Sidney Powell finds
herself on the horns of a dilemma here. Because on the one hand, she's arguing these
aren't factual statements. They're more akin to an
interpretation or an opinion, especially given the context. But then on the other, she's actually making
these arguments to judges. She wanted the courts
to actually intervene and grant temporary restraining orders, preliminary injunctions, relief, to overturn the elections
on the basis of the things that she's saying here. There might be ways to thread this needle but this ain't it chief. Now, unfortunately there
are some practical reasons why a lawyer might dissemble or at least say different
things in different contexts and that's that it's really
hard to sanction a lawyer. Judges hate sanctioning lawyers. Bar associations hate sanctioning lawyers. So if you're going to
claim that the things that you were saying
were complete nonsense, better to say that in
defense of a defamation case where you have millions
of dollars at stake and just try and roll the dice with respect to being
sanctioned by the courts that you're appearing in. Now, the irony here is that there are pending sanctions
motions against Sidney Powell and the things that she is
arguing in this briefing may hurt her in those sanctions context. Now, the dollar amounts are
not going to be the same but potentially theoretically
her Bar license might be at issue in some of these cases. Though, I wouldn't hold my breath because judges hate to sanction lawyers, just like lawyers hate
to sanction lawyers. Though, at the same time it is
baked right into legal ethics that you cannot knowingly lie or dissemble to a judge or tribunal. It's all over the ethical rules for lawyers in every single state. And she's running a really,
really fine line here. And I would not wanna be in her position. And on the one hand, she's arguing that no reasonable person would believe any of these things. And yet she made these arguments to judges and tried to argue them in front of juries in a way to get them to
believe these things. And of course, we know that
a lot of people believed the things that she was saying. There were thousands of
people in Washington D.C who stormed the Capitol. I was here, I can attest to it. And so hard to say that no reasonable person would believe it because a lot of people believed it. Now, of course, query whether the people that stormed the capital were
reasonable people or not, that's not the way that the reasonable person standard works. But still, it's probably
pretty good evidence that people believed what
she was saying enough to act on it. And I wouldn't wanna be in her position and trying to walk that back and saying it was so ridiculous and non-factual that no one would believe it. But look, she has grifted
a whole lot of people out of a whole lot of money by saying dumber things than that. - The Dominion operators
went in and injected votes and changed the whole system. - And perhaps the biggest irony here is that she's arguing that as an attorney, as an advocate, as a zealous
advocate in front of a court you have to do what's
right by your client. But that cannot mean that
you can just make stuff up and fabricate arguments, that's not the way legal ethics work. And it's at this point in the brief where basically Powell's legal team stops citing actual legal authority and they start just citing websites. Now, that's really bad for two reasons. Number one, a Motion
to Dismiss is all about the law itself for the most part and you can't really bring in new evidence even if it's not necessarily controverted. So trying to bring in these
external websites talking about the robust public
discussion, not a good look. And it's almost certain that the court will bounce this motion
on that basis alone, which takes us to the
arguments about Actual Malice. And recall the Actual
Malice is a high standard. And it all hinges on what the
alleged defamer was thinking. Did they know the things that
they were saying were false? Did they know or should they have known? Were they reckless with respect to whether it was true or false. And Sidney Powell tries to get around that and get this case dismissed on the basis that she had a true belief that the things that she was saying were true and factual. And so she's arguing that
she couldn't possibly have had actual malice with respect to these are false statements because she really believed them. So yes, she is arguing
that no reasonable person would believe that these
were factual statements. And at the same time, she
is arguing that she did actually believe the
things that she was saying It's crazy. - President Trump won by a landslide, we are going to prove it. And we are gonna reclaim
the United States of America for the people who vote for freedom. - Then as we round out this motion, we get to another argument to dismiss a co-defendant called DTR,
Defending the Republic. And in something that
I think is just funny as a practicing lawyer, you'll notice that there are
some formatting errors here. The font has changed colors,
sometimes it changes back. What that is indicative of is
when lawyers copy and paste from another brief and then forgets that sometimes external documents
are in a different color. Often it's dark blue. And so that's almost always
why a different section has a different font color and appears a little bit lighter, and it varies depending on the sentence. It's because they did a really sloppy job of copying and pasting. Now, copying and pasting
isn't the end of the world. Lawyers are allowed to do that, you shouldn't necessarily
reinvent the wheel. But it's a real bad look
when it's very clear that you're copying from some other brief and not even bothering
to change the formatting. So this motion is risible, the court is almost certainly
going to deny this motion. There's a better version of this motion that could have been made. But you play the hand that
you're dealt, I suppose. And a lot of people are dog piling on this saying that Sydney Powell admitted that she was a liar. It doesn't go that far. She does argue extremely
contradictory things that are going to hurt her case. It's going to hurt her in other contexts where she might have
to deal with sanctions. But we don't need to make
up additional reasons for why this is a bad
look and why she's crazy because she's crazy enough on her own. But what do you think, do
you agree with my analysis? Leave your objections in the comments and check out this playlist over here with all my other real law reviews, where I have talked about
Kraken Law ad nauseum. So check out these other videos
and I will see you in court.
I thought this was her big chance to get the facts out during discovery. Why is she trying to dismiss this lawsuit rather than going to trial so she can expose the truth?
Was it all lies all along?
Calling it now: No consequences for her. She is not low enough on the food chain.
Legal Eagle is a fucking legend
Oh. Darn. How. Terrible. I. Am. Soooooo. Shocked. /s
Hope they throw the whole library at her.
Lol I hope she loses her practice and business.
you can lie to the public, you can lie to the television, the radio and the newspapers. but you cant lie in court.
The Twinkie defense might be more effective.
“Wait. Hold up. People believed the stuff I said while under oath in a court of law? Really??”
She’s have been better off continuing the lie. She essentially gave them intent and she admitted she defamed them intentionally because she lied.