It could also put her in real legal danger as she fights the defamation lawsuit filed by Dominion Voting Systems – a manufacturer that provides electoral equipment used by more than 40% of US voters – as well as a sanction motion in Michigan as part of a case she brought alleging electoral fraud.
Gibson Dunn’s First Amendment expert Ted Boutrous said the legal implications for Powell could be dire.
“The First Amendment offers strong protections for statements of opinion,” he said. “But what Dominion is pointing out is the fact that Mrs. Powell was declaring that she had evidence of this electoral fraud and impropriety and she was declaring it as a matter of fact.”
“The First Amendment does not protect statements of fact that are consciously false,” added Boutrous.
“It’s official, Sidney Powell is a big fraud – according to Sidney Powell herself,” said CNN legal analyst Elie Honig of the new lawsuit.
Powell responded to reports in a statement released on Wednesday. “#FakeNews is lying to everyone about our process” in the Dominion case.
Powell’s lawyer, Howard Kleinhendler, issued an additional comment on the Dominion lawsuit. “First of all, let me be clear: any suggestion that ‘no reasonable person’ would believe Mrs. Powell or her comments on the election is false,” he said. “The language these reports refer to is a legal standard adopted by the courts to determine whether statements qualify as opinions exempt from liability for defamation.”
Dominion detailed comments Powell made at press conferences, a political rally and media appearances after she claimed that Dominion had rigged the election.
“As a result of the defamatory falsehoods sold by Powell – together with allies and the media who were determined to promote a preconceived false narrative – the founder of Dominion, the employees of Dominion, the governor of Georgia and the secretary of state of Georgia were they were harassed and received death threats, and Dominion suffered enormous damage, “wrote the lawyers in the United States District Court case for the District of Columbia.
“Dominion brings this action to clear things up, to claim the company’s rights under civil law, to recover compensatory damages, to seek a restricted injunction and to defend itself and its employees,” said the company.
In response, Powell’s lawyers pointed to the statements she made at a political rally in Georgia as an example of hyperbole.
“She claimed to have evidence that the election result was the ‘biggest crime of the century, if not the life of the world’,” they wrote.
“It is an equally recognized principle that political statements are inherently prone to exaggeration and hyperbole,” says the document. And then they added this statement: “Reasonable people would not accept such statements as facts, but would see them only as claims that are awaiting trial by the courts through the adversary process.”
The judge who oversees Dominion’s defamation suit in Washington is still examining the first questions about whether the case should continue in his court and whether Powell can be sued and is still not considering the legitimacy of Dominion’s allegations that Powell knowingly spread falsehoods about the company.
The court’s initial statement surprised David Fink, a lawyer who is asking a federal judge in Michigan on behalf of the city of Detroit to sanction Powell and others for not telling the truth.
“When I read the report on that case, I was shocked that Sidney Powell’s lawyers admitted that no reasonable person would believe the same allegations she made in federal court,” said Fink.
“These false statements are the reason we are asking the federal court to sanction it,” added Fink. “Powell shows a surprising disregard for the basic ethical obligations of our profession, a lawyer unable to speak the truth in court cases must hand over his bar card.”
Fink is not sure whether he needs or will bring the defamation case to the attention of the Michigan judge serving in the United States District Court for the Eastern District of Michigan. He had previously argued that if the sanctions against Powell are not deserved in his case, “it is difficult to imagine a case where they would be”.
Powell’s co-attorney in the Michigan case, Stefanie Lambert Junttila, classified the sanctions request as “unfounded” in court documents.
Rule 11, the federal rule in question, “is not intended to dampen a lawyer’s enthusiasm or creativity in the search for factual or legal theories,” she wrote, and asked the court to “avoid using the wisdom of hindsight” .
Junttila did not return a call Tuesday night for comment.
Stephen Gillers, a professor of legal ethics at NYU Law, said Powell is now in a “difficult position”.
“Even opinions can be defamatory if they imply false facts and Powell knew this or disregarded the truth or falsity of the underlying facts,” he said.
“Her problem is that her defense in the case of defamation is going to sink her in the case of Michigan,” he said.
Dana Nessel, Michigan Attorney General and Democrat, told CNN on Tuesday night that Powell’s statements and the lawsuits she filed were intended to undermine the election.
“The damage this individual, this woman has done and her companions who have filed these cases with her,” she said, “is countless.”
“And who knows how or when that damage can be undone,” added Nessel.