Conservative attorney Sidney Powell and her legal team have been spreading a series of false statements and bizarre accusations against elections systems vendors via court filings and during various media appearances in service of their failed Kraken lawsuits. While privileges afforded to lawyers in most states suggest Powell doesn’t have much to worry about regarding her pleadings, her out-of-court appearances could be another question entirely.
As Law&Crime previously reported, attorneys for Dominion Voting Systems put Powell and President Donald Trump’s losing presidential campaign on notice of their intent to initiate legal proceedings over the wild-eyed conspiracy theories being peddled.
Among a series of false and “error-filled” claims made by Powell and her attorneys is the whole cloth accusation that dead Venezuelan president Hugo Chavez has some connection to the vendors. Other missteps including inflating credentials for an alleged expert witness and relying on a report that confused Minnesota for Michigan.
“Your false accusations about Dominion are defamatory per se and have exposed you, the entities you control, and the Trump Campaign to substantial legal risk for defamation,” a demand letter from seasoned defamation attorneys Thomas Clare and Megan Meier.
Styled as a retraction demand, the letter goes on to instruct Powell to perform document preservation of all relevant evidence–a pro forma request at the beginning of would-de defamation litigation.
Despite those threats, however, defamation law likely protects the pro-Trump attorneys to a certain extent.
“[I]n most states there is a privilege within defamation law that allows lawyers to announce the positions of their clients without being sued,” Loyola Law School Professor and First Amendment scholar Aaron H. Caplan explained in an email to Law&Crime.
“In all states, what a lawyer says in court cannot be the basis for a defamation suit against the lawyer,” Caplan added. “In many states, this privilege also extends to statements made outside of court by a lawyer who is explaining the reasons for a client’s position, including statements at press conferences.”
Caplan also offered the following upshot:
So for Sidney Powell, the questions would be (a) which state’s law are we looking at; and (b) were the false statements made in the context of advocating for a client, or instead were they just the lawyer speaking on her own behalf.
It’s currently unclear which state(s) Dominion is considering suing Powell and her team in–Powell is licensed to practice in Texas and Dominion’s demand letter cites Fifth Circuit (which includes Texas) precedent. The Lone Star State, while perhaps not where Powell might or will be sued, is still an instructive and representative example of the generally applicable litigation privilege, which Texas courts generally refer to as “attorney immunity.”
A 2003 case from a court of appeals explains the concept:
“Any communication, oral or written, uttered or published in the due course of a judicial proceeding is absolutely privileged and cannot constitute the basis of a civil action in damages for slander or libel.” “This privilege extends to any statement made by the judge, jurors, counsel, parties or witnesses, and attaches to all aspects of the proceedings, including statements made in open court, pre-trial hearings, depositions, affidavits and any of the pleadings or other papers in the case.” The law allows absolute privilege or immunity for a communication because of the occasion in which it is made.
And, in 2018, the Texas Supreme Court opined on the extent to which this private law carve-out for attorneys applies to their aggressive–and even false–representation of clients:
An attorney is immune from liability to nonclients for conduct within the scope of his representation of his clients. Put differently, an attorney may be liable to nonclients only for conduct outside the scope of his representation of his client or for conduct foreign to the duties of a lawyer…the above inquiry correctly focuses on the kind of conduct at issue rather than the alleged wrongfulness of said conduct. That is, a lawyer is no more susceptible to liability for a given action merely because it is alleged to be fraudulent or otherwise wrongful.
The above description of the litigation privilege’s reach is fairly expansive but, as noted above, each state is different and Texas may not be where any defamation lawsuit is ultimately filed.
Other states, like Georgia (where one of the failed Kraken lawsuits was filed and where Dominion employees have been harassed and threatened with death for doing their jobs) only provide qualified immunity “for all other conduct in the performance of a legal duty.”
Michigan (where another failed Kraken lawsuit was filed) also conditions the application of the litigation privilege when defamatory statements are made outside of strictly legal contexts. In either case, the inquiry would likely be highly fact-intensive.
In other words, while Powell is likely safe for all the false and harmful things she’s said and done in her legal filings and via courtroom theatrics, the media appearances and press conferences she’s made and held could be a bit of a problem.
Notably, Powell has also made similar claims against Dominion competitor Smartmatics–who earlier this week telegraphed their own intent to initiate legal proceedings over the barrage of misinformation in a series of letters targeting conservative and right-wing news outlets Fox News, Newsmax and One America News.
The structure and focus of Smartmatic’s legal threats is likely to be instructive here.
Jonathan Schwartz is a partner at Michigan-based Jaffe Raitt Heuer & Weiss, P.C. He detailed the perils for Powell and her team in an email.
“The accusations leveled against these election vendors are extreme, largely unsubstantiated from what I’ve seen, and certainly could place President Trump and his allies’ legal team in jeopardy if untrue,” Schwartz said. “Making allegations in the context of actual court proceedings is one thing. If a case is frivolous, then a court can impose costs and fees upon the losing party and its attorneys, but even over-the-top statements in pleadings and during oral arguments are generally immune from defamation claims.”
“However, a lawyer who makes false allegations which are harmful to another party outside the courtroom, especially a business, is facing a different situation entirely, even if there is an ongoing case,” the Wolverine State attorney continued. “Lawsuits can absolutely be filed against attorneys for defamatory statements made in press conferences and media appearances, or even for sending a copy of a frivolous complaint to a non-party. If Smartmatic and Dominion can show damages stemming from defamatory comments made by opposing attorneys outside of formal litigation, there is significant potential exposure, ranging from defamation to interference with business claims.”
Law&Crime reached out to both vendors’ attorneys for comment and clarification on this story but no response was forthcoming at the time of publication.
Schwartz went on to caution that pro-Trump attorneys “would be well advised to watch their words outside of these questionable lawsuits or they risk changing their position from Officer of the Court to Defendant.”
Powell has not yet responded to Law&Crime’s earlier request for comment, which was made after news broke about the Dominion retraction demand letter.
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