Sidney Powell, the pro-Donald Trump lawyer who led a multipronged legal effort to overturn Joe Biden’s win in the 2020 presidential election, has filed a motion to dismiss a defamation lawsuit by a Venezuelan businessman she accused of playing a role in widespread voter fraud.
Majed Khalil filed a $250 million lawsuit against Powell, former Fox Business host Lou Dobbs, and Fox News in December for defamation. He said Powell, Dobbs, and the network falsely and “xenophobically” linked him to the 2020 U.S. presidential election and widely-debunked claims of voter fraud. Powell, appearing on Dobbs since-cancelled show in December 2020, identified Khalil as one of four people working with voting software companies Dominion and Smartmatic to “rig or fix the results” of the election in favor of Biden.
Khalil said he has no connection to either company and accused the defendants of a “concerted, fraudulent effort to overturn the demonstrable and irrefutable fact that Donald Trump had lost the election, in which there had been no rigging or manipulation of the election results.”
Khalil originally filed his case in New York state court, and Fox had it removed to federal court.
“Hail Mary Pass”
Following the case’s transfer, Powell argued that the court doesn’t have jurisdiction and claimed that her statements are protected by the First Amendment.
“Plaintiff is a Venezuelan businessman who has nothing to do with New York,” Powell said in the motion to dismiss. “He does not reside here, own real estate here, nor conduct business here.”
Powell, through her attorney Howard Kleinhendler, said that her mere appearance Fox, which is based in New York, isn’t enough to support jurisdiction over Powell, who is based in Texas. The motion called Khalil’s efforts to have the case heard in New York nothing more than “spruced-up allegations” and a “Hail Mary pass.”
“In short, Plaintiff has not identified conduct by Powell that took place in New York,” Kleinhendler.
Powell argues that Khalil’s complaint didn’t allege facts showing that Powell knew the statements she made were false, a requirement for any defamation claim.
“It alleges no facts that, if proven by clear and convincing evidence, would show that Powell knew her statements were false (assuming arguendo that they were indeed false, which Powell disputes),” Powell says in the motion to dismiss. “Nor has Plaintiff alleged any facts showing that Powell ‘in fact entertained serious doubts as to the truth of h[er] publication.’ Indeed, she believed the allegations then and she believes them now.”
Powell also argues that the statements she made on Dobbs’ program are protected by the First Amendment’s free speech protections.
“All of these statements concern the 2020 presidential election, which was both a bitter and controversial matter of public concern,” the motion says.
Powell seems to argue that her mere appearance on Fox support her argument that her statements are constitutionally-protected opinion:
“Given that Powell appeared on Fox, it likewise is clear that her statements would be viewed as political support for President Trump. The Complaint asserts that ‘Fox Corp.’s most-high profile division is Fox News, which is in a symbiotic relationship with the President of the United States.’ The Complaint further characterizes the Fox network as the ‘go-to cable news network for American conservatives.’ The Complaint likewise claims that the ‘mainstream media’ and ‘prominent Trump appointees’ ‘publicly confirmed that the concerted disinformation campaign was just that[.]’
Thus, statements made by Powell in court filings and on news shows would be understood by readers and listeners as expressions of opinion by an advocate and consequently, are not actionable.”
“Viturperative, Abusive, and Inexact”
The motion suggested that anyone watching Dobbs’ interview with Powell should be expected to understand that she was expressing opinion, and not stating facts.
“Reasonable people understand that the ‘language of the political arena, like the language
used in labor disputes … is often vituperative, abusive, and inexact,’ [citations omitted]” the complaint says. “Given the highly charged and political context of the statements, it is clear that Powell was describing the evidence on which she based the lawsuits.”
Powell’s motion to dismiss also says that her comments about Khalil were about lawsuits that “affect the public interest,” they fall under First Amendment free speech protections.
“Making public announcements as to the status of cases that affect the public interest is an accepted and time-honored means of keeping the public advised about litigation that may have a profound effect on their lives,” the motion says, later adding: “Keeping the public informed about ongoing litigation, particularly litigation that affects the public interest, is not merely an accepted and widely practiced strategy in the legal profession, it is an indispensable concomitant of pursuing the case in court.”
The face of a four-state effort to topple the 2020 presidential election results, Powell nicknamed her litigation the “Kraken” after the octopus-like monster of mythology dramatized in the film “Clash of the Titans.” Just as the film’s “Kraken” was slain, so was Powell’s litigation in Michigan, Wisconsin, Arizona, and Georgia. In Michigan, a federal judge referred Powell and her eight co-counsel to their respective bars for “possible suspension or disbarment.” One of those co-counsel was her current lawyer: Kleinhendler.
The same judge ordered financial sanctions months later.
Attempting to scuttle his client’s possible defamation liabilities, Kleinhendler also invoked New York’s anti-SLAPP law—aimed at curbing lawsuits designed to stifle free speech—and argued that Khalil didn’t show in his complaint that Powell made her statements with “actual malice,” the required standard for a defamation claim.
Since president Biden’s win in November 2020, Trump and his allies—including Dobbs and Powell—have continued to push widely-debunked voter fraud conspiracy theories about the results. Both Smartmatic and Dominion have sued Fox News and various current and former hosts over some of these claims. In December, a Delaware judge denied Fox’s effort to dismiss the Dominion lawsuit, saying that, based on Dominion’s pleadings, he “can infer that Fox intended to avoid the truth.”
The deadline for Fox and Dobbs to reply to Khalil’s complaint is Jan. 31.
Read Powell’s motion to dismiss, below.
[Images via Khalil v. Fox, et. al. lawsuit.]
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