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Dominion Voting Systems Sues pro-Trump Lawyer Sidney Powell

  • January 15, 2021
  • Clayton Rice, Q.C.

On January 8, 2021, Dominion Voting Systems filed a defamation lawsuit against lawyer Sidney Powell demanding over $1.3 billion in damages caused by her proliferation of “wild” and “demonstrably false” accusations that it rigged the 2020 U.S. election, was created in Venezuela to manipulate elections for Hugo Chavez and that it bribed Georgia officials for a no-bid contract. Here’s the story.

1. Introduction

Ms. Powell entered the Trump orbit when she represented former National Security Advisor Michael Flynn who pleaded guilty in 2017 to making false statements to the FBI during the Russia probe but received a presidential pardon. She pushed a false narrative during a televised interview on Election Day to excuse the impending loss by President Donald J. Trump claiming that Democrats were trying to “steal the vote” and had developed a computer system to alter votes electronically. Emboldened by President Trump’s endorsement, she was launched into media stardom. Although Ms. Powell had been described as a member of the Trump campaign’s “elite strike force” she was later disavowed as one of its lawyers by Rudy Giuliani after she made unsubstantiated allegations that Republican officials were involved in a payoff scheme to manipulate voting machines.

2. What is Dominion Voting Systems?

The Complaint and Demand for Jury Trial filed in the United States District Court for the District of Columbia was initiated by three plaintiffs against three defendants. (here) US Dominion, Inc. and Dominion Voting Systems, Inc. are Delaware corporations based in Denver, Colorado. Dominion Voting Systems Corporation was incorporated under the laws of the Canadian province of Ontario. The plaintiffs assert that “Dominion was founded in Toronto for the purpose of creating a fully auditable paper-based vote system that would empower people with disabilities to vote independently on verifiable paper ballots.”

Dominion gained prominence in the weeks following the election when President Trump called it a “radical left” company with a “bad reputation” that supplies states with “bum equipment”. (here) President Trump and his allies have continually advanced unfounded claims that Dominion’s systems are insecure and were hijacked by Democrats to swing the election for President Elect Joseph R. Biden. But Dominion is not new to the American election landscape. It has supplied voting equipment to counties in 28 states and “counted 70 million votes in more than 1,600 jurisdictions in the 2016 presidential election that Trump won.” In a statement to the U.S. Congress last year, John Poulos, co-founder of the company in 2003, said Dominion was governed by the basic pillars of security, accessibility and transparency. (here)

3. Who is Sidney Powell?

The action was brought against Ms. Powell in her personal capacity and describes her as a self-proclaimed “media figure”, the self-published author of a book that purports to be a seminal work in “exposing” the Deep State, and a member of the State Bar of Texas. Her law firm, Sidney Powell, P.C., also a defendant in the complaint, is a sole proprietorship. The plaintiffs say “[t]here is a unity of ownership” between her and the law firm such that “there is no discernible difference” between them. The third defendant, Defending the Republic, Inc., is Ms. Powell’s fundraising website that was “belatedly incorporated” to solicit “millions of dollars” online after the 2020 election.

Ms. Powell and Trump-affiliated lawyer Rudy Giuliani once made regular appearances on Fox News to advance their baseless claims of election fraud. According to Jeremy Barr in an article titled Rudy Giuliani and Sidney Powell have disappeared from Fox airwaves dated January 14, 2021, that has all changed since the legal pushback by voting-technology companies. (here) For several weeks in November, the Trump duo were “an almost-daily presence on Fox shows, arguing that the president had been robbed of a second term by a fraudulent process that they claimed they would soon have the evidence to reveal.” But they have not appeared on any Fox cable news show in more than a month.

4. Dominion Comes Out Swinging

The complaint is a sprawling pleading of 124 pages with 167 footnotes referencing a broad range of sources including court rulings, social media commentary and televised news programs. Here are five extracts that will give you the substance and flavour of the allegations:

  • Although Powell assured the public during television and radio appearances that her claims were backed by “evidence”, Powell’s “evidence” included declarations from a motley crew of conspiracy theorists, con artists, armchair “experts,” and anonymous sources who were judicially determined to be “wholly unreliable.” One of Powell’s wholly unreliable sources was a purported “military intelligence expert” who has now admitted that he never actually worked in military intelligence, that the declaration Powell’s clerks wrote for him to sign is “misleading,” and that he “was trying to backtrack” on it. After he was discredited, Powell pivoted by presenting his declaration as having been written by a different anonymous source.
  • During some of her media appearances Powell also touted a shocking declaration from an “anonymous source” purporting to be a Venezuelan military officer alleging a decades-old conspiracy beginning with now-deceased Venezuelan dictator Hugo Chavez. But the explanation in the “anonymous witness’s” declaration for why he purportedly came forward was a near-verbatim recitation from another declaration put forward by Powell, proving that those witnesses did not write their declarations independently and raising serious questions about what role Powell and her team played in drafting the declaration.
  • Powell deliberately lied about having a video of Dominion’s founder saying he could “change a million votes, no problem at all.” Powell has never produced that recording because it does not exist.
  • As a result of the defamatory falsehoods peddled by Powell – in concert with like-minded allies and media outlets who were determined to promote a false preconceived narrative – Dominion’s founder, Dominion’s employees, Georgia’s governor, and Georgia’s secretary of state have been harassed and have received death threats, and Dominion has suffered enormous harm.
  • After Dominion sent Powell a letter putting her on formal notice of the facts and the death threats and asking her to retract her false claims, Powell doubled down, tweeting to her 1.2 million Twitter followers that she heard that “#Dominion” had written to her and that, although she had not even seen Dominion’s letter yet, she was “retracting nothing” because “[w]e have #evidence” and “They are fraud masters!” To ensure that her tweet would be published to the largest possible audience and inflict maximum harm on Dominion, Powell tagged some of her allies with massive Twitter followings, including Donald Trump, Georgia-based defamation attorney L. Lin Wood, and Powell’s client, Trump’s former National Security Advisor Michael Flynn.

In an article titled Dominion Voting Systems files defamation lawsuit against pro-Trump attorney Sidney Powell published in The New York Times edition of January 8, 2021, Alan Feuer described the complaint as “the most thorough debunking to date of the elaborate conspiracy theories that she and others, including President Trump, have been spreading since Election Day about Dominion’s voting machines.” (here)

5. Where is Rudy Giuliani?

Well, he has his hands full. On January 6, 2021, Mr. Giuliani addressed the crowd of Trump supporters at the White House before it stormed the Capitol reiterating baseless claims of widespread election fraud in the presidential election. “If we’re wrong, we will be made fools of, but if we’re right a lot of them will go to jail,” he said. “Let’s have trial by combat.” (here)

On January 11, 2021, the New York State Bar Association announced that it has received “hundreds of complaints in recent months” about Mr. Giuliani’s “baseless efforts” on behalf of President Trump to throw doubt on the veracity of the election. Mr. Giuliani’s efforts have included “the commencement and prosecution of court actions in multiple states without any evidentiary basis whatsoever.” These actions were all dismissed by the courts. The NYSBA has launched an inquiry to determine whether Mr. Giuliani should be removed from membership. “Mr. Giuliani’s words quite clearly were intended to encourage Trump supporters unhappy with the election’s outcome to take matters into their own hands,” the Association said. (here)

In New York state, authority over the conduct of lawyers rests with the Appellate Division of the Supreme Court of the State of New York and the discipline and grievance committees appointed by the court. (here) Removal from a state bar association before disbarment by the courts is extremely rare. “We believe the last time we removed a member who hadn’t been disbarred was 1904,” said Susan DeSantis, the chief communications strategist for the Association. According to Allan Smith, reporting for NBC News on January 11, 2021, Mr. Giuliani responded with a two-word text message. “Political act,” he wrote. (here) Yesterday, Mr. Giuliani said the remark was just a reference to a “very famous documentary” called Game of Thrones. (here)

6. Conclusion

In a public statement after the suit was filed, Mr. Poulos said the recent attacks on the democratic process are not isolated events. “They are the result of a deliberate and malicious campaign of lies over many months,” he continued. “Sidney Powell and others created and disseminated these lies, assisted and amplified by a range of media platforms.” (here) Last month, Dominion sent a series of letters to people including Mr. Giuliani and Fox media figures Lou Dobbs and Sean Hannity demanding they preserve any evidence they have. On January 11, 2021, during an episode of Sway, a podcast from New York Times Opinion hosted by journalist Kara Swisher, Mr. Poulos repeated that comment saying the suit against Ms. Powell is the “first step” in Dominion’s efforts to counter the “malicious campaign of lies” spread by right wing media outlets and the conspiracy theorists in President Trump’s inner circle. (here) Dominion is not ruling out anybody from potential legal action.

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