WASHINGTON — Donald Trump allies Sidney Powell and Mike Lindell used a court hearing Thursday to make clear they aren’t backing off baseless election fraud conspiracy theories — even as they argued for a judge to dismiss billion-dollar lawsuits that accuse them of defamation for pushing those very same claims.
Powell, Lindell, and former Trump lawyer and adviser Rudy Giuliani were all sued earlier this year by Dominion Voting Systems Inc, a private company that contracts with local governments to provide election software and equipment. The trio had spent the weeks after the November election promoting baseless theories that Dominion had been part of a scheme to rig the contest for President Joe Biden. The company took them to court.
A federal judge in Washington heard arguments Thursday on motions filed by Giuliani, Lindell, and Powell to have the cases tossed out. Giuliani’s arguments dealt less with the substance of Dominion’s defamation claim; he’s taking issue with how the company alleged it was harmed financially as a threshold issue. But lawyers for Powell and Lindell delved into the question of whether Dominion had cleared the bar at this stage of the case to argue they’d acted with “actual malice,” a key issue in defamation cases.
During the four-hour hearing, lawyers for Powell and Lindell indicated their clients continued to back the baseless statements about Dominion’s operations and the 2020 election that had landed them in court. These false claims had included that Dominion was founded to aid the late Venezuelan dictator Hugo Chavez in manipulating votes and that the company was part of a scheme to flip votes for Trump to Biden.
Powell’s lawyer Howard Kleinhendler, who worked with her on her unsuccessful post-election “Kraken” legal challenges, argued that Powell had relied on information from experts and that they weren’t “alleging out of thin air that the voting machines changed votes.” (There is no evidence that machines changed votes.)
“We are showing you some smoke,” Kleinhendler said.
Lindell continued to believe he was right about the election and would prove it, his lawyer Andrew Parker told the judge on Thursday, but insisted the forum for that was the “marketplace of ideas” and not a courtroom. Parker argued that Lindell’s position was bolstered by the fact that there were ongoing government investigations into the election, alluding to an effort led by Republican lawmakers in Arizona to examine ballots and voting equipment; that “audit” cannot change the outcome of the election.
Parker cited previous instances where various public officials had questioned whether electronic voting systems were vulnerable to being hacked. US District Judge Carl Nichols pushed back on that argument, saying that raising general concerns about election security and accusing a company of intentionally committing voter fraud were “just wildly different kinds of statements.”
Nichols is one of the newest judges on the federal district court in Washington, DC; he was nominated by Trump. Cases are randomly assigned to judges when they’re filed, and the fact that a case involves the president who appointed a particular judge is typically not grounds for recusal.
Powell and Lindell were in the courtroom on Thursday for the hearing; Giuliani was not. Earlier in the day, a New York court had suspended him from practicing law in the state because of the role he’d played in spreading lies about the election.
The malice issue leapfrogs the question of whether what Powell, Lindell, and Giuliani said was true or not, or if they were presenting information as their opinion, which would be protected against a defamation claim, as opposed to a fact. In defamation cases, “malice” is a specific legal term that refers to whether someone knew what they were saying was false, or acted with “reckless disregard” to whether or not it was true.
Kleinhendler argued Powell couldn’t have acted with malice because in speaking publicly and in her post-election lawsuits, she’d relied on affidavits signed by witnesses who claimed to have proof that the election was tainted by fraud and that Dominion’s systems could be used to manipulate votes.
At one point in the hearing, Kleinhendler referred the judge to some of the affidavits cited in those lawsuits, all of which were dismissed or withdrawn. He described the author of one, conservative activist Russell Ramsland Jr., as a “very, very reputable person”; according to the Washington Post, Ramsland spent years trying to convince unsuccessful Republican candidates to challenge their losses using his various theories of election tampering.
Nichols noted that at least some of the statements that Dominion alleged were defamatory weren’t part of Powell’s lawsuits, prompting Kleinhendler to return to his argument about the lack of malice. Nichols also questioned Powell’s theory that comments were immune against a defamation claim as long as they were also part of a pending court case, asking Kleinhendler if that was true even if the speaker was touting “patently false statements” they’d also made in court.
Dominion attorney Tom Clare argued that Giuliani, Lindell, and Powell had repeatedly presented their claims about Dominion as fact across multiple platforms, far beyond a courtroom.
“These were statements made in press conferences, in rallies, on social media, on television, including after the very lawsuits that they’re referencing to the court were dismissed and after United States district courts told the world that ... the sources of these allegations were wholly unreliable,” Clare said.
Sarah Mimms contributed reporting to this story.