by Noah Feldman
Sidney Powell, one of Donald Trump’s former lawyers, is being sued by Dominion Voting Systems for defamation. Her lawyers have entered a truly astonishing defense: that her statements alleging the Democratic Party stole the election using the company’s vote counting software can’t be defamation because no reasonable person would have believed them.
The defense is legally wrong. Her statements were clearly assertions of fact — and they were believed by many members of the public.
Nevertheless, it is a fascinating argument — an acknowledgement that any claim associated with Trump could be considered mere bluster, even when framed in factual terms. In short, Powell’s defense is to throw Trump under the bus. The basic idea: He is such a known liar that any assertion made on his behalf in an election can’t be taken as remotely plausible.
Under U.S. Supreme Court precedent, for statements to count as defamation, they must be susceptible of being proven true or false. Opinion statements are protected by the First Amendment from being made subject to libel law. Political opinion is especially protected.
Powell’s lawyers say that Colorado law (which they say should apply because it’s where Dominion is located) also separately requires the statements to be recognized as factual by a reasonable person. I am not at all sure that’s what Colorado law actually says. To me, it sounds much more like the Colorado courts think the way we know whether a statement is factual is to ask whether a reasonable person would find it so. But never mind the quibble. Powell’s defense claim requires her to assert that a reasonable person wouldn’t think her statements about the election being stolen using the Dominion voting software were credible.
The brief points out that Powell’s statements were made as part of Trump’s post-election campaign to overturn the result. It insists they were her opinions and legal theories — and, by extension, Trump’s. They were, the brief says, merely “claims that await testing by the courts through the adversary process” — as though promising to prove facts in court means those aren’t facts at all. The brief also shows screenshots of Powell on Fox News — as if to suggest that nothing said on Fox could be susceptible of being considered fact.
The thrust of the argument is that anything coming from Trump’s camp cannot be taken seriously as a factual statement. It was, Powell’s lawyers are saying, all rhetoric and opinion all the time, and reasonable people knew it.
You would think that the evident fact that many Republicans do believe exactly what Powell asserted would stand in the way of her argument. Not at all. Her lawyers imply either that those people aren’t reasonable, or else that they must be lying about what they think.
Both implications merit notice. Lots of Democrats think the Republicans who believe the election was stolen aren’t being reasonable. On the surface, that would seem to support Powell’s stand.
But on closer analysis, there’s a difference between believing something unreasonable is true and believing the statement is merely opinion of the kind that can’t be either true or false. Presumably the people who unreasonably believe the election was stolen really do believe that elections can be stolen as a matter of fact. So even by her own lawyers’ logic, that can’t be a reason to dismiss Dominion’s lawsuit.
More intriguing is the idea that people who say the election was stolen might not mean it literally as a matter of fact, but only as an expression of political sentiment. This theory is reminiscent of the observation, dating back to the 2016 campaign, that Trump’s supporters take him seriously but not literally while his detractors take him literally but not seriously.
I don’t think we should dismiss out of hand the notion that many Trump supporters are relativists, people who think there aren’t just truths and falsehoods out there but also alternative facts that correspond to political beliefs. Trump himself might believe a version of this vernacular relativism.
If we accepted that in politics, there is no category of factual truth, that would spell the end of libel suits on all matters connected to politics. The suit against Powell would deserve to be thrown out, as her lawyers urge. We would admit that Fox News isn’t peddling facts but only opinions. And that Trump isn’t so much a liar as a relativist who denies that truth itself exists.
Happily, we haven’t yet reached that point. The courts will reject Powell’s “it’s all opinion” defense. Now all we have to do is solve the problem of how to get people to believe the factual truth even when it doesn’t fit their political beliefs.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.
