Legal Warfare, the 2020 Election and Sidney Powell - Part Three
Part Three of the breakdown of legal attacks on conservative attorney Sidney Powell
(This series of articles originally ran at Stream.org as a five part series. See Part One, Part Two, Part Three, Part Four and Part Five. The articles are modified here and presented in three parts. I originally planned to present the series in two parts here, but the material is too voluminous for two parts and will be offered in three parts instead.)
Part One of this series provides background information on attorney Sidney Powell, the massive amount of law fare directed at her and included a brief overview of some 2020 election irregularities in Michigan to put the Michigan sanctions case in context. Part Two covered the $175,000.00 sanction imposed on Sidney Powell and her co-counsel by the federal judge in Michigan. This final installment covers the bar complaints and defamation suits brought against Sidney Powell, with a brief reference to the Georgia Indictment. Buckle up, because this is a wild ride.
The Bar Complaint Avalanche
A host of bar or ethics complaints were filed against Sidney Powell in the aftermath of the election cases she filed. A total of 19 bar complaints (technically called “grievances” under Texas law) were filed against Sidney Powell in Texas alone as a result of her efforts to challenge the 2020 Presidential Election results, with additional complaints in Michigan and Arizona. Importantly, complaints filed against attorneys in Texas, as in most States, are generally held confidential and only become public if the lawyer is found to be in violation of the ethics rules.
Sidney Powell confirmed for me that none of the complaints filed against her were filed by current or former clients. The complaints were all filed by individuals she did not represent and did not know. She confirmed she had to personally respond to roughly one dozen of the complaints by filing extensive briefs, exhibits and even replies and sur-replies. Powell reported: “It was a colossal waste of time and money caused by a purely political attack against me organized and funded by the Democrats. The Texas State Bar did not have a shred of evidence I violated any rule.”
The ethical rules applicable to lawyers vary from one state to the next, but generally in this context, the rules prohibit lawyers from presenting “frivolous” claims or arguments (claims or arguments having no merit whatsoever) and from making false statements of fact or law to a court. The ethics rules in Texas contain these general prohibitions and obligations (see Rules 3.01, 3.02, 3.03 & 8.04).
In March 2022, the Texas Commission for Lawyer Discipline filed a disciplinary petition in Texas state court against Sidney Powell based on ten (10) of the complaints filed against her, including the complaints filed by the Michigan Attorney General, Michigan Governor and Michigan Secretary of State. After fighting the case for roughly one year, including a massive production of documents and multiple depositions, the Texas judge dismissed the case in February 2023, due to the failure of the Texas Commission for Lawyer Discipline to present any evidence to support its claims. The Texas Commission appealed and in April 2024, the Court of Appeals for the Fifth District in Texas affirmed the dismissal of the case, stating “The absence of evidence demonstrating that Powell knowingly made a false statement of material fact or knowingly offered or used false evidence is fatal to the Bar’s claims.”
As Reuters reported:
Yet, what does this win mean for Sidney Powell? The win means a lot, in fact, it is as if the complaints were never filed. Texas Statute 81.072(o) provides once a formal disciplinary complaint is dismissed, and the dismissal becomes final, the attorney against whom the complaint was filed “. . . may thereafter deny that a grievance was pursued and may file a motion with the tribunal seeking expunction of all records on the matter . . ..” Expunction, also known as “expungement,” basically clears a person’s record of a charge. Therefore, once the judgment dismissing the complaint against Sidney Powell is final, for all legal purposes, it will be as if the failed complaints were never filed.
Texas Improves Ethics Rules
Apparently, enough lawyers in Texas understand the potential for the ethics procedures to be misused by activists, because the rules governing who may file a grievance against Texas lawyers changed. As of June 18, 2023, Texas law requires the person or entity filing a bar complaint against a Texas lawyer to be a client, former client, judge or attorney (in the legal matter involved) or other person with a "cognizable interest" in the legal matter at issue. Had this rule been in effect back in 2020, all but one of the ethics grievances filed against Sidney Powell in Texas would have been immediately dismissed. This change in the law will definitely curtail the ability of activists to file worthless ethics complaints against Texas lawyers.
The Michigan Complaint against Powell
When the Governor, Secretary of State and Attorney General of Michigan filed the ethics complaint against Powell in Texas, they simultaneously filed identical complaints in Michigan. As a result, the Michigan Attorney Grievance Commission filed an ethics complaint against multiple attorneys, including Sidney Powell, arising out of the Michigan election challenge. This Michigan ethics complaint is still pending. In fact, Powell informed me the Michigan case picked up as soon as the Texas complaint was dismissed. The Michigan ethics proceeding may be on hold now, while the Michigan Bar tries to resolve how it has jurisdiction over Powell who never practiced in the state of Michigan according to its rules.
Arizona too?
In Arizona, several attorneys who were not involved in any of the election litigation filed bar complaints against 21 lawyers, including Sidney Powell, for their efforts to challenge the 2020 Presidential Election in Arizona. Powell informed me the bar complaints in Arizona were rejected by two lawyers assigned to review them, but they are still pending review by a third attorney.
Sidney Powell was forced to hire lawyers in three States to defend these bar complaints at considerable expense. Defending these bar proceedings also consumes tremendous amounts of time (and these proceedings started even before Powell finished filing the four lawsuits). Finally, as virtually any attorney who was ever the subject of a disciplinary complaint will attest, the effort to strip an attorney of his or her law license, or otherwise subject the lawyer to discipline, causes the attorney significant stress, time and trouble. Worse still, in this case, most of the Texas complaints could not even be filed against Sidney Powell today. The resolution of the Texas complaint in her favor is a tremendous burden lifted, no doubt, but the complaints in Michigan and Arizona remain. Time will tell how they will be resolved. Powell expects the ethics complaints to be resolved in her favor, since, as she put it, “. . . it is obvious, except to those blinded by the politics of the Left” that she had “ample reasonable basis to file the lawsuits.”
The Defamation Suits
As noted previously, Sidney Powell (among others) is the target of defamation suits filed by Eric Coomer, a former Director of Product Strategy and Security for Dominion Voting Systems, by Dominion Voting Systems itself, by Smartmatic (another voting software company), by Venezuelan business man Majed Khalil and by an individual named Staci Burk in Arizona (who brought bizarre claims for damages arising out of challenges to the 2020 election and related activities). In the Dominion case and Smartmatic cases, the plaintiffs seek billions of dollars in damages for the alleged defamation. The Venezuelan businessman, Khalil, sought $250 million in defamation damages. These suits began with Coomer’s in early December 2020 and rolled out at nearly monthly intervals, “. . . as if coordinated to maximize headlines and bury me,” Powell observed.
These cases are extremely costly and time-consuming to defend. Defending the cases costs millions of dollars and countless hours, days, weeks and months of time. The cases are pending in far flung jurisdictions (Colorado, New York and Washington, D.C.) nowhere near Powell’s practice in Texas.
The Eric Coomer Case
Coomer, the former Dominion executive, sued multiple parties over statements and accusations, which were based on a sworn witness affidavit, that he participated in an Antifa-organized conference call wherein he supposedly ensured President Trump would not win the election. Though as Powell noted to me “Even though I recited only what sworn evidence in my hand showed,” her efforts to obtain dismissal of the Coomer defamation case were only partially successful, as the Colorado Court of Appeals dismissed the conspiracy claims, but none of the other claims. The case is expected to go to the Colorado Supreme Court. Coomer and Dominion also sued the non-profit Powell founded, Defending the Republic, even though it did not exist at the time the statements were made.
The Dominion Case
Dominion sued Sidney Powell in a 124 page complaint seeking $1.3 billion dollars in damages for defamation. In its lawsuit, Dominion contends Powell’s claims in broadcast media, print media and court proceedings to the effect that Dominion was created in Venezuela and its election software and hardware may be used to switch votes and manipulate elections were defamatory. Powell’s motion to dismiss the Dominion suit was denied by the federal judge hearing the case in Washington, D.C. Counter claims brought by Powell against Dominion for abuse of process were dismissed by the same judge. The case is currently being litigated.
The Smartmatic Case
Smartmatic originally sued Sidney Powell, former NYC Mayor Rudy Giuliani, Fox News and others in New York State Court seeking damages for defamation. Smartmatic contends Powell’s claims made in broadcast media, print media and court proceedings that Smartmatic’s elections system was used to hand the Presidential Election to Joseph Biden were defamatory. The New York State Court dismissed the claims against Sidney Powell on lack of “personal jurisdiction” over Powell (essentially that Powell did not have sufficient contact with the State of New York for it to hear the case). That victory was short-lived, as Smartmatic filed another suit against Powell for $2 billion in federal court in Washington, D.C. The case is currently being litigated.
The First Amendment to the United States Constitution and the United States Supreme Court’s decisions protecting Free Speech make the Dominion and Smartmatic cases more difficult to win. The landmark SCOTUS case New York Times v. Sullivan provides strong protection to speech directed to “public figures.” Under Sullivan, an allegedly defamatory statement about a public figure must not only be proved to be defamatory and untrue, but made with “actual malice,” that is “with reckless disregard of whether it was false or not.” A public figure is not limited to elected officials, but extends far beyond that to those with “influence over society” or even, in the case of limited public figures, includes one who “injects himself” into “public controversy.” The law in this area is complex and beyond the scope of this article, however, suffice it to say these principles should greatly complicate Dominion and Smartmatic’s claims, though the case is pending in the District of Columbia where virtually no conservatives received a fair trial since President Biden took office.
The Other Cases
Venezuelan businessman Majed Khalil filed his suit against Sidney Powell, former Fox Business host Lou Dobbs and Fox News in New York state court. Khalil contended statements made on the Dobbs’ Fox Business show by Sidney Powell were defamatory by falsely connecting him to Dominion Voting Systems and Smartmatic and the 2020 Presidential Election. The case was removed from state court in New York to federal court by the Defendants The federal court in New York dismissed the claims against Sidney Powell in Khalil’s suit, again, due to a lack of "personal jurisdiction" over Powell. Khalil did not file another suit against Powell and later, settled his claims against Fox and Lou Dobbs in a confidential settlement.
Finally, a truly bizarre claim in Arizona brought by Staci Burk against multiple Defendants, including Sidney Powell, is still pending. The third amended complaint filed by Burk alleges false imprisonment, assault, intentional infliction of emotional distress and other claims arising out of efforts to obtain election fraud data and evidence. Burk represents herself in the suit. This suit appears to be more of a nuisance than anything else, nevertheless, Powell must defend it in Arizona, which is burdensome and costly.
The simple fact is the multiplicity of claims and lawsuits would drain the resources of virtually anyone, other than a billionaire. Dominion and Smartmatic are big corporations with substantial resources and the willingness to litigate. Defending these multiple suits in distant jurisdictions would overwhelm most people. Defending the suits costs a fortune, consumes massive amounts of time and is physically and emotionally draining. Odds are, of course, that is why they were all filed against her.
A Word about the Georgia Indictment
In August 2023, Sidney Powell was one of 19 people, including former President Trump, indicted in the RICO case in Fulton County, Georgia. Powell swiftly moved to dismiss the indictment and litigate key issues that would benefit all defendants, but the motion to dismiss was denied (along with her many other pretrial motions). Shortly thereafter, Sidney Powell entered into a plea agreement to misdemeanor charges not made in the original indictment and pursuant to a provision of Georgia law that does not even create a conviction on the misdemeanors. Due to the plea agreement, and to the fact Powell agreed to be interviewed for this article, the Georgia indictment will not be discussed further. I did previously write about the Fulton County DA's indictment and the plea agreements entered into by four Defendants (including Sidney Powell), for those interested in more reading.
Conclusion
Sadly, the Left has abused the judicial process for years. Simply read Ms. Powell’s book Licensed to Lie: Exposing Corruption in the Department of Justice for a deep dive into that issue. It is beyond ironic that Sidney Powell literally wrote the book on everything she faced since 2020. Since the 2020 election, however, the Left exponentially expanded its assaults by abusing the legal system and judges failed to stop it. President Trump faced unprecedented baseless actions – as have former New York Mayor Rudy Giuliana, Professor John Eastman and others. Mayor Giuliani was already forced into bankruptcy by the lawsuits.
Sidney Powell played a significant role in efforts to challenge the 2020 Presidential Election results. For a few weeks after the election, she spoke out about the evidence she received, called for a real investigation and sought the truth of what happened in the election. For about two months, she pursued legal challenges to the election results in four States all the way to the United States Supreme Court. Immediately, she faced ethics complaints filed with State Bar Associations followed by efforts to sanction her and her co-counsel for the election lawsuits, along with defamation lawsuits from multiple parties in three States. The efforts against her rage on even now.
Most attorneys, in fact most people, would be beaten into submission by such merciless, relentless legal pummeling. I do not know if she was right about everything she said or did, but I admire her courage and tenacity. I can only imagine the pressure she was under to cave and to give up. Yet, Sidney Powell keeps smiling and moving forward. She stays on her feet and keeps fighting back, including through her organization Defending the Republic (where you may donate and/or sign up for the newsletters which people, including me, love to read). We may all learn important lessons from that. When all of the smoke clears and all of the attacks on her are over, let’s hope Sidney Powell comes out on top.
(My new book Fake News Exposed: 25 of the Worst Media Lies about Conservatives, Guns, COVID and Everything Else is out at Amazon. You may also pick up a copy of one of my other books at Amazon as well.)
Is Sidney Powell related to Donald Trump? Sure seems like they’re made of the same stuff.