The photo caption in a previous version of this article incorrectly said the photo was from November 2019. The photo was taken in November 2020. The article has been corrected.
During the period between Election Day and Joe Biden’s win being finalized, Powell made all manner of claims about massive voter fraud. Not only that, she said she had proof — proof that was always seemingly right around the corner.
“President Trump won by a landslide,” she said at that infamous November 2020 news conference at the Republican National Committee. “We are going to prove it.”
“I’m going to release the Kraken,” she said around the same time.
Since then, though, Powell has found herself vulnerable to both financial penalties (being sued by voting machine companies Smartmatic and Dominion) and legal penalties, possibly including disbarment. And she has offered a very different take on the evidence she had.
In response to the voting-machine lawsuit, Powell’s legal team in March argued that “reasonable people would not accept such statements as fact” but, rather, merely as claims to be evaluated in court. She said she was merely serving as an advocate for Trump. She even said that her legal opponents calling her claims “wild accusations” and “outlandish” only reinforced that the claims were not to be taken at face value.
Now, Powell has filed another such document, in response to an effort to sanction her professionally, which a federal judge moved along last summer in a scathing ruling. And again, the big takeaway is that she’s backing off.
The big line, as first spotlighted by Adam Klasfeld, is when Powell and another Trump-aligned lawyer say the claims made were only “perhaps” true — but that they were legitimate because lots of people believed them.
“Millions of Americans believe the central contentions of the complaint to be true,” the filing says, “and perhaps they are.”
The filing also notes that “dozens of laws have been enacted by state legislatures in response to concerns similar to those raised in the complaint.”
That latter statement is most certainly true. But, as with the GOP push for rewriting such election laws, there’s a bit of a chicken-and-egg question. Republicans have indeed often justified those new laws by pointing to the perception of voter fraud and other irregularities, rather than actual proof. But that perception itself owes in large part to the efforts of Powell and her ilk. Polls suggest such claims caught on with a majority of Republicans despite the utter lack of substantiation or wins in court.
Powell’s filing goes on to say that “imposing sanctions on lawyers for bringing such challenges because they cannot prove their case before even filing the complaint cuts at the heart of our democratic process.”
That much could also be construed as true. But it also gets at the difference between sanctions and personal and political accountability. On one side is the question of whether Powell should face financial or legal penalties for her false claims, which is an open question for people more legally studied than us. On the other side is the fact that she’s effectively admitting that her claims — claims that undermined democracy and led tens of millions of Americans to distrust a presidential election result — were oversold in the first place.
Powell didn’t just file these lawsuits, after all; she assured that the Kraken was happening because this wasn’t just provable, but also that she had the evidence to prove it. Trump supporters who believed those claims should probably be pretty upset that she’s not putting her money and her legal career where her mouth was.
She could try to prove these claims when given these opportunities, such as through the discovery process in the voting-machine case. Instead, she’s acknowledging “reasonable people” would understand she was just saying stuff, and that “perhaps” it was true — which, by implication, means “perhaps” it was not. (It was, in many cases, objectively not.)
Later in the filing, Powell also repeatedly sort of backs off the idea that this was really about voter fraud.
“Plaintiffs suggested numerous ways in which [throwing the election to Biden] may have occurred in Michigan during the 2020 Presidential Election, among them widespread illegal double voting and massive dumps of illegal ballots,” the filing says. “But these were not the only objectionable procedures that Plaintiffs documented.”
It adds at another point: “Even if the portions of the affidavits the District Court found objectionable were removed, there is copious evidence of election misconduct well supported by the sworn affidavits of eyewitnesses and experts.”
It even argues that the case might have prevailed if fully aired ahead of Jan. 6, 2021, saying, “Whether Plaintiffs could have succeeded, had time not run out, we will never know.”
In other words, we’ll never know if the Kraken was real. And the people who were duped into believing it was — and still think it lurks beneath the surface — should probably take note.