The ‘Pathetic’ Genesis of a Fake News Story

In a headline clearly designed to prompt outrage, CNN recently claimed that “Sidney Powell argues in new court filing that no reasonable people would believe her election fraud claims.” Similarly, CBS News asserted that “Sidney Powell tells court ‘no reasonable person’ would take her voter fraud claims as fact.” The implication is that Powell, one of the most prominent critics of the 2020 presidential election, who has been outspoken in her claims that Joe Biden’s victory was secured through outright fraud involving, in particular, illegal and malicious manipulation of the vote-counting machines, has now repudiated those claims.

Clearly responding to that implication, Representative Peter Meijer of Michigan, one of the Republicans who voted to impeach Trump in January, tweeted that Powell’s argument was “pathetic.” He further elaborated that it was “absolutely infuriating” that “Sidney Powell misled millions claiming stolen elections. Now Powell backtracks saying ‘no reasonable person’ wld (sic) believe what she *ALLEGED IN COURT* were ‘statements of fact’!?!”

What is pathetic here, however, is that CNN, CBS, and Representative Meijer are the deceivers.

Powell has not, in any way, retreated from her claims. In spite of the assurances to the contrary from Democrats and the mainstream media, uncertainties remain about the integrity of Biden’s election as president. Prominent among these is the operation of the software and hardware provided by the “election infrastructure company Dominion Voting Systems,” which has sued Powell for defamation for her public assertions that Dominion’s machines were used as instruments of fraud.

Unadjudicated Claims

Truth would be a defense for Powell to use to win the defamation lawsuit, and a careful reading of the pleading to which CNN and Meijer refer would make clear that Powell still believes her claims to be true (giving the lie to Representative Meijer’s observation and the implication of CNN’s and CBS’s headlines).

Nevertheless, it is accurate that the filing by Powell’s attorneys in the defamation lawsuit did assert that when Powell made her charges of election fraud involving the Dominion voting systems, she made clear that she was asserting opinion rather than fact, as her charges remained to be proved, and the evidence on which she relied for her assertions (which was spelled out in detail by Powell at the time) still had not been authenticated in a judicial setting. 

The explanation for this seeming anomaly (that Powell believed and still believes that fraud took place and her lawyers’ assertion that she was only asserting opinion) is that for Dominion to succeed in its libel case against Powell it would have to prove that she knew what she was asserting was false, and that, indeed that falsity was a matter of fact she consciously or recklessly malevolently presented as something it was not. 

Her lawyers, in other words, were simply making a highly technical legal argument that at the time Powell made the statements in question they could only be matters of opinion, and the statement of an opinion is not a statement of fact and therefore could not be grounds for a defamation action. This is not the easiest point to grasp, but any reading of the whole pleading by anyone with legal training should have made it evident.

Playing to the Narrative

The narrative that Powell, one of President Trump’s strongest defenders, is a shameless and hypocritical villainess must be one that appeals to the anti-Trump animus that still dominates the mainstream media. Perhaps it is the attempt to fit that narrative that explains what has happened here. Thus, CNN, CBS, Meijer, and countless others who have embraced this narrative and see it as confirmation of their view that Biden’s election was legitimate, have taken something out of context in order themselves to perpetuate a falsehood. Thus is “fake news” born.

It is unclear at this point whether this particular legal proceeding will reveal whether or not there was misconduct involving the Dominion machines, as the purpose of the pleading filed by Powell’s lawyers was to dismiss the claim for failure to properly state a case for defamation, or to shift the proceedings to Colorado, the home of Dominion Systems, and away from the District of the Columbia, where the case was originally filed. Indeed, anyone who reads it will see that the bulk of this document was devoted to the reasons why trial in Colorado would be more appropriate, and the paragraphs upon which CNN, CBS, and Meijer apparently relied were not the crucial ones.

As I have argued in this space before, the American people should still demand a full airing of the disputed fairness of this last presidential election—an airing that has yet to take place. Truth ought still to be the most important thing in our lives and our politics, but truth is not advanced by assertions such as those made by CNN, CBS, and Representative Meijer.

About Stephen B. Presser

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.

Photo: Tom Williams/CQ Roll Call

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