The Week Ahead
[What I’m listening to today: I stumbled across cellist Yo Yo Ma’s 2015 live performance of Bach’s six Cello Suites from the Royal Albert Hall on YouTube, a total joy to listen to while writing.]
It’s another big week.
First up, you may have seen reporting last week about an explosive pleading filed by voting machine manufacturer Dominion in its defamation lawsuit against Fox News. Dominion is seeking $1.6 billion in damages. Dominion’s lawsuit was filed in March 2021 in the Superior Court of Delaware. It’s now scheduled for a jury trial in April.
Dominion filed a motion seeking summary judgment, in essence a ruling from the court that no trial is necessary because the evidence is so clear that there are no factual issues to resolve. If the Judge were to grant the motion, the only issue left to resolve would be the amount of damages Dominion is entitled to. But Fox still has the opportunity to respond, so a ruling isn’t expected immediately. However, with this bombshell of a brief now public and the trial imminent, we may see signs this week of where the case is headed, which makes it important to understand the allegations, where the case is procedurally as of now, and what Dominion has to prove to prevail.
Whether the Judge will grant summary judgment in favor of either party (Fox could file what’s called a cross-motion for summary judgment, asking the court to rule in its favor without requiring a trial) is still up in the air. But could we see a settlement out of court in the works? Or will we actually see a trial in this case, with the prospect of familiar Fox News hosts taking the witness stand and raising their right hands before they testify?
The core of any defamation case is the requirement that a public figure plaintiff, here Dominion, prove by a preponderance of the evidence (that it’s more likely than not) that the defendant (Fox) acted with actual malice when they said or printed whatever the plaintiff alleges was defamatory. To establish that a defendant acted with actual malice, the plaintiff has to show either: (1) that the defendant knew the statements were false, or, (2) they acted with reckless disregard of their truth.
Defamation cases are difficult; it’s hard to prove actual malice. But Dominion’s brief suggests it has evidence that Fox was actually aware, when it reported Trump and his lawyers’ allegations about a supposed Dominion role in voter fraud in the wake of the 2020 election, that it wasn’t true. The wild conspiracy theory claimed Dominion flipped millions of votes from Trump to Biden and took kickbacks, going so far as to suggest there was a link to Venezuela’s former president Hugo Chávez (who, by the way, died in 2013).
A Fox spokesperson said the Dominion filing “takes an extreme and unsupported view of defamation law and rests on an accounting of the facts that has no basis in the record.” Dominion has put together a fact-checking page that methodically refutes the wild conspiracy theories that circulated.
The pleading Dominion filed last week contained evidence, including text messages from Fox hosts like Tucker Carlson, Laura Ingraham, and Sean Hannity, that they say proves actual malice. The brief also details Dominion’s evidence that corporate executives were in the loop, concerned that Newsmax and other conservative outlets would peel off viewers from Fox if they didn’t continue to present Trump’s fake claims that he’d won as the truth.
Some of the communications Dominion says it has evidence of include:
Tucker Carlson writing to Laura Ingraham on November 18, 2020: “Sidney Powell is lying by the way. I caught her. It’s insane.”
Ingraham is said to have responded: “Sidney is a complete nut. No one will work with her. Ditto with Rudy.”
Carlson and Hannity discussing whether the network should be encouraged to fire a fact checker who evaluated a Trump tweet that pushed some of the untrue claims about Dominion. Dominion says Carlson told Hannity, “Please get her fired. Seriously….What the f***? I’m actually shocked…It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.”
Dana Perino called Trump’s theory of how fraud had cost him victory “total bs,” “insane,” and “nonsense.”
Chris Stirewalt, then-Fox News politics editor, testified in his deposition that he believed, shortly following the election, that “there was no way anybody could think that Donald Trump had really won.”
The Delaware Superior Court Judge assigned to the case is Eric M. Davis, who has served as a judge for 12 years. He is a former corporate attorney. Delaware is the jurisdiction where lots of high-end corporate lawsuits are filed, because many companies are incorporated in the state, due to its lenient tax laws. That means Delaware’s state bench is used to handling complicated matters like this. Judge Davis has a reputation for being evenhanded and more than up to the challenge of a complicated case like this one, with serious First Amendment implications involving Fox’s right to report the news.
There is a separate case, involving voting machine manufacturer Smartmatic, that is also in the offing in front of Judge Davis.
Few people believed these lawsuits could succeed when they were first filed because of the heavy burden plaintiffs bear. But with the Dominion trial set for April, it’s definitely one to watch. This is Dominion’s lawsuit seeking damages from Fox’s alleged defamation of its business. It will not address any sort of larger concerns people may have about Fox’s impact on the public square. It is nonetheless highly significant in exposing how people at the network viewed the reporting their viewers saw in the run up to January 6.
Wisconsin: The Washington Post’s Jen Rubin writes, “State supreme court primary races don’t usually draw national attention—but with little else on the political calendar and hot-button issues in a critical swing state at stake, national media and political operatives have their eyes on Wisconsin’s Tuesday election. Meanwhile, out-of-state money has poured in, likely making it the most expensive judicial race ever.” Depending on who wins an open seat in the primary, Wisconsin’s court could flip from conservative to progressive, with impacts on issues including voting and abortion. It’s a surprisingly important race all of a sudden.
On Thursday, issues involved in some cryptic reporting by Politico on sealed matters before the DOJ grand jury investigating January 6 could come to a head. The issue involves Congressman Scott Perry’s (R-Pa.) phone, which, Politico reported in January, DOJ had obtained permission to search from the district court, before it was blocked by the court of appeals. There is an oral argument set on February 23.
Perry was an important ally to Trump in the run-up to January 6. Among other things, Perry introduced him to the DOJ environmental lawyer Jeff Clark, who Trump briefly contemplated appointing as attorney general to push the fake fraud narrative until he was forced to back down in the face of threatened resignations by top DOJ officials. Politico reported that the oral argument will follow months-long, sealed litigation, based on two anonymous sources familiar with the litigation. Perry’s phone could be a gold mine for prosecutors.
Read Politico’s full report here.
Also this week: The GOP-led House Judiciary hearing is holding a border hearing in Yuma, Arizona. Democrats aren’t planning on attending.
If Republicans wanted to engage in serious conversations about immigration reform, they could do that, instead of scheduling last-minute hearings. This is purely performative build-the-wall stuff. Expect a photo op. It’s probably still a bit too early in the election cycle to hear talk of caravans of criminals creeping up on our southern border, but that, too, is sure to come in time.
Friday is the first day a Texas federal judge appointed by Trump, and with strong anti-abortion leanings, will have the opportunity to decide whether to impose a nationwide ban on mifepristone, a drug widely used for abortion and miscarriage. Conservatives judge-shopped to get Judge Matthew J. Kacsmaryk assigned to the case by bringing it in a division where he is the only Judge assigned to hear cases. If he bans the drug, the appeal will be heard by the conservative 5th Circuit, before it heads to the Supreme Court.
All of the parties’ briefs will be in on Friday, opening the door for Judge Kacsmaryk to rule then, although he could take longer to consider the submissions. Conservatives are preparing for a win, which would dramatically impact access to abortion in states where it is still legal, as well as necessary care for miscarriage.
Republicans spent the four years of the Trump administration objecting to the use of “nationwide injunctions” obtained from a federal judge in one district to set the law nationwide. Then Attorney General Jeff Sessions notoriously complained about a federal judge in Hawaii who blocked Trump’s anti-Muslim travel ban, saying, “I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power.” Bill Barr was similarly vehement in his condemnation of this type of ruling.
Apparently, Republicans are willing to drop their concerns, now that the shoe is on the other foot.
We’re in this together,
Joyce
I once had to prove to my former mother in law that "offing" was a real word. She wouldn't believe me until one day she heard someone say it in a sentence. She called to tell me.
I heard a rumor that maybe an indictment could come down in Georgia Monday on , you know, President's Day. Wouldn't that be a hoot.
That could certainly screw up somebody's golf outing....just saying. The end.
I am aghast that in 2023 we are having a discussion about sneaking women critical medicine in an underground market.