A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.
Never Seen Anything Like This
Dominion Voting Systems’ billion-dollar defamation case against Fox News is unlike any defamation case I can remember.
You’ll recall that Fox News gave relentless air time in the weeks after Election Day 2020 to the bogus conspiracy theories that Dominion rigged the election against Trump, that its voting machines flipped votes from Trump to Biden, that the company was connected to vote-rigging by the late Venezuelan President Hugo Chavez, and that it paid kickbacks. None of those things is true.
Typically the meat of a defamation case happens early on when the defendant (in this case Fox News) tries to get the case dismissed on the grounds that the claim is insufficient as a matter of law. If that fails and discovery proceeds (as it did in this case), the defendant will take another big bite at the apple by filing a motion for summary judgment to end the case before trial on the grounds that it can’t be held liable as a matter of law.
But in this case, everything is turned on its head. The plaintiff, Dominion, has filed a motion for summary judgment, asking the court to rule in its favor and against Fox before trial, and yesterday it filed a partially redacted 40,000-word, nearly 200-page brief in support of its motion. The Dominion argument is that no reasonable juror could find Fox News not liable and that the evidence in so overwhelming that as a matter of law Dominion should win on liability now. The damages phase – how badly was Dominion hurt by the alleged defamation and how much does Fox News have to pay – would come later.
If nothing else, the massive filing with its firehose of damning evidence against Fox News sets Dominion up well to force Rupert Murdoch’s crown jewel into a settlement. The filing, especially the eminently readable 14-page introduction, targets a dual audience: the judge and people like me, who will write about it for people like you, heaping more bad PR on Fox News and making it want to settle.
Dominion’s brief offers an extraordinary inside look at Fox News based on months of depositions and endless text messages and emails, including amongst and between its three biggest stars: Sean Hannity, Tucker Carlson and Laura Ingraham. More on that momentarily.
Fox News, I should note, vigorously denies Dominion’s claims and filed its own brief yesterday arguing that it was engaged in legitimate reporting on newsworthy matters of great public interest.
“Dominion has mischaracterized the record, cherry-picked quotes stripped of key context and spilled considerable ink on facts that are irrelevant under black-letter principles of defamation law,” a Fox spokesperson said in statement.
Why Did Fox News Do It?
What prompted Fox News to collectively lose its mind and embrace the inane and implausible Big Lie conspiracy theories spouted by Sidney Powell et al.? I know, I know … it seems true to character. But Dominion has a theory of the case that is more compelling than Fox doing Fox things.
Fox News’ motive for going all-in on wackadoodle conspiracizing, Dominion alleges, was to do damage control. It had infuriated its audience on election night 2020 by being the first network to project Joe Biden as the winner in Arizona. In addition, Dominion alleges, Fox News was terrified that farther-right news outlets like Newsmax would seize on the disaffection of many Fox audience members to steal them away.
Dominion brings the receipts for its theory of the case, with the internal communications about the incensed Fox audience and the threat of Newsmax.
Fox going all in on the Big Lie to show its Trumpian bona fides and win back its audience is a rich plot detail that establishes motive in Dominion’s telling of the story.
As Cynical As You Thought … And Even More
Most of the news coverage of the Dominion filing has and will be about the startling revelations contained in the internal Fox News communications. Lots has already been written and more will be today on the things Fox News executives, journalists, and on-air personalities said privately about the crazy conspiracy theories that Dominion rigged the election against Trump.
NYT: Fox Stars Privately Expressed Disbelief About Election Fraud Claims. ‘Crazy Stuff.’
The Daily Beast: Fox News Stars Tucker Carlson, Sean Hannity Privately Trash-Talked Trump’s Election Lies
NPR: Off the air, Fox News stars blasted the election fraud claims they peddled
AP: ‘A complete nut’: Fox News hosts didn’t believe 2020 election fraud claims
Of greatest interest are the text messages among Sean Hannity, Tucker Carlson and Laura Ingraham. As presented by Dominion, they are cold, calculating, forever cynical about their audience, and well aware of what game they were playing. In Dominion’s telling, the primetime trio was aghast that Fox News called Arizona for Biden, angry that the news side of Fox News was trying to fact check the bogus Dominion claims, and deeply concerned that they would lose their preeminent position as a right-wing news outlet and hemorrhage audience to an upstart like Newsmax.
Important Jan. 6 Appeal Will Be Made Partially Public
The DC Circuit Court of Appeals will hear arguments Thursday over whether the Justice Department can access the contents of the phone of Rep. Scott Perry (R-PA) as part of its investigation into Jan. 6 and Trump’s scheme to overturn the election. And now part of those arguments will be in public.
The legal fight over Perry’s phone has been secret because it grows out of a grand jury investigation. What we do know, mostly thanks to good work from the legal reporting team at Politico, is that Perry lost his bid at the lower court but convinced the appeals court to put that ruling on hold while the appeal was pending.
The concern was that the appeal – both legally and historically significant – would also happen in secret. But yesterday the appeals court announced it would hear arguments on some aspects of the appeal – including on the Constitution’s Speech or Debate Clause – in public before closing the hearing for the remainder of the arguments. The request to make the oral arguments and the filings in the case public came from the Reporters Committee for Freedom of the Press.
The Speech or Debate Clause argument takes on extra significance now that former Vice President Mike Pence is preparing to cite it to avoid complying with a grand jury subpoena about Jan. 6.
A Lot Going On In Secret
CNN: Special counsel is locked in at least 8 secret court battles in Trump investigations
Eastman Still Eastmaning
Bloomberg: Trump 2020 Lawyer John Eastman Fights California Ethics Case
Follow The Money
The Daily Beast: Trump’s Shell Spending Scheme Comes Under DOJ Scrutiny
Trump Whistling Past That Graveyard
In case you missed it: No one was named in the excerpts of the special grand jury report released yesterday.
Fetterman Hospitalized With Severe Depression
Sen. John Fetterman (D-PA) was admitted Wednesday night to Walter Reed National Military Medical Center for inpatient treatment of depression, his office announced.
Main Justice Takes Over Probe Of Texas AG Ken Paxton
I don’t know what to make of this yet, via the AP:
Justice Department officials in Washington have taken over the corruption investigation into Texas Attorney General Ken Paxton, removing the case from the hands of the federal prosecutors in Texas who’d long been leading the probe. …
It’s the latest development in the federal investigation into the attorney general, who came under FBI scrutiny in 2020 after his own top deputies accused him of bribery and abusing his office to help one of his campaign contributors, who also employed a woman with whom Paxton acknowledged having had an extramarital affair.
Yet Another George Santos In the House GOP Conference?
Nashville’s NewsChannel 5 digs up the background of newly elected Rep. Andy Ogles (R-TN) and finds a series of exaggerations, embellishments, and resume padding.
Some Darwinian Shit
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