Dominion settles. Next!

April 19, 2023

          Dominion Voting Systems settled its defamation claims against Fox News for $787.5 million—the largest defamation settlement in history. But the settlement disappointed many (including me) because it contained no apology or retraction by Fox News. In a carefully crafted statement, Fox only acknowledged findings by the trial judge that Fox News made “certain” false claims. It is not clear whether the trial judge will continue his investigation into whether Fox and its lawyers misled the court in failing to adequately respond to discovery requests.

          The Dominion Voting Systems case was a rare breed: The public had a vested interest in the outcome of a private lawsuit. Unfortunately for the public, Dominion was seeking to vindicate its business and economic interests, not the public interest. In accepting 50% of its damage claim, Dominion acted rationally to protect its financial interests. Although actual figures are not available, it would be reasonable to assume that Dominion invested $50 million in preparing the case for trial and was facing another $20 million to bring the case to verdict. Despite Dominion’s strong legal position in the case, it risked recovering nothing if a handful of jurors did not believe that Fox News acted with “actual malice.”

          Fox’s legal problems are not over. A second voting machine company—Smartmatic—has a $2.7 billion defamation claim pending against Fox and hosts (and guest) Lou Dobbs, Maria Bartiromo, and Rudy Giuliana. See The Guardian, Fox News braces for more turbulence as second defamation lawsuit advances.

Smartmatic will benefit from the discovery obtained by Dominion and more. Fox and its hosts defamed Smartmatic with more than a hundred false statements that are detached from reality. For example, Fox claimed that Smartmatic was “founded in Venezuela at the behest of corrupt dictators” when, in fact, it was founded in Florida in response to the “hanging chad” fiasco of 2000.

          Even in settlement, Fox has continued to mislead its viewers, saying that the settlement “reflects Fox’s continued commitment to the highest journalistic standards.” Unlike other news outlets, Fox devoted only six minutes of coverage to the settlement. In a story on its news homepage, Fox included a statement that described the lawsuit as “media fodder.”  

          Americans who yearn for responsible news media should take some solace in the settlement. Three-quarters of a billion dollars is a significant amount of money, even for a company that generates billions in profit each year. Outlets that reach Fox viewers in other venues are reporting on the settlement and the sordid details revealed in discovery. Indeed, in Arizona, ground zero for the Big Lie, the “AZCentral” news website led with a lengthy article detailing the evidence that contradicted Fox’s claims of election fraud. See AZCentral, Fox News settlement made CNN’s Jake Tapper laugh, an ‘embarrassment’.

          Other claims against Fox and Trump will continue to wend their way through the legal system. E. Jean Carroll’s rape/defamation case against Trump is set to start next week in Manhattan. The phalanx of lawyers who were sitting in a Delaware courtroom for the Fox trial will decamp for Manhattan to hear about Trump’s sexual assault on E. Jean Carroll. Trump has the option of attending the trial (or not) but has yet to inform the court regarding his intentions. It must be an excruciating choice for Trump, whose instincts will compel him to attend so that he can glare at E. Jean Carroll. But he will chafe at the court-imposed restrictions on his ability to speak (let alone interrupt and bloviate).

          Litigation is a blunt instrument ill-suited for achieving finely tuned results. Here, Dominion Voting Systems fought the good fight and brought the harsh light of truth into the Fox newsroom. That is an accomplishment worth lauding, even if our fantasies about the cross-examination of Tucker Carlson and Rupert Murdoch remain unfulfilled. Smartmatic may have deeper pockets and a bigger reputational injury to vindicate. And the presence of individual defendants—Dobbs, Giuliani, and Bartiromo—will complicate life for Fox News. Indeed, it is possible that the finger-pointing among the defendants has begun—which can only be good for the effort to expose the truth. Stay tuned!

Justice Thomas offers a risible defense for failing to disclose real estate transactions.

          As noted in yesterday’s newsletter, Justice Clarence Thomas failed to disclose three real estate transactions with GOP megadonor Harlan Crow. Thomas (or his surrogates) have leaked to CNN an excuse that is so pathetic it is either (a) a lie or (b) irrefutable proof that Thomas is unfit to serve on the Court charged with interpreting the Constitution. See, e.g., Eugene Robinson, WaPo, Opinion | Clarence Thomas’s disclosure form explanations are laughable.

          Here are the facts: Thomas entered into three real estate transactions with Harlan Crow in 2014. At the end of 2014, he completed a disclosure form that required him to list “Transactions” in the preceding year. The form is here Clarence Thomas Disclosure Form 2014 (See page 5/8, column D). Per the current filing instructions for the disclosure form, a “transaction’ is “any purchase, sale, or exchange of any property or asset.” If the amount of the “transaction” exceeds $1,000, it “must be reported.”

          The real estate transactions between Harlan Crow and Justice Thomas aggregated to an amount in excess of $100,000. Clearly, on the face of the form and consistent with the instructions, Thomas was required to disclose the real estate transactions in 2014. But Thomas told CNN

[He] believed he didn’t have to note the real estate deal because he lost money on it, calling it an “oversight” that he didn’t report the transactions in the first place and noting the justice fills out his disclosure forms with the help of aides.

          Thomas’s explanation is ludicrous. By way of example, if he purchased a property for $10 million in 2013 and sold it to Harlan Crow in 2014 for $10 million, he wouldn’t have to report a $10 million transaction because “he didn’t make any money” on the transaction. Of course, the definition of “transaction” on the form says nothing about “profits or losses,” but instead merely refers to any “purchase or sale.”

          If Thomas was incapable of reading the instructions on the disclosure form, he is unfit to interpret the Constitution. Of course, Thomas is gaslighting the American public. He tried to conceal the transactions and got caught. Rather than acknowledge that he violated federal law, he is fabricating nonsensical excuses—which are being lapped up by Republicans who do not care about integrity, honesty, and fealty to the Constitution so long as Thomas delivers on their conservative social agenda. See Reuters, Top US Senate Republican backs U.S. Supreme Court chief amid calls for Thomas probe.

          Expand the Court. That is the shortest path to rehabilitation of a corrupt institution.

Florida.

          A reader posted a Comment about a mayoral run-off in Jacksonville, Florida, which is currently the nation’s most populous city with a Republican mayor. Donna Deegan is the Democratic candidate in the general election, which is scheduled for May 16^th. Deegan is polling ahead of her DeSantis-backed Republican opponent. The reader says that Donna Deegan is “an amazing candidate and a three-time breast cancer survivor” who has started two philanthropic endeavors. Deegan is a former political and investigative reporter.

          Deegan’s bio and campaign website are here: Donna Deegan for Mayor. She is looking for volunteers (here: DuvalDems / Duval County). If we are going to turn Florida blue, we need to start at the local level! Help out Donna Deegan if you can!

          Meanwhile, Ron DeSantis is having trouble convincing members of Florida’s congressional delegation to refrain from endorsing Trump. Indeed, as DeSantis was visiting DC to garner support from Florida’s congressional delegation, one of them released a statement saying he had a lovely meeting with DeSantis and was (therefore?) endorsing Trump. See Talking Points Memo, Editor’s Blog, Where Things Stand: Didn’t Know Florida Could Be So Cold.

          Per TPM, not a single member of the Florida congressional delegation has endorsed DeSantis—a slap in the face for a former member of Congress who served with several members of the current Florida delegation.

Oklahoma.

          You have probably heard about the journalist in Oklahoma who left a recording device in a public meeting room where he suspected that county commissioners continued to conduct county business in violation of the state’s Open Meetings Act. When the journalist listened to the recording, he was horrified to learn that the county commissioners discussed killing the journalist and disposing of his body. The commissioners also made racist comments about Black citizens of the county and expressed regret that lynching is no longer acceptable. See The Hill, Oklahoma governor calls for resignations after county officials reportedly discussed killing journalists, hanging Black people.

          After three days of silence, the county sheriff (who participated in the talk of killing the journalist) posted on the sheriff’s Facebook page to announce that he is investigating felonies relating to the alleged illegal taping of a county commission meeting. See KENS5, Oklahoma sheriff says recording of killing talk was illegal.

          Got that? The sheriff is concerned that the recording of talk about killing a journalist is a crime but is apparently not concerned about the plans to kill the journalist—in which the sheriff participated.

          State officials have called on the sheriff and the county commissioners to resign. Because they live in a bubble in a rural county in Oklahoma, the sheriff and commissioners are laboring under the impression that they can control events. They are sorely mistaken. They are being investigated by the FBI, the Oklahoma Bureau of Investigation, and the Oklahoma Attorney General’s office. The sheriff can go through the motions of making a criminal referral for the illegal recording, but his time would be better spent interviewing criminal defense counsel.

          Apart from the jaw-dropping “can-you-believe-it” nature of this story, it illustrates the challenges that many Americans face when they live in cities or counties controlled by corrupt politicians. Those politicians begin to believe they are immune from accountability—see the clueless sheriff’s Facebook post—and act as if they are above the law. All that it took to break that cycle of tyranny was a single news article with undeniable facts documenting the corruption.

          At a time when Fox News is disgracing the First Amendment by spreading lies under the guise of freedom of speech, other journalists are upholding the spirit of the First Amendment by holding government officials to account. The reporters who broke the story are Chris and Bruce Willingham for the McCurtain Gazette-News. The Gazette has no online presence; if any readers subscribe to the Gazette and can share a mailing address, I would like to share that address with readers of this newsletter so we can thank the reporters who broke this story.

Concluding Thoughts.

          On Wednesday, by 11:59 PM, the Supreme Court is scheduled to release an order regarding Judge Kacsmaryk’s ruling revoking FDA approval of mifepristone. If the Court correctly applies the law to the facts, it will stay the effectiveness of Kacsmaryk’s ruling until the Fifth Circuit and Supreme Court can hear the matter on full briefing. Leaving any aspect of Judge Kacsmaryk’s ruling in force would be a judicial abomination.

          The dynamic on the Supreme Court has—of late—resembled out-of-control county commissioners who see themselves as self-ordained demigods sitting above the law. As Justice Thomas issues risible and insulting excuses for flouting disclosure requirements, five religious reactionaries on the Court pretend that they are not imposing their theology on the rest of America. Before we can begin to undo the damage inflicted by this Court, we must be candid about its root cause—the packing of the Court with justices willing to put their religious faith and morals above the Constitution in violation of their oaths.

          I hope that the Court will do the right thing and put a stop the madness unleashed by Judge Kacsmaryk. If it does not, I hope that Americans will treat the ruling for what it is—a broadside attack on the equality and liberty of women everywhere. What happens tomorrow isn’t about politics; it isn’t about access to abortion; it is whether America will recognize the autonomy and authority of women over their own bodies.

          So, when the decision is issued tomorrow, try to ignore the immediate “inside politics” spin about the decision and focus on the change (if any) in the personhood of women under the Constitution. Starting from that point will help us determine the path forward.

          Stay strong! Talk to you tomorrow!