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Fox producer's warning against Jeanine Pirro surfaces in Dominion defamation suit

Among the stars being questioned under oath for Dominion Voting Systems' defamation suit against Fox News are Tucker Carlson, Sean Hannity and Maria Bartiromo. Banners bearing their images hang from Fox Corp headquarters in New York City, first, second and fourth from left, respectively.
Erik McGregor
LightRocket via Getty Images
Among the stars being questioned under oath for Dominion Voting Systems' defamation suit against Fox News are Tucker Carlson, Sean Hannity and Maria Bartiromo. Banners bearing their images hang from Fox Corp headquarters in New York City, first, second and fourth from left, respectively.

The November 2020 email from an anguished Fox News news producer to colleagues sent up a flare amid a fusillade of false claims.

The producer warned: Fox cannot let host Jeanine Pirro back on the air. She is pulling conspiracy theories from dark corners of the Web to justify then-President Donald Trump's lies that the election had been stolen from him. The existence of the email, confirmed by two people with direct knowledge of it, is first publicly disclosed by NPR in this story. Fox News declined comment.

Pirro was far from alone in broadcasting such false claims. In the weeks that followed Election Day 2020, other prominent Fox stars, commentators and their guests heavily promoted them.

A repeat target was Dominion Voting Systems, the election machine and technology company. Trump and his allies alleged on Fox that Dominion was engaged in a conscious effort to throw the 2020 race to Joe Biden. They implied and falsely asserted on Fox programs that Dominion's machines and software either discarded Trump's votes or transferred them to Biden. Dominion argues their false claims were frequently egged on by Fox's own stars.

The producer's email is among the voluminous correspondence acquired by Dominion's attorneys as part of its discovery of evidence in a $1.6 billion defamation suit it filed against Fox News and its parent company. Dominion alleges it has been "irreparably harmed" by the lies, conspiracy theories and wild claims of election fraud that aired on Fox.

The role of Pirro - a former New York state judge and Westchester County district attorney - remains under sharp scrutiny. In 2019, Trump called for her return to the airwaves after the network publicly condemned her anti-Muslim remarks. In 2020, she attended Trump's belligerent address late on Election Night from the White House and advanced his arguments on the air in the days and weeks that followed.

On Nov. 14, 2020, for example, the day that Biden clinched his victory, Pirro questioned why vote counts shiftedagainst Trump over the course of Election Night in such states as Pennsylvania, Michigan and Wisconsin. (Some counties were counted later than others; ballots cast the same day were often tallied before those cast by mail.) "The Dominion Software System has been tagged as one allegedly capable of flipping votes," Pirro told viewers, as she promoted Trump campaign attorney Sidney Powell's "findings" on Dominion. (A federal judge in Michigan later officially sanctioned Powell for her actions in court on Trump's behalf after the elections, while the Texas state law bar is seeking to have her formally punished.)

Pirro was among those Fox hosts with increasingly tough talk ahead of the January 2021 certification of Biden's election win. On Jan. 3, 2021, Pirro compared those gathering to protest in Washington with Trump to the American soldiers in the Revolutionary War, adding, "Jan. 6 will tell us whether there are any in Congress willing to battle for America." That day led to bloody battles at the U.S. Congress. As one of his last acts in office, Trump pardoned Pirro's husband for two-decades-old convictions for tax evasion.

Dominion and Fox News' lawyers have clashed in recent days, as court records reflect the voting systems company seeks to convince the court to compel Pirro to testify over private texts that, it argues, are relevant to its defamation case.

As high-powered stars testify, high stakes come into focus

As the summer has unfolded, Fox's star TV news hosts such as Tucker Carlson and Sean Hannity have been grilled under oath. High-powered attorneys are bearing down on the Murdochs, the most powerful family in English-language media. And it's all part of an all-out legal war. Dominion is seeking to strip away the curtain protecting what happens behind the scenes at the nation's most watched cable news channel, which holds a singular role on the American political scene. The suit could also define what's fair game in journalism and politics in a democracy very much on the edge. The trial date is set for April of next year.

The fraud allegations, made without any tangible evidence, were repudiated by state and local elections officials, Republicans as well as Democrats, as well as Trump's own attorney general and cyber security chief. In more than 60 substantive court rulings, Trump's assertions were found to be groundless, with one limited exception. Fox News argues that it was covering inherently newsworthy claims by inherently newsworthy figures — including the nation's top elected official. It also points to segments where its reporters and news anchors cast cold water on the allegations.

Fox executives publicly say they will prevail

"Freedom of the press is foundational to our democracy and must be protected," a senior spokeswoman for Fox News said in a statement to NPR. She called the damages claims "outrageous, unsupported and not rooted in sound financial analysis, serving as nothing more than a flagrant attempt to deter our journalists from doing their jobs."

"All you're reporting to the public is that somebody — in this case, the president of the United States — has made the allegation of voter fraud by Dominion," Dan Webb, Fox News' outside attorney on the case, tells NPR. "I don't know how anything could be more newsworthy than the president of the United States making the allegation, and his lawyers making the allegations in court, because that's so fundamental."

Dominion ties the rhetoric about the company on Fox to harassment targeting its employees, "from software engineers to its founder and chief executive officer." Several received death threats.

In its legal filings, the company says it suffered "enormous and irreparable economic harm." Dominion says it projects losing profits of more than $600 million over the next eight years. As examples, it cites instances in which lawmakers in numerous states are demanding a review of existing contracts with Dominion; the cancellation of a $10 million contract in Stark County, Ohio; and Louisiana's recent cancellation of a process that prevents Dominion from securing a $100 million contract in that state.

Besides Carlson and Hannity, the list of Fox figures already questioned under oath in the cases includes former stars (Shepard Smith) and fallen stars (Lou Dobbs and Ed Henry), as well as show producers and programming executives, court records show. Dobbs left the network in early 2021, the day after Smartmatic, the electronic voting company, filed a closely related $2.7 billion defamation suit against Fox over similarly false claims about that firm made on Fox's airwaves.

In conducting the first interview of Trump after the election, Fox Business anchor Maria Bartiromo told Trump and her viewers, "This is disgusting, and we cannot allow America's election to be corrupted." In mid-December, Bartiromo announced that "an intel source" told her that Trump had won the election. She never followed up with any further material to substantiate that reporting. She is due to be deposed under oath on Thursday.

Asked by NPR whether Fox still considers Bartiromo a news anchor, and thus part of Fox's news and reporting division, rather than its opinion side, a network spokeswoman declined to comment. It is the first time Fox has not identified Bartiromo as a news-side journalist when directly asked by NPR.

Dominion "exploring" whether Fox staffers knew statements were false

In December 2020, while still a Fox Business host, Dobbs said opponents of President Trump throughout the government had committed "treason," and later suggested that any Republican who upheld President-elect Joe Biden's victory in the Electoral College may be "criminal."

The wide nets cast by Dominion in seeking depositions suggests, University of Georgia media law professor Jonathan Peters says, that the company's attorneys are "exploring the extent to which Fox personnel published false statements with knowledge of their falsity or with a 'high degree of awareness of their probable falsity,' (the relevant fault standards)."

"This usually takes into account such factors as what the personnel knew at the time they published, whether the sources were reliable, whether the defendant ignored clear signs that the statements were wrong, whether the defendant investigated the facts, and what motives shaped the statements," Peters writes in an email to NPR.

That assessment suggests that material uncovered by Dominion such as the producer's warning about Pirro could provide fuel for the voting machine company's case. While Pirro's weekend show did not air on Nov. 7, 2020, just after the elections, she returned to the air repeatedly. In January, Pirro was elevated to become a full host of The Five, Fox's popular weekday evening political chat show.

Dominion seeks links to Fox News executives and the Murdochs

Dominion has technically filed two cases — one against Fox News and the other against Fox Corp, its corporate parent. The second Dominion suit is bearing down on Rupert Murdoch and his son Lachlan, who together run the family's vast media holdings, which include the Wall Street Journal, the New York Post, and other newspapers and television properties in Australia and the United Kingdom.

Reporters for Fox and the Wall Street Journal repeatedly knocked down spurious allegations of voter fraud, demonstrating that such facts were known within the Murdoch media empire.

Together, the twin suits could theoretically reach multiple billions of dollars, with punitive damages along with financial damages. And of course, the cases carry great significance for the nation more broadly, as it captures the incendiary period between the heated claims of fraud about the November 2020 presidential elections and the ensuing bloody siege of the U.S. Capitol by Trump supporters two months later.

Defamation cases are generally hard to win in the U.S. and Peters says this one is no slam dunk. But given what's already known, he says, he'd rather be on Dominion's legal team than Fox's.

Dominion's attorneys have obtained emails, texts, WhatsApp messages and more, documenting how the network's executives and journalists behaved and acted behind the scenes, as well as determining what they actually knew about the claims, according to three people with knowledge of the litigation. Witnesses have been pressed about the degree to which the Murdochs and Fox News CEO Suzanne Scott were involved in making editorial decisions or kept in the loop.

Such decisions can be crucial: Fox's projection on election night 2020 that Biden would win Arizona, first of any major media outlet, conferred great credibility on the Democratic nominee's imminent victory. It also enraged Trump and his advisers, who unsuccessfully pressured the Murdochs to reverse the Fox decision desk's projection, according to three people with direct knowledge. The public call additionally alienated Trump's fans — many of whom were Fox's core viewers. For a time, they abandoned the network. The much smaller rival right-wing network Newsmax zoomed up from nowherein the ratings.

In the weeks that followed, key network stars' embrace and validation of the Trump camp's lies about the existence of election fraud contradicted some of their Fox colleagues' reporting that disproved it. Top leadership passively acquiesced in the star hosts' rhetoric, and took no meaningful steps to stop it, according to seven current and former journalists there. And the audience started to return.

Asked for comment by NPR, a Fox News spokesperson strongly denied this was the case. She emphasized that the talent involved "were covering the most newsworthy story of that period — the president of the United States claiming election fraud."

Fox: Nothing more newsworthy than a president's allegations of election fraud

The network's spokesperson has also pointed to periodic segments, mostly from its news reporters and hosts, challenging or even contradicting such claims from Trump allies.

The network and its parent company appear to be girding for a full court trial. In June, Fox hired Webb, who is the co-executive chairman of the powerhouse Chicago-based law firm, Winston & Strawn.

"This case is a relatively simple case," Webb tells NPR in an interview.

"The question there is whether or not Fox correctly reported the allegation [of election fraud], and they did," Webb adds. "I don't think there's any question that Fox accurately reported an incredibly newsworthy allegation made by the president himself."

Dominion wants Fox to apologize, but that risks offending Trump's fans

A comprehensive settlement, which outside legal observers initially suggested would be a possible outcome of the cases, does not currently appear likely, according to several people with knowledge of the litigation.

In theory, it would almost certainly require a payment by Fox of hundreds of millions dollars and an expansive apology — the latter being something that Fox News and Rupert Murdoch have, historically, been loath to do.

In 2020, Fox News reached a confidential, multimillion-dollar settlement with the family of the late Seth Rich, who was baselessly accused on Fox of having leaked thousands of emails from the Democratic National Committee before his killing in 2016. Such claims were groundless. Fox retracted in 2017 a story making that claim after a week, but never offered a public apology. The network's chief media critic covered the settlement in a minute-long segment on his Sunday show.

Murdoch expressed public contrition after it was revealed that people working on behalf of his British tabloid, News of the World, had hacked into the voicemails of a murdered schoolgirl — among hundreds of others of people. At the time, Murdoch was trying to salvage a $14 billion deal to take full control of a major British satellite television company. The deal was ultimately scuttled by U.K. regulators.

Election lies fueled the deadly Jan. 6, 2021 attack on the U.S. Capitol

Many observers have tied the lies about election fraud to the overheated rhetoric that fueled the siege of the U.S. Capitol building on Jan. 6, 2021, an effort to block the certification of Biden's victory. Lachlan Murdoch has sued the Australian political news site Crikey over drawing just that connection to Fox and the Murdochs. Press freedoms in that country are not as robust as they are here; defamation claims have historically proven far easier to prove there. Crikey's top editor says he welcomes the suit as a way to test Australia's defamation laws.

Former Australian Prime Minister Malcolm Turnbull argues that Rupert Murdoch, through Fox News, has done more to undermine American democracy than any other individual alive today.

"The biggest challenge to the United States is not Xi Jinping or Vladimir Putin. It's the animosity, the division, the anti-democratic movements within the United States itself," Turnbull told NPR's Ari Shapiro on All Things Considered. "Fox News is not the only source of this madness, but it is by far the single most influential one."

In reply, Fox Corp. spokesman Brian Nick points to Fox News's dominant ratings among cable news channels, and the network's strong appeal to Democrats and independent voters, as well as Republicans.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

David Folkenflik was described by Geraldo Rivera of Fox News as "a really weak-kneed, backstabbing, sweaty-palmed reporter." Others have been kinder. The Columbia Journalism Review, for example, once gave him a "laurel" for reporting that immediately led the U.S. military to institute safety measures for journalists in Baghdad.