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      Did Fox News Just Pay for the Privilege of Continued Corruption?

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      In many legal settlements, both sides declare victory. The settlements themselves are often confidential, or are for amounts so far below the plaintiff’s original demand that a defendant can argue, with a straight face, that he settled essentially to make the case go away. Rather than deal with the risk of a rogue jury, defendants can settle for a reasonable sum and then often, in exchange for the cash, gain the silence of the plaintiff. The public, to the extent it cares, is left to argue over what “victory” truly meant.Not so with Dominion’s settlement against Fox. The moment the amount of the settlement emerged — $787,500,000 — I knew that Dominion had won and Fox had lost, and it wasn’t even close. The reason was clear to anyone who’d followed the case carefully: Damages, not guilt, were the weakest part of Dominion’s case. It had asked for $1.6 billion in damages, based in part on a theory outlined in the complaint that Fox’s “viral disinformation campaign” had “destroyed the enterprise value of a business that was worth potentially more than $1 billion.”To call that claim speculative is an understatement. According to a 2020 report in Forbes, Dominion had been paid $118.3 million for its election services between 2017 and 2019. I’ve litigated lost profit/lost enterprise value cases, and I know how difficult it is to prove estimated future financial fortunes.In other words, it was going to be straightforward to prove that Fox employees lied and deliberately platformed lies. It was going to be much harder to prove the kind of damages that Dominion claimed. Then, in the settlement, Fox paid Dominion a sum larger than Dominion could reasonably presume a jury would require. Why?This brings us to the difference between justice and accountability. The legal system can achieve justice when an aggrieved party is made whole. And make no mistake, Dominion received justice. It was more than made whole for Fox’s lies, and its quest for even more justice continues. Its lawsuits against OAN, Newsmax, Sidney Powell, Rudy Giuliani and Mike Lindell are still pending.But accountability is different. Accountability occurs when the people responsible for misconduct — and not merely their corporate bank accounts — experience proportionate consequences for their actions. One of the #MeToo movement’s greatest achievements was exposing to the world the degree to which corporations essentially paid for the privilege of continued corruption. They’d write checks to the survivors of abuse (granting them justice) without taking action against the abusers (enabling them to avoid accountability).This is not a critique of the plaintiffs at all. They need justice, and they don’t have the power to impose accountability. They can’t mandate that corporations apologize or terminate employees without the agreement of the corporation. The system itself can generally only give them money. Do we want to ask people who’ve been harmed by misconduct to delay or risk their own quest for justice for the sake of using the settlement process to mandate apologies or terminations that the courts don’t have the power to compel?The end result, however, is a system whereby wealthy institutions can essentially build in their corruption as a cost of doing business. In 2021, for example, my wife and I published a report detailing years of sexual abuse at one of the largest and most prominent Christian summer camps in America, Kanakuk Kamp. The pattern there was clear: pay survivors, get them to sign confidential settlements, and continue on with the same leaders who had abjectly failed to protect the kids in their care.The Fox settlement reeks of justice without accountability. Not only is Fox not publicly apologizing for its misconduct, it has released deceptive descriptions of the settlement and the court’s findings. Its initial statement said in part: “We acknowledge the court’s rulings finding certain claims about Dominion to be false. This settlement reflects Fox’s continued commitment to the highest journalistic standards.”That is not what the settlement reflects. The settlement reflects Fox’s abandonment of even the most minimal journalistic standards.Fox’s “news” story about the settlement was perhaps even worse. The headline stated that “Fox News Media, Dominion Voting Systems reach agreement over defamation lawsuit,” but it didn’t state the amount of the settlement and instead mainly focused on the judge’s compliments of Fox’s legal team. No, really:Delaware Superior Court Judge Eric Davis, who was overseeing the defamation lawsuit, praised both parties for their handling of the case.“I have been on the bench since 2010. … I think this is the best lawyering I’ve had, ever,” Davis said, adding, “I would be proud to be your judge in the future.”No mention, of course, that less than a week before, the same judge rebuked Fox’s lawyers, said he was concerned about “misrepresentations to the court” and lamented, “What do I do with attorneys that aren’t straightforward with me?” And then the Fox story ends with this howler of a paragraph:Then-President Donald Trump and his allies fiercely challenged Joe Biden’s victory in the weeks following the election. Some of them, including members of his legal team, made false and unsubstantiated claims against Dominion Voting Systems and are the subject of separate defamation lawsuits.Note the deflection of responsibility. It was Trump’s legal team that made “false and unsubstantiated claims.” That’s unquestionably true, but those same lawyers were enthusiastically put on the air by Fox for the purpose of spreading their “false and unsubstantiated claims.” And as the court’s summary judgment ruling made clear, Fox employees also made what they knew to be false and unsubstantiated claims.The end result is that Fox has paid an immense price for its lies, but it recognizes that its true vulnerability isn’t in its bank account but in its audience. It can absorb huge financial losses so long as those losses are fleeting. It cannot prosper if it loses its audience. Shielding its audience from the truth is easily worth almost $800 million to a company that made $1.2 billion in net income last year and is sitting on $4 billion in cash reserves.In the meantime, many of the viewers who keep the company so very profitable won’t know anything meaningful about the Dominion settlement or Fox’s lies — because Fox won’t tell them. I can think of any number of friends, relatives and neighbors who regularly consume conservative media and know nothing about the case. They know nothing about Fox’s falsehoods. Their ignorance is of incalculable worth to Fox.While this newsletter is admittedly rather bleak even in the face of Fox’s decisive court defeat, the story is far from over. Smartmatic’s $2.7 billion lawsuit against Fox is pending in New York State court in Manhattan, and the larger right-wing media world is facing a series of reckonings in cases across the country. My friends at Protect Democracy have filed cases against Project Veritas, Gateway Pundit, Rudy Giuliani, Dinesh D’Souza and several additional defendants related to some of the most grotesque lies in the entire Stop the Steal effort.There is a chance that great weight of legal judgments will lead to legal accountability. Justice can be so punishing that even the most amoral institutions have to respond as a matter of self-preservation. But true accountability remains elusive.Indeed, the Dominion lawsuit is perfectly representative of a vital lesson we’ve learned during the Trump era. The law can stave off disaster, but only moral norms truly preserve the republic. The law (and law enforcement) blocked Trump’s attempted coup. Legal processes are underway to hold Trump responsible for his alleged criminal misdeeds. Court cases are likely to compensate multiple victims of defamation for their profound losses. Yet still our public square is overrun with ignorance and outright lies. A Machiavellian spirit stalks the land.But the legal system does give our nation a chance to come to its senses. In the words of the old Fox show “The X-Files,” “The truth is out there.” Not only did Dominion receive justice, but its litigation gave the public the gift of truth. Now it’s incumbent on our nation to receive that truth and react accordingly. Fox News has tried to purchase the privilege of continued corruption, but even its vast bank account can’t protect it from the public — but only if that public possesses a trace of curiosity and preserves a moral core. More

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      Fox News Remains an Aberration in American Journalism

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      The decision by Dominion Voting Systems on Tuesday to settle its defamation suit against Fox News is no doubt a disappointment to the many people who have been viciously demeaned and insulted by the network’s hosts over the years and who now won’t get to see those hosts writhe on the witness stand as they are forced to admit their lies. But the settlement is also a lost opportunity for the profession of journalism.A six-week trial, especially if it ended in a victory for Dominion, could have demonstrated to the public in painstaking detail what an abject aberration Fox has become among American news organizations. In-person testimony would have illustrated what the pre-trial evidence had begun to show: that Fox hosts and executives knew full well that the conspiracy theories they peddled about the outcome of the 2020 election were false, but they broadcast them anyway to hang on to viewers who didn’t want to hear the truth. A loss by Fox, with a staggering damage award, would have demonstrated that its behavior was so exceptional and outrageous that it had to be punished.People inclined to believe that all news organizations deliberately lie to build their audience may not consider Fox’s actions to be the least bit aberrant. But if that were true, there would be a lot more trials like the one that almost happened in this case. In fact, there have been very few media trials in recent years — usually in the single digits each year, according to one study — compared with the thousands of civil trials each year. Most defamation cases are dismissed before they ever get near a trial, in part because the plaintiff could not come close to proving a news organization met the “actual malice” standard set out in the landmark New York Times v. Sullivan case of 1964, but also often because the plaintiff couldn’t even convince the judge that the defamatory material was false. News organizations also win dismissals by persuading judges that the material at issue was a legitimate opinion or was a “fair report” of allegations made at a public meeting or trial.Fox couldn’t persuade a judge of any of those defenses. In fact, the judge in this case, Eric Davis, ruled in March that it “is CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true” — a decision that was a huge setback for Fox and may have led to its eagerness to settle the case.Most defamation cases that are not dismissed are settled before trial, and the Dominion case essentially fits that pattern even though a jury had already been selected. But the size of the monetary settlement that Fox must pay, $787.5 million, also makes it a huge outlier. The next-largest publicly disclosed settlement of a defamation case against a major news organization was reached in 2017, when ABC News settled a case for at least $177 million. (Alex Jones, who was ordered last year to pay over $1.4 billion to families of victims in the Sandy Hook shooting, is not part of a legitimate news organization.)Still, nothing would have compared with a full-length trial in this case and a victory for Dominion, which many legal experts said was a strong possibility. That kind of defeat for a major news organization almost never happens, and the reason is that unlike their counterparts at Fox, journalists in conventional newsrooms don’t actually plot to deceive their audiences. They might make mistakes, they might be misled by a source or cast a story in a way they later regret, but with very rare exceptions they don’t deliberately lie.The emails and text messages demonstrating Fox’s knowing deceit, which came out in pre-trial discovery, were shocking both in their cynicism and in their deviation from industry norms. Vociferous press critics on the right and the left will scoff at this notion, but the fact is that journalists in functional newsrooms want to tell the truth. And they do so not because they fear getting sued but because that’s why they got into the business. I’ve worked for more than four decades in six American newsrooms, large and small, and the pattern of behavior shown by Fox would have been unthinkable in any of them at any time.That’s why a loss by Fox would not have raised significant press freedom issues, nor would it have increased the threat that journalists would regularly be sued for defamation. Because of the Sullivan case, news organizations are protected from libel judgments if they do not recklessly disregard the truth or engage in actual malice, which almost all newsrooms scrupulously avoid doing. Fox, however, sped right past those red lights, got caught and then spent an enormous amount of money to avoid the stain of a potential guilty verdict and the spectacle of its chairman, Rupert Murdoch, testifying to its dysfunction. (The company again demonstrated its disdain for the truth by issuing a statement on Tuesday afternoon saying the settlement demonstrated its “commitment to the highest journalistic standards.”) A second chance at clarity is coming with a libel suit against Fox by a different voting-technology company, Smartmatic. Maybe this time the opportunity to perform a public service by conducting a trial will outweigh the temptation of a Fox settlement offer.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Fox Settles Dominion Suit, but Smartmatic Case and Others Loom

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      Another election technology company, Smartmatic, is suing news outlets, including Fox, over false claims of election fraud, and Dominion has other cases pending.On Tuesday, Fox News hastily agreed to pay $787.5 million to resolve a defamation suit filed by Dominion Voting Systems — among the largest settlements ever in a defamation case — just hours after the jury for the trial was selected. In addition to the whopping financial settlement, Fox conceded that “certain claims” it had made about Dominion were false.In settling with Dominion, the network avoided the possible embarrassment of a trial that could have exposed its inner workings. Rupert Murdoch, the 92-year-old Fox News founder, and the Fox host Tucker Carlson were potential witnesses.Dominion sued the cable news network two years ago, after it aired stories falsely claiming that Dominion’s voting machines were susceptible to hacking and had flipped votes to Joseph R. Biden Jr. that had been cast for Donald J. Trump, who was president.But the settlement with Dominion is not the only legal action that some news outlets are facing after making bogus claims about the 2020 elections.Dominion v. NewsmaxNewsmax apologized in 2021 for spreading false claims that a Dominion employee rigged voting machines.Callaghan O’Hare/ReutersIn 2021, the right-wing news outlet Newsmax formally apologized for spreading false allegations that an employee of Dominion had rigged voting machines. In a statement on its website, Newsmax said it had found “no evidence” that the Dominion employee, Eric Coomer, had manipulated voting machines in an effort to sabotage Mr. Trump’s re-election bid.“On behalf of Newsmax, we would like to apologize for any harm that our reporting of the allegations against Dr. Coomer may have caused to Dr. Coomer and his family,” the statement said.Dominion also sued Mike Lindell, the chief executive of MyPillow and an outspoken supporter of the former president, and two of Mr. Trump’s lawyers, Sidney Powell and Rudy W. Giuliani, for their baseless claims about election fraud. In 2021, a federal judge refused to throw out the suits against them. And in October, the Supreme Court declined to consider Mr. Lindell’s bid to fend off his suit. This month, he told The New York Times, “I will never back down, ever, ever, ever.” The lawsuits are ongoing.Smartmatic v. Fox NewsIn 2021, Fox News was also sued by Smartmatic, which provided voting technology in Los Angeles County for the 2020 election. In its complaint, Smartmatic wrote, “Fox joined the conspiracy to defame and disparage Smartmatic and its election technology and software,” adding, “The story led a mob to attack the U.S. Capitol.” The suit, filed in New York State Supreme Court, seeks at least $2.7 billion in damages.In February, a New York appeals court denied Fox’s request to dismiss the case, and a New York judge said last month that the case could proceed. A trial date has not been set.“We will be ready to defend this case surrounding extremely newsworthy events when it goes to trial, likely in 2025,” Fox News said in a statement on Wednesday.Smartmatic v. NewsmaxSmartmatic also brought defamation litigation against Newsmax, accusing it of spreading falsehoods about the company. Judge Eric M. Davis, who was also assigned to the Fox-Dominion trial, will preside. In February, Newsmax lost its bid to end the litigation, and Judge Davis let the case move forward.Smartmatic v. One America NewsThe headquarters of One America News in San Diego.The New York TimesIn 2021, Smartmatic also sued One America News Network, accusing the news organization of airing disinformation about the 2020 election even after the company warned it to stop. In June, a judge denied a request to dismiss the lawsuit.Lou DobbsThis month — days before jury selection began for the Dominion case — Fox News and Lou Dobbs, a former longtime Fox Business host and loyal Trump supporter, settled a defamation case with Majed Khalil, a Venezuelan businessman. Mr. Dobbs and Ms. Powell, a regular guest on Fox News, falsely claimed on the air and in related Twitter posts that Mr. Khalil had been part of a conspiracy to flip votes. One of the tweets said he was “the effective ‘COO’ of the election project.” Fox canceled Mr. Dobbs’s show in February 2021. More

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      What Next for Dominion After Its $787.5 Million Fox Settlement

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      The election technology company has several more defamation lawsuits pending against public figures and news outlets.Dominion Voting Systems did more on Tuesday than settle its lawsuit against Fox News for $787.5 million: It also set the tone for the many related defamation cases it has filed. Legal experts say the settlement with Fox News, one of the largest defamation payouts in American history, could embolden Dominion as it continues to defend its reputation, which it says was savaged by conspiracy theories about vote fraud during the 2020 election. The company has several cases pending against public figures including Mike Lindell, the MyPillow executive, and news outlets such as Newsmax.The targets of Dominion’s remaining lawsuits, few of which have deep pockets and legal firepower at Fox’s level, will likely take a cue from Dominion and Fox’s face-off, legal experts said.“Even though it was a settlement, it certainly was a victory for Dominion,” said Margaret M. Russell, a law professor at Santa Clara University. “For other possible defendants, I don’t think this will make them double down; it will make them fearful.”Dominion is the second-largest election technology company operating in the United States, where there are few other major players. The company, whose majority owner is the private equity firm Staple Street Capital, was made “toxic” by the false fraud narratives in 2020, one of Staple Street’s founders said in court documents. At one point, Dominion estimated that misinformation cost it $600 million in profits.Fox said in its court filings that Dominion did not have to lay off employees, close offices or default on any debts, nor did it suffer any canceled business contracts as a result of the news network’s coverage. Fox said in one filing that Dominion had projected $98 million in revenue for 2022, which would make Tuesday’s settlement the equivalent of eight years of sales.Dominion’s customers are largely officials who oversee voting in states and counties around the country; the company served 28 states, as well as Puerto Rico, in the 2020 election. The false stories about fraud that were directed at the company were embraced by some local election officials.In court documents, an expert enlisted by Dominion said that the company had very low early contract termination rates and very high contract renewal rates before the 2020 election, but blamed the preoccupation with the false fraud claims for prompting some clients to exit deals after the vote.Now, Dominion has emerged from its tussle with Fox in a stronger position to win back any skittish clients or score new business, legal experts said.Last month, the judge in Dominion’s case against Fox reviewed evidence of the false claims and wrote that it “is CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true,” effectively confirming that the company was aboveboard.The secretary of state of New Mexico, Maggie Toulouse Oliver, applauded Tuesday’s settlement.“The harm done by election lies/denialism since 2020 is immeasurable, but this settlement against Fox News provides accountability & sends a strong message we’re happy to see,” Ms. Toulouse Oliver wrote on Twitter. During the midterm primaries last year, she blamed “unfounded conspiracy theories” when she sued officials in Otero county who had cited concerns about Dominion machines in their refusal to certify election results.Fox acknowledged in a statement on Tuesday that some of the claims it had made about Dominion were false, saying that the admission “reflects Fox’s continued commitment to the highest journalistic standards.”John Poulos, Dominion’s founder and chief executive, said in a statement on Tuesday that Fox caused “enormous damage” to his company and “nothing can ever make up for that.” He also thanked the election officials who make up Dominion’s clientele, and nodded to Staple Street’s support. “Lies have consequences,” a lawyer for Dominion Voting Systems said during a news conference.Pete Marovich for The New York TimesDominion drew some complaints that by settling, it had given up the opportunity to extract an apology from Fox or force it through a potentially embarrassing trial. An opinion article in the Daily Beast bemoaned that the voting technology company had “decided to step out of the ring with a bag of money instead of vanquishing one of the country’s most destructive and influential peddlers of hate and disinformation.”Mr. Poulos called the settlement “a big step forward for democracy” in an interview with ABC News broadcast on Wednesday.Legal experts noted that even if Dominion had prevailed in a jury verdict, it would have risked years of expensive battles over appeals from Fox.“The tort of defamation is not about saving democracy from liars,” said Enrique Armijo, a professor and First Amendment expert at Elon University School of Law. “It’s about saving the reputation of the people who have been lied about and making those liars compensate them for the harms to their reputations.”Fox still faces other legal challenges, including a $2.7 billion defamation lawsuit from another election technology company, Smartmatic. Fox said it planned to defend freedom of the press in the case and called Smartmatic’s damages claims “outrageous, unsupported and not rooted in sound financial analysis.” Smartmatic said in a statement that, after the Dominion settlement, it “will expose the rest” of the “misconduct and damage caused by Fox’s disinformation campaign.”Dominion, too, has more cases pending, including against the pro-Trump lawyer Rudolph W. Giuliani and One America News Network. Although the lawsuits involve similar false claims of election fraud, the facts of each case vary, experts said.Attorneys for Mr. Lindell and Mr. Giuliani did not immediately respond to requests for comment, nor did Newsmax or OAN.For the individuals and smaller companies facing legal claims, for whom a substantial jury judgment could be an “existential” threat, settlement may seem more attractive after Tuesday, Mr. Armijo said.“They’re not going to be able to put up the same level of defense that Fox did; they just don’t have the resources to do it,” he said. “It’s hard to see the other defamation defendants in the remaining cases getting any further than Fox did, which, as we saw, is not very far.” More

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      Where the Likely 2024 Presidential Contenders Stand on Abortion

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      Not quite a year after the Supreme Court overturned Roe v. Wade, abortion continues to be one of the main issues shaping American politics.Abortion is not fading as a driving issue in America, coming up again and again everywhere policy is decided: in legislatures, courts, the Oval Office and voting booths.An 11-point liberal victory in a pivotal Wisconsin Supreme Court race last week was fueled by the issue. Days later, a Texas judge invalidated the Food and Drug Administration’s 23-year-old approval of the abortion drug mifepristone (late Wednesday, an appeals court partly stayed the ruling but imposed some restrictions). And Florida, under Gov. Ron DeSantis, a likely Republican presidential candidate, is poised to ban abortion after six weeks’ gestation.The fallout from the Supreme Court’s revocation of a constitutional right to abortion last year looks poised to be a major issue in the upcoming presidential race. So where do the likely candidates stand?Here is what some of the most prominent contenders, declared and likely, have said and done:Anti-abortion protesters rallying in Indiana last July while lawmakers there debated an abortion ban during a special session.Kaiti Sullivan for The New York TimesPresident BidenPresident Biden condemned the ruling invalidating the approval of mifepristone, which his administration is appealing, and called it “another unprecedented step in taking away basic freedoms from women and putting their health at risk.”Mr. Biden has a complicated history with abortion; before his 2020 presidential campaign, he supported restrictions, including the Hyde Amendment, which prohibits federal funding for most abortions. But he has since spoken more forcefully in defense of unfettered access, including endorsing congressional codification of the rights Roe v. Wade used to protect.White House officials have said he is not willing to disregard the mifepristone ruling, as some abortion-rights activists have urged.Mr. Biden has said he is planning to run in 2024, but has not formally declared his candidacy.Donald J. TrumpMore than perhaps any other Republican, former President Donald J. Trump is responsible for the current state of abortion access: He appointed three of the six Supreme Court justices who overturned Roe v. Wade and the district judge who invalidated the approval of mifepristone. But lately, he has been loath to talk about it.Last year, Mr. Trump privately expressed concern that the ruling overturning Roe would hurt Republicans — and it did, both in the midterms and in the Wisconsin Supreme Court election.If elected again, he would be under tremendous pressure from the social conservatives who have fueled the Republican Party for decades — and who helped elect him in 2016 — to support a national ban. He has not said whether he would do so.Ron DeSantisGov. Ron DeSantis of Florida, whom polls show as the top potential Republican competitor to Mr. Trump, is pushing forward with the Florida Legislature to ban most abortions after six weeks. The bill passed on Thursday and was sent to Mr. DeSantis’s desk. Polls show that most Americans, including Floridians, oppose six-week bans.It is a more aggressive posture than he took last year, when Florida enacted a ban after 15 weeks and Mr. DeSantis — facing re-election in November — did not commit to going further. He made his move after winning re-election by a sweeping margin.Nikki HaleyAt a campaign event in Iowa this week, Nikki Haley, a former governor of South Carolina and former United Nations ambassador, gestured away from anti-abortion absolutism — saying that she did not “want unelected judges deciding something this personal.”But her comments were muddled: She said she wanted to leave the issue to the states, but at the same time suggested that she would be open to a federal ban if she thought there was momentum for one.“This is about saving as many babies as we can,” she said, while adding that she did not want to play the “game” of specifying when in pregnancy she believed abortion should be allowed.Asa HutchinsonSince starting his presidential campaign this month, former Gov. Asa Hutchinson of Arkansas has said only that he is “proud to stand squarely on my pro-life position” when it comes to abortion.He has not detailed what, if any, federal legislation he would support.Last year, Mr. Hutchinson criticized the lack of an exception for rape and incest in an Arkansas abortion ban he had signed. When he signed it, he said that he wanted the exception but legislators didn’t, and that he accepted their judgment as the will of voters — though a poll last year found that more than 70 percent of Arkansans supported such an exception.Mike PenceA staunch social conservative, former Vice President Mike Pence has been more open than most Republicans about continuing to advertise his opposition to abortion.“Life won again today,” he said in a statement on the mifepristone ruling. “When it approved chemical abortions on demand, the F.D.A. acted carelessly and with blatant disregard for human life.” Last year, Mr. Pence said anti-abortion activists “must not rest” until abortion was outlawed nationwide. Mr. Pence is considering a 2024 run, but has not formally joined the race.Tim ScottSenator Tim Scott of South Carolina repeatedly dodged questions about whether he supported federal restrictions on abortion in the days after announcing a presidential exploratory committee this week.Asked in an interview with CBS News whether he supported a 15-week ban, he called himself “100 percent pro-life.” When the interviewer suggested that his stance indicated he would support a 15-week ban, he replied, “That’s not what I said.”On Thursday, he told WMUR, a New Hampshire news station, that he would support a 20-week ban, but still did not say whether he would back something stricter. More

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      Fox News Sanctioned by Judge for Withholding Evidence in Dominion Case

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      Judge Eric Davis also said an investigation was likely into Fox’s handling of documents and whether it had withheld details about Rupert Murdoch’s corporate role.WILMINGTON, Del. — The judge overseeing Dominion Voting Systems’ lawsuit against Fox News said on Wednesday that he was imposing a sanction on the network and would very likely start an investigation into whether Fox’s legal team had deliberately withheld evidence, scolding the lawyers for not being “straightforward” with him.The rebuke came after lawyers for Dominion, which is suing for defamation, revealed a number of instances in which Fox’s lawyers had not turned over evidence in a timely manner. That evidence included recordings of the Fox News host Maria Bartiromo talking with former President Donald J. Trump’s lawyers, Sidney Powell and Rudy Giuliani, which Dominion said had been turned over only a week ago.In imposing the sanction on Fox, Judge Eric M. Davis of the Delaware Superior Court ruled that if Dominion had to do additional depositions, or redo any, then Fox would have to “do everything they can to make the person available, and it will be at a cost to Fox.”He also said he would very likely appoint a special master — an outside lawyer — to investigate Fox’s handling of discovery of documents and the question of whether Fox had inappropriately withheld details about the scope of Rupert Murdoch’s role. Since Dominion filed its suit in early 2021, Fox had argued that Mr. Murdoch and Fox Corporation, the parent company, should not be part of the case because Mr. Murdoch, the chair, and other senior executives had nothing to do with running Fox News. But in the past few days, Fox disclosed to Dominion that Mr. Murdoch was a corporate officer at Fox News.Dominion, a voting technology company, accused Fox and some of the network’s executives and hosts of smearing its reputation by linking it to a nonexistent conspiracy to rig voting machines in the 2020 presidential election. Fox had said that it was just reporting on newsworthy allegations from Mr. Trump, who was then the president, as well as his lawyers and supporters, who told Fox’s hosts and producers that they would prove their allegations in court.Fox’s lawyers had only recently disclosed that Rupert Murdoch, the executive chairman of Fox Corp., was also the executive chair of Fox News, a role that pointed to more responsibility for its broadcasts.Mike Segar/ReutersJury selection starts on Thursday, and the trial is scheduled to begin on Monday. It wasn’t immediately clear whether Dominion would avail itself of the judge’s ruling allowing its lawyers to conduct additional depositions. But it was clear from Judge Davis’s stern reprimand of Fox’s lawyers on Wednesday — and similarly piqued remarks from him during another hearing on Tuesday — that he was losing patience. The judge told Fox’s lawyers to retain all internal communications, starting from March 20 of this year, that related to Mr. Murdoch’s role at Fox News. That was the date the lawyers submitted a letter to Judge Davis asking that Mr. Murdoch and other Fox Corporation executives not be forced to testify at the trial in person, saying they had “limited knowledge of pertinent facts.” The letter did not mention that Mr. Murdoch was also a Fox News executive.Judge Davis said he would weigh whether any additional sanctions should be placed on Fox.He also said he was very concerned that there had been “misrepresentations to the court.”“This is very serious,” Judge Davis said.Davida Brook, a lawyer for Dominion, told the court that they were still receiving relevant documents from Fox, with the trial just days away.“We keep on learning about more relevant information from individuals other than Fox,” she said. “And to be honest we don’t really know what to do about that, but that is the situation we find ourselves in.”She pointed to one email that had recently been handed over, between Ms. Bartiromo and Ms. Powell on Nov. 7, 2020. In the email, Ms. Powell was forwarding evidence to Ms. Bartiromo that Dominion said was proof Fox had acted recklessly: an email from a woman Ms. Powell relied on as a source who exhibited signs of delusion, claiming, for instance, that she was aware of voter fraud because she had special powers, including the ability to time travel.“I just spoke to Eric and told him you gave very imp info,” Ms. Bartiromo wrote back to Ms. Powell, most likely referring to Eric Trump, Mr. Trump’s son.Ms. Brook also played two recordings for the court of pre-interviews, which are preliminary conversations before an on-air interview, conducted by Ms. Bartiromo that Ms. Brook said were received only after they were revealed in legal complaints filed by Abby Grossberg, a former Fox News producer who is suing the network.The evidence included recordings of the Fox News host Maria Bartiromo talking with former President Donald J. Trump’s lawyers, Sidney Powell and Rudy Giuliani.Roy Rochlin/Getty ImagesIn one of the recordings, on Nov. 8, 2020, Ms. Bartiromo asks Mr. Giuliani about Dominion’s software. In it, he admits that he doesn’t have hard evidence to back up the claim that the software could be manipulated, saying it was “being analyzed right now.” When Ms. Bartiromo asks about a conspiracy theory circulating at the time that claimed Dominion was connected to Representative Nancy Pelosi of California, Mr. Giuliani says: “Yeah, I’ve read that. I can’t prove that yet.”A Fox News spokeswoman said in a statement on Wednesday: “As counsel explained to the court, Fox produced the supplemental information from Ms. Grossberg when we first learned it.”Justin Nelson, another lawyer for Dominion, told Judge Davis that had Fox Corporation, the parent company, been quicker to share the information about Mr. Murdoch’s role as an officer of Fox News, the universe of documents Dominion could have obtained during discovery from him and other Fox Corporation executives would have been much larger. He also said that Fox might have failed to produce relevant documents.“We have been litigating based upon this false premise that Rupert Murdoch wasn’t an officer of Fox News,” he said.The question of whether Mr. Murdoch made decisions as a corporate officer of Fox News cuts to the heart of Dominion’s case. It has tried to prove — and Fox has repeatedly denied — that Rupert and Lachlan Murdoch, the chief executive of Fox Corporation, were closely involved in overseeing Fox News coverage of the 2020 election. Their decisions, Dominion has argued, directly affected what Fox broadcast about the voting technology company and, more broadly, fed a climate inside the network where hosts and producers amplified misinformation as part of a plan to win back viewers who had stopped watching after Mr. Trump’s loss.Proving so would mean that the larger Fox Corporation — not just Fox News — could also be found liable for defaming Dominion.Mr. Nelson argued that the case should be split in two so that Dominion lawyers could separately pursue action against Fox Corporation now that Dominion could obtain more information from executives. Judge Davis declined, but he expressed concern that Fox’s legal team had not been forthcoming with the information, despite being asked multiple times whether Mr. Murdoch was a corporate officer for Fox News.“I need people to tell me the truth,” he said. “And by the way, omission is a lie.”Dan K. Webb, a lawyer for Fox, pushed back on the assertion from Dominion, saying that both he and even Mr. Murdoch didn’t realize he also held the executive chair role at Fox News.“On a day-to-day basis, Mr. Rupert Murdoch had nothing to do with making decisions with what goes on the air on Fox News,” Mr. Webb said.In an emailed statement, a Fox News spokeswoman said: “Rupert Murdoch has been listed as executive chairman of Fox News in our S.E.C. filings since 2019 and this filing was referenced by Dominion’s own attorney during his deposition.”Judge Davis admonished Fox’s lawyers, saying he had previously asked for clarity on who had corporate responsibilities at Fox News but had not heard back.“What do I do with attorneys that aren’t straightforward with me?” he asked. More

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      Judge Limits Fox’s Options for Defense in Dominion Trial

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      A Delaware judge said Fox News could not argue newsworthiness to defend airing false claims, and limited how Dominion Voting Systems could refer to the Jan. 6 attack.WILMINGTON, Del. — A judge ruled on Tuesday that Fox News could not argue that it broadcast false information about Dominion Voting Systems on the basis that the allegations were newsworthy, limiting a key line of defense for the network as it faces the beginning of a potentially costly defamation trial next week.The judge, Eric M. Davis of Delaware Superior Court, also ruled that Dominion could not refer to the Jan. 6, 2021, assault on the Capitol except in very narrow circumstances, saying he did not want jurors to be prejudiced by events that weren’t relevant to the central question in the case: Did Fox air wild claims about Dominion’s purported involvement in a conspiracy to steal the 2020 presidential election from Donald J. Trump knowing that they were lies?In the first of two days of pretrial hearings, Judge Davis set many of the parameters that will govern how the trial is run, including what kinds of arguments the 12-person jury can hear and what questions lawyers may ask during jury selection to weed out those they believe would not be impartial.The hearing covered matters large and seemingly small, from the application of the First Amendment to how jurors may take notes.Judge Davis said he would allow lawyers to ask potential jurors about their cable news viewing habits and whether they watched Fox News programs — or intentionally avoided them. He will not, however, permit questions about how someone voted.In another ruling, the judge denied a motion from Dominion that sought to limit how Fox lawyers could invoke the First Amendment, leaving the network with some space to argue that the Constitution shields it from liability.The lawsuit, in which Dominion is seeking $1.6 billion in damages, is teeing up a major test of the First Amendment and, depending on the outcome, could renew questions about whether defamation law adequately protects victims of misinformation campaigns.While legal experts have said Dominion’s case is unusually strong, defamation suits are extremely difficult to win because the law essentially requires proof of the defendants’ state of mind. Dominion’s burden will be to convince a jury that people inside Fox acted with actual malice, meaning either that they knew the allegations they broadcast were false but did so anyway, or that they acted so recklessly they overlooked facts that would have proved them wrong.Fox has argued that while it understood many of the claims made by its guests about Dominion were false, they were still worth covering as inherently newsworthy. Fox’s lawyers have taken the position that there is nothing more newsworthy than claims by a former president of the United States that an election wasn’t credible.Judge Eric M. Davis said he would allow lawyers to ask potential jurors about their cable news viewing habits and whether they watched Fox News programs.John Taggart for The New York TimesBut Judge Davis disagreed.“Just because someone is newsworthy doesn’t mean you can defame someone,” he said, referring to pro-Trump lawyers like Sidney Powell and Rudolph W. Giuliani, who appeared repeatedly on Fox News and Fox Business in the weeks after the 2020 election and linked Dominion to various conspiracy theories.The judge admonished Fox’s lawyers, saying they cannot make the argument that the false statements about Dominion came from guests like Ms. Powell and not from Fox hosts. That argument is irrelevant, he said, because the fact remains that Fox is responsible as the broadcaster.Sidney Powell and Rudolph W. Giuliani. The pro-Trump lawyers appeared repeatedly on Fox News and Fox Business in the weeks after the 2020 election and linked Dominion to various conspiracy theories.Jacquelyn Martin/Associated Press“It’s a publication issue, not a who-said-it issue,” he said.Dan K. Webb, a lawyer representing Fox, explained that hosts would testify that they weren’t certain about the truth of the allegations but covered them because the former president and his lawyers said they could prove them.“The hosts will say during that time period, 15, 20 days, they were careful not to repeat the allegation,” Mr. Webb said.Judge Davis responded, “Just because they say it, doesn’t mean it’s true.”It was not the only tense exchange between the judge and Fox lawyers on Tuesday. At one point, a lawyer for Dominion, Justin Nelson, informed Judge Davis that Fox had disclosed only within the last 48 hours that Rupert Murdoch, whose family controls the Fox media empire, had a larger role in Fox News than the company had initially let on.By not acknowledging the extent of Mr. Murdoch’s responsibility for Fox News, the personal communications of his that Dominion could review were “significantly more limited,” Mr. Nelson said.Judge Davis was not pleased. “This is a problem,” he said. “I need to feel comfortable that when you represent something to me that it’s true,” he added.Fox has also made the argument that its actions were not defamatory because many hosts and guests said on the air that there was a lack of convincing evidence that suggested widespread voter fraud.Judge Davis rejected this position, too.“You can’t absolve yourself of defamation by merely putting somebody on at another time to say something different,” he said.In asking for such a large settlement against Fox, Dominion has cited the death threats its employees have received. People have shown up outside its Denver headquarters armed and left voice mail messages threatening to blow up its offices.Judge Davis on Tuesday limited how Dominion can refer to those threats in front of jurors, ruling that it may not mention specific content. He said he did not want to leave jurors with the impression that Fox was responsible for the actions of third parties.The trial begins on Monday, with jury selection expected to wrap up by the end of this week.Before Tuesday, the judge had already ruled that Dominion could compel several high-profile Fox executives and hosts to testify in person, including Mr. Murdoch; Suzanne Scott, the chief executive of Fox News Media; and the Fox News personalities Tucker Carlson, Sean Hannity and Jeanine Pirro. More

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      In Hundreds of Jan. 6 Cases, Justice Dept. Wins a Battle (for Now)

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      The ruling of a federal court left open the possibility of future challenges to a law that has been used against hundreds of people charged in the Capitol attack.A federal appeals court on Friday upheld the viability of a criminal charge that has been used against hundreds of people indicted in connection with the attack on the Capitol on Jan. 6, 2021 — and that congressional investigators have recommended using in a potential criminal case against former President Donald J. Trump.The decision by the U.S. Court of Appeals for the District of Columbia means that the charge — the obstruction of an official proceeding before Congress — can continue to be used in the Justice Department’s prosecutions related to the Jan. 6 riot. It could also ultimately be used against Mr. Trump should the special counsel, Jack Smith, decide to file a case against him related to his efforts to overturn the 2020 election.But even though the three-judge panel, in a 2-1 ruling, left in place the status quo and temporarily avoided crippling hundreds of Jan. 6 cases by invalidating the obstruction count, it still presented a serious challenge to the Justice Department moving forward.A provision of the law requires proving that any interference with a congressional proceeding be done “corruptly.” Two of the judges said they were inclined to define that term in a narrow way as receiving a personal benefit — even though the panel as a whole put off a final decision on the issue.The split decision left wiggle room for defense lawyers to try a flurry of complicated new efforts to invalidate the charge in all of the cases in which it has been used.A future ruling that narrowed the definition of “corruptly” could have significant effects on the Jan. 6 prosecutions.It could bar the Justice Department from using the obstruction count against defendants who did not commit other unlawful acts like assaulting a police officer. It could even lead to the charge being dropped in situations in which defendants did not personally benefit from the obstruction they are accused of taking part in — circumstances that could be hard to apply to Jan. 6 defendants.Almost from the start of the vast investigation of the Capitol attack, prosecutors have used the obstruction count to describe the event at the heart of Jan. 6: how, by storming the Capitol that day, members of a pro-Trump mob disrupted the certification of Mr. Trump’s electoral defeat that was taking place inside during a joint session of Congress.Defense lawyers have long maintained that prosecutors overreached in their use of the law, stretching the statute beyond its intended scope and using it to criminalize behavior that too closely resembled protest protected by the First Amendment. In December, they challenged the viability of the law in arguments in front of the appeals court, making various claims that the charge was a poor fit for what happened at the Capitol and that it should not have been used against any of the rioters.In its ruling, the appellate panel acknowledged that the obstruction count had never been used in the way it has been used in Jan. 6 cases, but decided that it was nonetheless a viable charge in the riot prosecutions. The ruling reversed decisions made in three separate Jan. 6 cases by Judge Carl J. Nichols, the only judge in Federal District Court in Washington, where the cases are being heard, to have struck down the obstruction charge..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.The obstruction charge — formally known in the penal code as 18 U.S.C. 1512(c)(2) — was never a perfect fit for the many cases stemming from the Capitol attack. It was passed into law as part of the 2002 Sarbanes-Oxley Act, which sought to clamp down on corporate malfeasance.The measure was initially intended to prohibit actions like shredding documents that were part of a congressional proceeding. In his initial rulings, Judge Nichols said the count had been used inappropriately because the cases of the three rioters he was considering had nothing to do with destroying or tampering with documents or records.The appellate panel — made up of two Trump appointees and one judge appointed by President Biden — ruled that Judge Nichols’s interpretation of the law was too narrow and that the obstruction committed by the three defendants in question did not have to relate solely to documents.The panel noted that the defendants had been rightfully charged with obstruction of a congressional proceeding. The cases included those of Joseph Fischer, a Pennsylvania police officer accused of pushing at law enforcement officers during the Capitol attack; Garret Miller, a Dallas man charged with storming the building and facing off with officers inside; and Edward Jacob Lang, a self-described social media influencer from New York who prosecutors say attacked the police with a baseball bat.The obstruction charge has been used so far in more than 300 riot cases, including against prominent defendants in far-right groups like the Proud Boys and the Oath Keepers militia. Part of the appeal of the count to prosecutors is that it carries a hefty maximum sentence of 20 years in prison.In December, in one of its final acts, the House select committee investigating Jan. 6 included the obstruction count in its recommendations to the Justice Department of what charges should be filed against Mr. Trump. A federal judge in California, considering a lawsuit stemming from the committee’s work, separately determined that Mr. Trump had likely committed obstruction as defined by the law.The appellate panel reserved judgment on the definition of “corruptly” because it was not directly part of the appeal of Judge Nichols’s earlier decisions, leaving open the possibility of future challenges on that issue.In its arguments before the appeals court, the government claimed that acting corruptly should be broadly construed and include various unlawful behavior like destroying government property or assaulting police officers. The defense had argued for a narrower interpretation, seeking to define the term as acting illegally to procure something to directly benefit oneself or another person.The panel split on the issue, with two of the judges — Gregory G. Katsas and Justin R. Walker — agreeing on the narrow, more personal view of “corruptly.” The third judge, Florence Y. Pan, took the broader view of the term but was able to get Judge Walker to vote with her to uphold the obstruction law overall.Judge Walker only agreed to join Judge Pan if they adopted the narrow definition, setting up a conflict that will, eventually, have to be resolved. More