A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.
This Was Total Vindication
I’m a bit surprised by the unrealistic expectations so many people apparently harbored about the Dominion case. The bombshell revelations in the case about the internal workings of Fox News and the three-quarters of a billion dollars the network is being forced to pay exceeded my expectations for what a civil action could achieve. It’s a breathtaking success!
It is a landmark defamation case that will be studied for years. It cements in the historical record Fox’s sinister role in Donald Trump’s effort to subvert the 2020 election. It confirms and illustrates in vivid detail Fox’s key role in fomenting the reactionary, caustic, democracy-backsliding political era from the 1990s into the 2020s.
So enough with the long faces:
- The Fox settlement ranks as the second highest defamation award in U.S. legal history, behind only the Sandy Hook families’ $1 billion-plus in judgments against Alex Jones last year.
- It’s the largest ever U.S. defamation settlement (as opposed to judgment), at least that’s been publicly revealed.
- The judge had already ruled that it was “CRYSTAL clear” that Fox aired false claims about Dominion. All the trial would have done was establish whether Fox acted knowingly or recklessly in doing so and how much Dominion’s damages should be.
- Dominion marshaled extensive evidence of Fox’s wrongdoing and was able to inject that into the public sphere via its stupendous motion for summary judgment a few weeks ago.
Perhaps instead of sitting back and waiting and hoping for third parties – like a judge or a jury or some grand duke of truth-telling in the universe – to validate our own judgments about Fox News, everyone in the reality-based world can simply rest confident in those judgments, shout them from the rooftops on their own merits, and proceed knowing what we know to be true based on voluminous evidence and our own good sense.
Politics generally – and the movement to protect and secure democracy specifically – isn’t a spectator sport, and it’s a fundamental mistake to treat it that way. This is a good bracing thread on keeping expectations reasonable:
A Settlement Was Not A Surprise
A lot of the initial coverage yesterday suggested the settlement was a surprise development. It really wasn’t. Most cases settle. Yes, the size of the payout was astonishing and the circumstances were undoubtedly dramatic. And while settlement wasn’t a guaranteed outcome, it was an eminently plausible one, especially after the previous 48 hours:
- Settlement talks had heated up as trial approached, which is super common in civil litigation. The delay of the start of the trial on Monday to try to resolve the case signaled that the settlement talks were serious.
- The $787.5 million settlement came after the jury was selected but before opening statements, during a long pause in the courtroom proceedings that suggested settlement talks were continuing.
- A mediator was brought in the help get the two sides over the finish line, the WSJ reports: “The parties engaged a mediator from dispute-resolution provider JAMS, Jerry Roscoe, who was on vacation in Romania and worked over the course of a day to bring about a deal Tuesday afternoon, according to a person familiar with the situation.”
- The terms of the settlement do not require Fox News Fox to apologize or admit to wrongdoing on air.
- The closest Fox came to an admission was this weak sauce: “we acknowledge the Court’s rulings finding certain claims about Dominion to be false.”
- Fox continues to traffic in ridiculously self-serving claptrap: “This settlement reflects Fox’s continued commitment to the highest journalistic standards.”
If your ideal scenario involved Fox News personalities and the Murdochs being forced to testify and getting chewed up on cross examination with a gargantuan verdict and punitive damages in the billions, I get you. But that was not even close to a guaranteed outcome of going to trial. Also possible: the jury awards a more modest judgment, Dominion outright loses at trial, Dominion wins but later loses key issues on appeal and has to start over, etc. In any of these also-plausible alternative scenarios, Fox would have had the opportunity to further muddy the waters. In your imagined schadenfreude-rich universe, bad things could have happened, too.
Why Wasn’t Fox Forced To Admit Wrongdoing And Apologize?
This is more of a question than a theory: How much did the separate looming $2.7 billion defamation claim by Smartmatic USA constrain Fox’s ability to admit wrongdoing and apologize as part of the Dominion settlement?
Smartmatic’s claims in its New York state lawsuit aren’t the same as Dominion’s, but they closely mirror the fact pattern in the Dominion case.
“Dominion’s litigation exposed some of the misconduct and damage caused by Fox’s disinformation campaign. Smartmatic will expose the rest,” an attorney for Smartmatic said in a statement after the Dominion settlement.
Look Out, Rudy!
Don’t forget that Dominion still has viable defamation cases pending against Rudy Giuliani, Sidney Powell, MyPillow chief executive Mike Lindell, and Overstock.com founder Patrick Byrne, and against Newsmax and OAN.
How Fox Covered It
The Fox News settlement was big news everywhere except Fox News.
No Special Master?!?
This was my one disappointment about the Dominion v. Fox settlement.
After appointing a special master Tuesday morning to investigate Fox’s alleged withholding of evidence from Dominion as he had promised, the judge reportedly called it off after the settlement. To be slightly more precise, NBC News, citing a source familiar, reported that `”the special master’s investigation will not move forward.” But that would only be the case if the judge said so.
Why am I disappointed? Any misconduct by Fox during the pre-trial phase isn’t forgiven or excused because a settlement was later reached. The integrity of the judicial process is at stake, especially as Fox is engaged in multiple other related or similar lawsuits arising from the same pattern of conduct.
What Is Fani Willis Up To?
A curious development yesterday in the Georgia state criminal investigation into Trump’s election subversion effort:
- Fulton County District Attorney Fani Willis is seeking to disqualify a defense lawyer, Kimberly Bourroughs Debrow, from simultaneously representing 10 fake electors.
- Willis says some of the fake elector witnesses are accusing another fake elector witness of additional wrongdoing, which Willis claims puts the defense lawyer in an untenable ethical position.
- Willis also accused the defense lawyer and her co-counsel of not passing on an offer of immunity to some of their clients and then misleading the court about it.
- The defense lawyer and one of her co-counsel vigorously denied Willis’ claims.
Prosecutors took an unusual tack and asked a defense witness on the stand in a Jan. 6 rioter case to identify other people who entered the Capitol that day but haven’t been charged. The defense lawyer lost his mind and told the court that prosecutors were trying to turn the witness into a “cheese-eating rat.” The judge offered a compromise solution.
Another Election Official Quits Under Duress
NYT: “Heider Garcia, the head of elections in Tarrant County, Texas, announced this week that he would resign after facing death threats, joining other beleaguered election officials across the nation who have quit under similar circumstances.”
Abortion Pill Expected From SCOTUS Today
The Supreme Court’s temporary pause on the abortion pill ruling out of Texas ends at midnight ET tonight, so a fuller decision from the high court is expected sometime today. TPM’s Kate Riga is on the case.
Discord Leaker To Appear in Court
Airman Jack Teixeira, accused of dumping classified documents on Discord, is scheduled to appear today in federal court in Boston for a detention hearing. We may get more evidence from prosecutors at the hearing.
What Now For Feinstein?
Senate Democrats failed in their unrealistic bid to convince Republicans to help them replace Sen. Dianne Feinstein (D-CA) on the Judiciary Committee and resume confirming Biden judges.
I Take That As A No?
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