Tag New York Times

This is not your Founding Fathers’ America

Pat Ryan Leave a comment

When we feel our treatment by our rulers has become so intolerable, so unjust – so inhumane – that we must declare our independence among the peoples and nations of the world, it just makes sense that we should explain to the rest of the world why we are doing it.  Here goes.

–Pat’s paraphrase of the preamble to the Declaration of Independence

The Founding Fathers then laid out the Declaration of Independence of the 13 “united States of America” which included the self-evident truths of the “unalienable” rights that they believed are the birthright of all humans.  Point by point, they laid out their grievances against George III and insisted they had made every good faith effort to resolve differences peacefully.  They explained that they had appealed to the goodness and mercy of “our British brethren” to end the mistreatment from which they suffered, but found them unresponsive.  And in light of those facts, they declared to the world that they and their fellow Americans were going into business for themselves.  The war that had begun the previous year was concluded by treaty in 1783; by 1787 a new Constitution of the United States was approved on behalf of the people of the new nation “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…”.

That legal framework set out principles to guide our development and our lives, including the principle that no man is above the law.  That idea had a pretty run there, right up until last Monday when the Supreme Court of the United States decided that presidents and former presidents of this great country were effectively kings or queens.  And despots, if they choose to be.

Immunity from prosecution.  The Justice Department has a policy that no sitting president can be prosecuted while in office, but there was no law that said that, and nothing explicit in the Constitution says a former president is immune from prosecution for officials acts taken while in office.  The high-minded concept was that a president was a person given certain powers to exercise – temporarily – on behalf of his country and in its best interests, and who would then return to his life as a regular citizen.  Would President Gerald Ford have granted Richard Nixon a pardon after his resignation over Watergate crimes if anyone had thought that the former president was immune from prosecution?  No one before has ever had the temerity to claim he had immunity from prosecution…or quite frankly, the need for immunity…before you know who.

A man made famous as much for his over-use and abuse of the legal system as for his dubious business skills that necessitated all the suing and threats of suing had nothing to lose and everything to gain (and no shame) by making an unsupported legal claim that had the desired effect of delaying his trial on felony charges of trying to overturn the legitimate results of the 2020 election.  The trial court judge hearing this case rejected the claim of immunity, so did a unanimous panel of the U.S. Court of Appeals.  The Supreme Court…well, the Supremes (1) surprised many when they agreed to hear the case at all, causing a delay until (2) they heard oral arguments April 24 and then (3) “deliberated” the rest of April, all of May and all of June – more than nine weeks – before issuing the ruling.  Guess it takes a while to create a whole new right not found in the Constitution, especially when you had said yourself, under oath, that such a right did not exist:

https://twitter.com/AccountableGOP/status/1808191057236000975
https://twitter.com/AccountableGOP/status/1807835389865951253
https://twitter.com/AccountableGOP/status/1807855254006124944

Hmmm…same folks who said Roe v. Wade was settled precedent. Interesting…

The idea proposed by Trump lawyers in oral arguments was that immunity is needed to protect former presidents from being corruptly prosecuted by their successors; whether or not that is true, there was no such right in the Constitution until this court created it with this ruling.  When was the last time you saw a former president pursued in the legal system by a previous president?  (If you said Biden is doing it to Trump right now, that is the wrong answer; he’s not.)  You haven’t seen it before: not even the lawless Trump went after Barack Obama or his other predecessors!  The assertion that this is a real and dangerous prospect is based on nothing in law or custom or history; it is a projection from Trump’s narcissistic personality disorder wherein he knows what he wants to do to Joe Biden and to every other perceived enemy, and his fevered brain assumes that’s how everyone else operates, too.

Not only did the court create a right that wasn’t there (don’t you just hate those activist judges that Republicans have been warning us about?) but, as argued by Thomas Wolf of the Brennan Center for Justice, “The Court has created an elaborate system of ambiguous rules that will not only ratchet up the complexity of the case against Trump but also erode the checks on presidential illegality. It is both a roadblock to prosecution and an encouragement to more insurrection.”

The procedures the Court has crafted to go with [the new rule] are pitched in Trump’s favor. Whenever the case returns to Judge Tanya Chutkan’s trial court, Trump will be presumed immune by default; the burden will be on the prosecution to establish that he isn’t. The Court’s definition of “official acts” cuts extremely broadly, stretching to “the outer perimeter of [Trump’s] official responsibility.” (The Court refused to say exactly where that perimeter ends.) The prosecution must show that prosecuting Trump for those official acts “would pose no dangers of intrusion on the authority and functions” of the presidency (emphasis added). The prosecution won’t be able to claim an official act was “unofficial” because of the president’s motives for doing it. (emphasis added) And Trump can seek another round of appellate review if the trial court doesn’t rule him immune. Should the government clear these hurdles, it won’t be able to use the “testimony or private records of [Trump] or his advisors” about official acts to prove his guilt. (emphasis added)

The Court justifies all this new complexity as necessary to protect imaginary future presidents from imaginary future prosecutions. It does not, critically, justify it as a response to the acts of the real and credibly accused former president in the case before it. Just as members of the Court’s conservative supermajority consistently steered the conversation at oral argument away from Trump’s charges, they do not even try to grapple with the bigger implications of applying their new rule to the case in front of them or the consequences if their rule ultimately lets Trump skate. Instead, the Court bows out of the case with the tidy but myopic claim that it “cannot afford to fixate exclusively, or even primarily, on present exigencies,” lest “transient results” threaten “the future of our Republic.”

The Court doesn’t engage with the ramifications of its opinion, because it can’t — at least not without exposing the fundamental bankruptcy of the whole edifice it has just built. The majority’s ruling cannot possibly be the rule for any functioning democracy. Trump has been charged with attempting to overthrow the election that threw him out of office. Any rule that would grant a president immunity for that crime would remove the principal check on presidential abuses of authority in our democratic system: the vote. And it would encourage other losing candidates to try the same in future elections. (emphasis added)  It is in this sense that the Court’s opinion is truly lawless. It does not merely invent constitutional rules that are antithetical to our founding commitments or enduring values. It threatens to free presidents from the constraints of law and democracy. And it paves the way for future presidents to try to make good on the most antidemocratic of all propositions: might makes right.

In reaching to resolve future imagined cases of presidential criminality while downplaying the actual criminality before it, the Court has imperiled accountability for Trump’s wrongs. It has done severe violence to our law. And it has left our democracy exposed.

Look at what Trump did while president – I mean, just the things we know he did – when there was no presumption of immunity from later prosecution; just what the hell do you think he’ll do next time if given the chance?   What about his calls for televised military tribunals of Liz Cheney and other enemies?  Immunity!  What about all the assaults on our system being planned by his supporters behind Project 2025?  Immunity!

And what about this threat from the president of the Heritage Foundation that “We are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.”?  Uh, do what we want and you won’t be hurt?  Really?

And this whole depressing development comes on the heels of a televised “debate” in which we saw one candidate for president lie his ass off for 90 minutes and the other look like an elderly deer caught in the headlights; Biden is now telling Democratic governors he’s fine but needs to stop working by 8 p.m.  I got the feeling this is going to get even weirder.

The center holds, for now

Pat Ryan Leave a comment

The more things change – a U.S. president convicted of a felony offense for the first time ever – the more they stay the same – Donald “Trump calls trial a ‘scam,’ vows to appeal historic verdict.” 

The verdict in New York yesterday was historic: not only for being the first time an American president or former president was found guilty of having committed a felony, but for the American system of justice demonstrating that any American citizen can be held to account before a jury of his or her peers.  In spite of that citizen’s rank in society, or his attempts to undermine the system itself by waging “an all-out war against the judicial system before the verdict came in, hoping to blunt the political damage and position him[self] as a martyr.”

But amid the relentless offensive by Trump and his allies on the legal infrastructure holding him accountable, the trial came with a substantial cost, according to those who study democracy, with the ultimate impact likely to be measured in November.

(snip)

“The judicial system has taken a body blow from Trump’s assaults,” said Kim Lane Scheppele, a professor of sociology at Princeton University who studies the rise and fall of constitutional government. Forcing him to sit through the trial, follow orders and listen to evidence against himself meant that “his rage at being controlled by others is going to be directed at trying to bring the whole judicial system down with him.”

(snip)

But there was something different about Trump’s repeated complaints about this first criminal jury trial that made them even more potent, experts say. Whenever a politician is brought up on charges, “every single time that leader will scream up and down that this is a politicized process and his political enemies are out to get him,” said Steven Levitsky, a professor of government at Harvard University. “What’s notable here,” said Levitsky, co-author of the book “Tyranny of the Minority: Why American Democracy Reached the Breaking Point,” “is that the entire Republican Party is marching in lockstep, along with right-wing media, claiming that the legal process has been weaponized, and therefore eroding public trust in a really vital institution.”

(snip)

“The problem is that not even the best institutions in the world can function well in the context of extreme polarization, particularly when one party has turned against democratic institutions. And so extreme polarization and extreme radicalization will undermine and destroy even the best of institutions. And that’s what we’re seeing in the United States.” But even if Trump damaged the judicial system’s reputation through his complaints about the trial, to not prosecute “when there’s a strong sense that wrongdoing happened,” Levitsky said, would be more damaging. “That would hold the judicial system and the political system hostage to say that to prosecute will bring more blowback than benefit. If you give in to that, you have no rule of law.”

Did this trial and all the sideshows related to it diminish the American judicial process?  We can each answer that for ourselves.  I think not, and I don’t think it has for the many many millions of Americans who don’t take every childish taunt out of Trump’s mouth as gospel truth.  He was obviously trying to pre-rouse his supporters to doubt and reject any verdict against him, in the same way he tries to get them to believe that any election he loses had to have been rigged; the unfortunate thing is that it appears to work for many many millions of other Americans.  He promised a “news conference” this morning, and it was filled with more of the same lies as came before.  And, he took no questions…which to my mind makes this a campaign speech rather than a news conference.  Trump is not famous for engaging in a vigorous exchange of viewpoints.

(What he is famous for, among some, is being a TV star, and this morning I discovered an article in the Washington Post with some terrific background about that show.  It cites a recent essay in Slate by one of the producers on that show – who has just been released from a non-disclosure agreement and is free to talk about what he witnessed – and Bill “Pruitt describes choices about scripts and editing and challenges as efforts to present a particular, inaccurate image: the show’s star, Donald Trump, as an omniscient business leader. Looking back across the decades since the first season of the show was filmed, Pruitt clearly regrets having helped foster that perception.”  It’s worth your time to read.)

Trump says he will appeal the verdicts and that is certainly his right, but don’t expect that to bring a conclusion to the legal fight any time soon.  Trump is famously litigious when it comes to civil matters that are at bottom just about money; potential appeals in this case – to the trial judge, two levels of state appeals courts and (yes, possibly) the Supreme Court of the United States could take years to conclude.  Not that it matters, though: Trump, the convicted felon, is still allowed by law to run for president and to serve if he is elected.  And the first reaction to the conviction from among MAGA Nation was to shower him with tens of millions of dollars in campaign contributions!

Does this conviction change the course of the presidential election?  No one knows yet, including the talking heads who are acting like they do know.  It seems plain that those who are brainwashed in the MAGA cult either don’t believe he did anything wrong or don’t care what he did, or think this whole thing is more evidence of the anti-Trump Deep State at work.  Those who were never going to vote for Trump before didn’t need this conviction to sway them.  For the rest, this might be what it finally takes for some Trump supporters to change their minds and some undecideds to choose a side.  It sure seems like it should matter, to everyone.  It wasn’t so long ago, I think, that it would have.

83 millions reasons to be happy

Pat Ryan 1 Comment

If it is true that we like to see good things happen to good people, I suppose it’s also true that we like to see bad things happen to bad people.  I know I do.  So today is a very happy day indeed, to see that a New York jury has awarded $83.3 million in damages to the writer suing Donald Trump for “defaming her in social media posts, news conferences and even on the campaign trail ever since she first accused him in 2019 of raping her in a department store dressing room decades earlier.”  Most of that, $65 million, is punitive damages – punishment for the defendant’s conduct.  Well done, sir!

I’d be stunned (shocked, like Claude Rains was) if Trump ever paid the money – he has a long history of delaying and deferring and settling lawsuits for pennies on the dollar with adversaries who’d rather take something than nothing at all – but it is heartening any time he doesn’t get his way with his bullying and bloviating and insistent lying.  Lying, like just last night, when he repeated his worn-out self-defense of the original rape/sexual assault allegation, insisting “I don’t even know who this woman is.  I have no idea who she is, where she came from.”  In present tense.  Really?  Even if that were true years ago when the accusation was first made, how can you honestly claim today that you do not now know who she is?  Is telling the truth just that hard for you?  (“I know you lie, your lips are moving…”)

This has also been an opportunity for the former guy to give us another demonstration – as if we needed one – of his wide-ranging ignorance.  He used his own social media service this afternoon to say he disagrees with all the verdicts in this case, that he will appeal today’s decision on damages, that he blames Democrats for the suit in the first place (huh?), and that some unspecified “they” have “taken away all First Amendment rights,” presumably by limiting his testimony in court and restricting some of the witnesses his lawyers wanted to call.  Of course, “they” have not and did not do that.  At all.  But you knew that.

You knew that the First Amendment right to free speech does not mean that we are all endowed with the right to say any thing we want, at any time we want, any where we want, to any body we want, and that no one can do any thing about it.  The First Amendment prohibits the government from censoring your speech or other expressions of opinion, unless the speech in question falls into one of the categories which the courts have determined are NOT protected: child pornography, or a solicitation to commit a crime, for instance…or in this case, speech that is defamatory.

Judges have a right to run their courts; a higher court can punish this one if he is found to have violated the law.  Don’t hold your breath waiting for that to happen in this case.

Meanwhile, there are more courts hearing cases against you know who: the judge in the New York civil fraud trial against Trump and his business promised a ruling before the end of the month, and then there are the rest of the now-famous 91 indictments, including the it-seems-really-clear-he-did-it classified documents case in Florida.  AND some Republicans are starting to admit, publicly, that Trump’s acknowledged efforts to get the GOP to refuse to compromise with Democrats to pass an immigration bill…

…Trump has been lobbying Republicans both in private conversations and in public statements on social media to oppose the border compromise being delicately hashed out in the Senate, according to GOP sources familiar with the conversations – in part because he wants to campaign on the issue this November and doesn’t want President Joe Biden to score a victory in an area where he is politically vulnerable.

…are bad for the party and bad for the country.  Of course, what is good for the party and good for the country have never been priorities for the former guy.

Tick tick tick

Pat Ryan Leave a comment

Most of the people I know are tired of talking about you know who, the former president who does dare to speak his name.  I know I am, despite the evidence that indicates I am lying to myself and to you when I say that.  But I keep doing it because it does not seem to me that enough people are sufficiently aroused to the danger he still poses…that we are acting, as Pamela Paul writes in the New York Times, as if we are unaware that there is a bomb under the tale at which we sit.

Alfred Hitchcock explained the nature of cinematic terror with a story about the bomb under the table. People are sitting around a table having a mundane conversation about baseball when — boom! — a bomb goes off, instantly killing everyone. You’ve momentarily surprised the audience.

But what if, Hitchcock asked, we are shown beforehand that the bomb is there?

“In these conditions this same innocuous conversation becomes fascinating because the public is participating in the secret,” Hitchcock explained to his fellow director François Truffaut. While everyone is just sitting around chatting, the viewer wants to shout: “Don’t sit there talking about baseball! There’s a bomb!”

“The conclusion,” Hitchcock said, “is that whenever possible the public must be informed.”

I bring this up because we know there’s a bomb under the table — the threat of a second Donald Trump presidency. And we have a fairly good idea of the crippling destruction that will ensue. Yet here we are, still talking about baseball.

We’re less than a year from the next presidential election – just months from the party primaries and caucuses that will do most of the choosing of the candidates who will run in that election.  We’re running out of time to make choices that could protect our future from a second term of office for TFG.  And protection is what we all need.  In today’s Washington Post, Robert Kagan of the Brookings Institution does a thorough job of laying out the dangers on a “path to dictatorship.”  It’s worth your time to read it all, but here are some of the bullet points.

The magical-thinking phase is ending. Barring some miracle, Trump will soon be the presumptive Republican nominee for president. When that happens, there will be a swift and dramatic shift in the political power dynamic, in his favor. Until now, Republicans and conservatives have enjoyed relative freedom to express anti-Trump sentiments, to speak openly and positively about alternative candidates, to vent criticisms of Trump’s behavior past and present. Donors who find Trump distasteful have been free to spread their money around to help his competitors. Establishment Republicans have made no secret of their hope that Trump will be convicted and thus removed from the equation without their having to take a stand against him.

All this will end once Trump wins Super Tuesday. Votes are the currency of power in our system, and money follows, and by those measures, Trump is about to become far more powerful than he already is. The hour of casting about for alternatives is closing. The next phase is about people falling into line.

(snip)

No doubt Trump would have preferred to run for office without spending most of his time fending off efforts to throw him in jail. Yet it is in the courtroom over the coming months that Trump is going to display his unusual power within the American political system.

It is hard to fault those who have taken Trump to court. He certainly committed at least one of the crimes he is charged with; we don’t need a trial to tell us he tried to overturn the 2020 election. Nor can you blame those who have hoped thereby to obstruct his path back to the Oval Office. When a marauder is crashing through your house, you throw everything you can at him — pots, pans, candlesticks — in the hope of slowing him down and tripping him up. But that doesn’t mean it works.

Trump will not be contained by the courts or the rule of law. On the contrary, he is going to use the trials to display his power. That’s why he wants them televised. Trump’s power comes from his following, not from the institutions of American government, and his devoted voters love him precisely because he crosses lines and ignores the old boundaries.

(snip)

The likeliest outcome of the trials will be to demonstrate our judicial system’s inability to contain someone like Trump and, incidentally, to reveal its impotence as a check should he become president. Indicting Trump for trying to overthrow the government will prove akin to indicting Caesar for crossing the Rubicon, and just as effective. Like Caesar, Trump wields a clout that transcends the laws and institutions of government, based on the unswerving personal loyalty of his army of followers.

(snip)

If Trump does win the election, he will immediately become the most powerful person ever to hold that office. Not only will he wield the awesome powers of the American executive — powers that, as conservatives used to complain, have grown over the decades — but he will do so with the fewest constraints of any president, fewer even than in his own first term.

What limits those powers? The most obvious answer is the institutions of justice — all of which Trump, by his very election, will have defied and revealed as impotent. A court system that could not control Trump as a private individual is not going to control him better when he is president of the United States and appointing his own attorney general and all the other top officials at the Justice Department. Think of the power of a man who gets himself elected president despite indictments, courtroom appearances and perhaps even conviction? Would he even obey a directive of the Supreme Court? Or would he instead ask how many armored divisions the chief justice has?

Will a future Congress stop him? Presidents can accomplish a lot these days without congressional approval, as even Barack Obama showed. The one check Congress has on a rogue president, namely, impeachment and conviction, has already proved all but impossible — even when Trump was out of office and wielded modest institutional power over his party.

(snip)

Trump’s ambitions, though he speaks of making America great again, clearly begin and end with himself. As for his followers, he doesn’t have to achieve anything to retain their support — his failure to build the wall in his first term in no way damaged his standing with millions of his loyalists. They have never asked anything of him other than that he triumph over the forces they hate in American society. And that, we can be sure, will be Trump’s primary mission as president.

Having answered the question of whether Trump can win, we can now turn to the most urgent question: Will his presidency turn into a dictatorship? The odds are, again, pretty good.

It is worth getting inside Trump’s head a bit and imagining his mood following an election victory. He will have spent the previous year, and more, fighting to stay out of jail, plagued by myriad persecutors and helpless to do what he likes to do best: exact revenge.

(snip)

What will that look like? Trump has already named some of those he intends to go after once he is elected: senior officials from his first term such as retired Gen. John F. Kelly, Gen. Mark A. Milley, former attorney general William P. Barr and others who spoke against him after the 2020 election; officials in the FBI and the CIA who investigated him in the Russia probe; Justice Department officials who refused his demands to overturn the 2020 election; members of the Jan. 6 committee; Democratic opponents including Rep. Adam B. Schiff (Calif.); and Republicans who voted for or publicly supported his impeachment and conviction.

But that’s just the start. After all, Trump will not be the only person seeking revenge. His administration will be filled with people with enemies’ lists of their own, a determined cadre of “vetted” officials who will see it as their sole, presidentially authorized mission to “root out” those in the government who cannot be trusted. Many will simply be fired, but others will be subject to career-destroying investigations.

(snip)

And who will stop the improper investigations and prosecutions of Trump’s many enemies? Will Congress? A Republican Congress will be busy conducting its own inquiries, using its powers to subpoena people, accusing them of all kinds of crimes, just as it does now. Will it matter if the charges are groundless? And of course in some cases they will be true, which will lend even greater validity to a wider probe of political enemies.

Will Fox News defend them, or will it instead just amplify the accusations? The American press corps will remain divided as it is today, between those organizations catering to Trump and his audience and those that do not. But in a regime where the ruler has declared the news media to be “enemies of the state,” the press will find itself under significant and constant pressure. Media owners will discover that a hostile and unbridled president can make their lives unpleasant in all sorts of ways.

Indeed, who will stand up for anyone accused in the public arena, besides their lawyers? In a Trump presidency, the courage it will take to stand up for them will be no less than the courage it will take to stand up to Trump himself. How many will risk their own careers to defend others?

I wanted to embed a Tweet here which contains a great video abnout TFG…but X refuses to connect for a video it has labelled as “sensitive content.” OK, try looking at it directly.

Actual malice, meet demonstrable truth

Pat Ryan Leave a comment

…not long after Joe Biden had been officially declared the winner of [the 2020 presidential] election, a bunch of disreputable right-wing sore losers—that’s the technical term—began to claim that the Dominion machines had somehow been tampered with, and that votes that had been duly cast for Donald Trump via Dominion machines had been secretly switched over to Biden’s column.

The fact that this thesis was very stupid did not stop it from gaining credence among many Trump voters. These people weren’t just angry that their candidate had lost the election; they were angry that Fox News wasn’t reporting that Trump had actually won the election. In retaliation, many of these Trump fans began to unofficially boycott Fox News, instead tuning in to other right-wing news networks, such as Newsmax, which were much more willing to indulge their conspiratorial fantasies.

Check out more of this nice, fun summary of Dominion Voting systems libel suit against Fox News here.  The libel suit is scheduled to go before a jury in a Delaware court tomorrow, assuming the two sides don’t reach a settlement between now and then.

As a recovering journalist myself, I’ll say it is my belief that it should be hard to get a libel verdict against a journalist, a newspaper or broadcast company.  The U.S. Constitution envisions a free press that facilitates a lively public debate of issues, and in the decision that set today’s judicial standard on libel law, New York Times v. Sullivan, Justice William Brennan wrote for a unanimous court that “debate on public issues should be uninhibited, robust, and wide‐open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”  The threat of litigation is often used to by people who come out on the bad end of those debates to try to scare a paper or a station into not running tough stories (see: Trump, Donald J.; litigation; threats of).

But that doesn’t mean that those who publish on paper, who broadcast through the air, or who post online, should have a free hand to say anything they want at any time with impunity; those who have truly been libeled do have recourse.  But keep in mind, reputable publications can make a strong defense by proving the truth of what they published: if a published statement is true, it is not libelous or slanderous. (It was not ever thus: courts no longer automatically consider statements that damage the reputation as obviously libelous.)  If what was published is factually true, it is not libelous and you cannot win a lawsuit alleging libel.

In a case where the plaintiff is a public figure or a public official, Times v. Sullivan set a high bar for proving you were libeled by a publication: you must prove that the defendant published a story “with knowledge that it was false or with reckless disregard of whether it was false or not.”  (A term you’ll often hear that is used to describe that state is to say the publication acted with “actual malice.”)  While publication of an erroneous story is bad and hurts the reputation of the publication, it is not a case of libel against a public figure or institution (which Dominion is) if the publication believed the story was true and had done the required work to gather the facts to come to believe it was true.

In Dominion Voting Systems v. Fox, the voting machine company claims Fox defamed the company by “spreading false claims that the company rigged the 2020 presidential election to prevent former President Donald Trump’s reelection.”

As noted in a New York Times story last week,

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.

During standard pre-trial discovery in this case, Dominion uncovered information from inside Fox that Fox News Channel and its on-air talent and some of its management leaders knew that the claims against Dominion were not true (“with knowledge that it was false”) but published the stories anyway—over and over again—to keep from offending their viewers who believed the claims from Trump and his lawyers and other sycophants of a rigged election (“with reckless disregard of whether it was false or not”).

As it often does, Fox defends itself by wearing the mantle of mainstream responsible journalism operating in the public interest; it argues it reported the claims made by Trump and others because they were newsworthy.

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.

But Judge [Eric] 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.

“It’s a publication issue, not a who-said-it issue,” he said.

There’s no guarantee to the outcome of a jury trial, of course…but if I may presume to summarize a closing argument for Dominion:

  • Fox lied about Dominion rigging its election machines to steal the 2020 presidential election from Crybaby He-Man
  • Dominion made every effort to inform Fox that what its guests and its hosts were saying on the air was incorrect
  • Fox knew that the accusations against Dominion that were being made on its programs were lies, but permitted them to continue
  • Dominion suffered monetary losses and losses to its reputation as a result of Fox’s broadcasts, and asks for money damages

Nice and neat, and not confusing.

Fox has been lying on the air to its audience for years, telling them (1) what they want to hear, regardless of whether it is true, and (2) what certain politicians have agreed to parrot, to build political consensus and power.  But this time, it lied about a company that was willing to call them out in a court of law, and the case has landed before a judge who has demonstrated his loyalty to demonstrable truth and facts.  For Fox, that is a whole new kind of audience.