Network of Lies, page 19
Behind the scenes, the Biden White House was cognizant of what was going on. The president assessed Fox “as one of the most destructive forces in the United States,” Jonathan Martin and Alexander Burns reported in This Will Not Pass. According to the book, Biden told an unnamed associate in mid-2021 that Rupert was “the most dangerous man in the world.” But Biden never mentioned Rupert or Lachlan in public, for fear of poking the proverbial bear—or because he actually believed what he’d said on Inauguration Day.
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From the very first days of the Biden presidency, segments about the fallout from the Capitol attack, and Trump’s role in it, were minimized on Fox while segments about the “BIDEN BORDER CRISIS” and “BIG TECH CENSORSHIP” were scheduled twice an hour. Management even ordered special “censorship” graphics packages. The anti-tech crusades conveniently lined up with Rupert’s corporate interests, namely, to force Google and Facebook to pay for the content he generated. It also aligned with the priorities of his biggest star, Carlson, who broke with standard GOP views and favored greater structural intervention into the marketplace.
Fox remained in full-on “respect the audience” mode, which in practice meant “lots more Tucker.” The network increasingly revolved around his opinions. Fox & Friends and the daytime shows were instructed to make liberal use of clips from Carlson’s show. Entire segments were framed around what Carlson said sixteen or eighteen hours earlier—which meant his isolationist, paleo-conservative ideology was suffused across the network in a way that, say, Hannity’s more traditional unabashedly pro-GOP boosterism was not.
Carlson, always on the hunt for self-aggrandizing opportunities, did not let the post-Arizona crisis go to waste. He had pitched an expansion of his mini-empire inside Fox: a “new line of content” called Tucker Carlson Originals with long-form interviews and documentaries produced by a “prime time reporting team.” It could “reestablish trust with our viewers,” he wrote to Scott, and he would promote the new content on his 8 p.m. show. Carlson mentioned Fox Nation, the network’s nascent streaming service, and that’s exactly where Originals launched in February 2021. He had successfully parlayed Fox’s post-election panic into more airtime and attention for himself.
“Respect the audience” was in effect in other ways too. Producers fought with each other to book the subset of conservative guests whom viewers loved—media bashers like Mollie Hemingway and shouters like Dan Bongino—while ignoring more rational Fox contributors like Jonah Goldberg and Stephen Hayes. “Fox is a really different place than it was pre-election,” a network commentator remarked to me. No one wanted “another Arizona,” so the network became even less news-driven and even more mission-driven.
The reality was that Fox preferred having Biden in office. When Republicans held power, Fox sat at the table with the defense. When Democrats were in charge, Fox could join the prosecution and pound the table, a much more enjoyable role to play. As Rupert analyzed it, “We always do better as the opposition.” He was right insofar that the base gravitated back to Fox in early 2021. Memories of Arizona faded. A new fragile peace was achieved. Fox was further to the right—or as journalism scholar Jay Rosen put it, “further from the real”—than ever.
“Seeking to kill us”
J. Erik Connolly, the A-list lawyer retained by Smartmatic shortly after Thanksgiving of 2020, welcomed complex and challenging cases. Some of them got press attention: a beef producer’s defamation claim against ABC News, which cost the network a lot of sirloin to settle, at least $177 million (one of the largest defamation settlements in history), and a Real Housewives of Beverly Hills star’s attempt to squelch rumors she was a madam, which landed Connolly on the syndicated celebrity gossip show TMZ. He was happier working behind the scenes, managing mind-numbingly complicated contract and tort disputes. Smartmatic’s case against Fox wasn’t in either category. It was beautifully straightforward. It turned on one uncomplicated, incontestable fact about the city of Los Angeles.
All winter long, as Trump’s coup attempt was repelled and Biden took office, Connolly’s team at Benesch, Friedlander, Coplan & Aronoff drafted an astonishingly detailed lawsuit, 285 pages long, accusing Fox and the Wild Bunch—Dobbs, Bartiromo, Pirro, Giuliani, and Powell—of “a conspiracy to spread disinformation about Smartmatic.” The firm’s associates watched hundreds of hours of Fox coverage and produced a five-week-long timeline of the nationally televised propaganda that had cast Smartmatic as a clear and present danger to America. (“I had to pay them hazard pay,” Connolly joked to a colleague about the assignment he’d given the young associates.)
Like Dominion, with its flotilla of “Setting the Record Straight” emails, Smartmatic made a protracted, good-faith effort to put a stop to the smears long before filing suit. On December 10, Connolly’s firm sent retraction demand letters to Fox, Newsmax, and OAN, charging all three networks with a “concerted disinformation campaign against Smartmatic.” The next day, Fox’s Brain Room brainstormed a potential rebuttal. Smartmatic “is claiming that we didn’t challenge the narrative” about fraud, exec VP Tom Lowell wrote to the group. “Sometimes, we didn’t,” he admitted. “But we are looking for the times we DID.”
As a legal and a practical matter, saying “beware of dog” occasionally does not absolve you of all the times you said “Sic ’em, Fang.”
But Fox tried it anyway. Lowell worked with Fox’s legal and PR departments to cook up a peculiar response. It was described by New York Times media columnist Ben Smith as “one of the strangest three-minute segments I’ve ever seen on television.” The segment consisted of a guy named Eddie Perez, a voting software expert, debunking the anti-Smartmatic innuendo that had proliferated on Dobbs’s, Pirro’s, and Bartiromo’s shows. Fox management slotted the segment into the rundowns of all three shows, and the hosts were told not to say anything to undermine it. The segment was clearly intended as a shield against Smartmatic’s legal threats; a way to say “we aired your side of the story.”
With an implied: “so you got nothin.’ ”
The interview with Perez happened so belatedly, however, that it arguably weakened Fox’s case. As Connolly’s lawsuit noted, Fox was essentially trying to close the door after the horses had already befouled the barn, saying Fox “could have put Mr. Perez on the air at any time prior to December 18.” Additionally, Dominion’s lawyers later, inevitably, used Fox’s fact-check about Smartmatic to question why Fox didn’t afford Dominion the same consideration.
The Perez segment also weakened Fox’s standing within MAGA world. Steve Bannon texted Bartiromo about it, alarmed, as though she had suddenly turned into a traitor to the movement. Viewers tweeted their disgust. “Who got to @MariaBartiromo?” one of her fans asked. On the air, Bartiromo was still spinning like a break-dancer, conjuring up a vast conspiracy to defraud the United States—one morning on Fox Business, she said there’s “an intel source telling me that President Trump did in fact win the election,” and no one even blinked. But attached to just a whiff of concession, even she could enrage the base.
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Connolly’s legal team compiled all the misinformation and then turned to motive. When Trump lost, they wrote in the lawsuit’s opening pages, Fox and Giuliani and Powell “needed a villain. They needed someone to blame. They needed someone whom they could get others to hate. A story of good versus evil, the type that would incite an angry mob, only works if the storyteller provides the audience with someone who personifies evil.” So they teed up Smartmatic.
Smartmatic CEO Antonio Mugica said he had “no choice” but to sue. “For us, this is existential,” he said when the suit was filed in New York on February 4. The smears were spooking potential customers; subjecting employees to death threats; and, Mugica argued, jeopardizing the company’s very survival. The suit sought a blood-curdling (for Fox) $2.7 billion in damages.
So what gave Mugica and Connolly so much confidence? Bizarrely: La La Land. The defendants (the right-wing networks) repeatedly referred to “swing states” like Arizona and Georgia in connection with their accusations against Smartmatic. But their research was apparently as incompetently executed as the entire “rigged election” scam. Mugica’s company provided election software to just one locale in the U.S. in 2020: Los Angeles County, California. “Nowhere else,” the lawsuit emphasized.
Thanks to that devastating fact, “I can prove everything they said was a lie,” Connolly told me. “I’ve been doing this for a long time and that might be the easiest way to demonstrate falsity that I’ve seen.”
Proving that Lou Dobbs et al. knew the truth was a higher bar to clear—but Fox did something the next day, February 5, that gave Smartmatic even more conviction about the power of its case. Fox fired Dobbs.
The move seemed to come out of nowhere. While Fox Business was low-rated, the thing about Dobbs was, feeble as his numbers were, he was that channel’s highest-rated host by far. Sometimes he would double the performance of the show before his—a demonstration of how much of a draw Dobbs was for men of a certain age and political affiliation. When I went live on CNN from my Covid-era home studio to analyze the news of Dobbs’s sudden defenestration, anchor Erin Burnett asked, “Can you remember a network canceling its highest-rated show?,” and I said the closest analogy was Fox’s ouster of Bill O’Reilly in 2017.
In this instance, technically, Fox canceled Dobbs’s show and sat him on the bench. (It was the same “pay or play” treatment that Carlson would receive in 2023.) The Smartmatic lawsuit was undoubtedly a factor in the abrupt cancellation, but sources insisted to me that the plan predated the lawsuit; Dobbs’s contract was too fat, his show struggled to turn a profit, and he had pissed off management one too many times, so he wasn’t worth the headache anymore. Scott later said “I had a plan in place, in my mind… for a year, where I was ready to make a change with Dobbs.” She said she had “spent many months navigating a path to make a change with Dobbs.”
And she reached the end of the path, magically, exactly one day after Smartmatic demanded $2.7 billion. Go figure. (But bring a calculator.)
I found it startling, and telling, that Rupert in his deposition claimed to know almost nothing about Lou Dobbs. Rupert was the one who wanted to launch Fox Business in the first place, back in 2007, and Roger Ailes only reluctantly agreed. Yet Rupert was hands-off: “Mr. Ailes was running the show completely,” he said, and Ailes hired Dobbs in 2010 to strengthen the business channel—“which I don’t think worked anyway,” Rupert added.
When compelled to testify on the matter, Rupert was borderline nasty about Fox Business: “I never watch,” he said, “and I certainly never watch Lou Dobbs,” who “had very few viewers.” Very few, but still far more than any other personality on the channel, so something just didn’t add up. NPR’s David Folkenflik, the author of Murdoch’s World, proffered the best explanation of Dobbs’s departure: He told me it was reminiscent of the way Rupert handled the phone hacking scandals at his British tabloids ten years earlier, when “they would throw somebody over the side and see if that was enough.” Folkenflik said the surprise cancellation seemed like “an effort to cauterize the wound, to distance Fox from this feverish conspiracy theory.”
Staffers wondered what, if anything, Dobbs’s disappearance said about the future of the Fox brand. Dobbs’s producers speculated that he was canned for being “ultra MAGA” in a media marketplace that seemed, for the moment, to be post-Trump. “Lou was reckless,” Carlson told a colleague. “But I think this will give energy to CNN and other forces seeking to kill us. So we should be as aggressive and tough as we can be.”
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Fox still had to pay Dobbs’s legal fees due to the cooperation agreements that are standard in TV contracts. But Dobbs’s ouster was the first signal that the Big Lie—and the campaign inside Fox to substantiate it—was going to have long-term consequences.
The lawsuits added up fast: On January 8, two days after the riot, Clare Locke, Dominion’s legal strike force, filed the first of the company’s lawsuits, a $1.3 billion claim against Powell. There were numerous other offenders to pursue: Giuliani, Lindell, Fox, Newsmax, and OAN, to name a few. “It was clear that we were going to need a whole bunch of skills,” partner Tom Clare said. And Dominion’s owner, Staple Street Capital, wanted to signal that it had the wherewithal—the resources—to see the case through. Enter Susman Godfrey, the firm that played a key role in post-election litigation, including Trump’s big legal spanking in Wisconsin. “Susman Godfrey decided to go after the biggest fish first,” an insider said, and that was Fox. Partners Justin Nelson, Davida Brook, and Stephen Shackelford would be the three lead attorneys.
As they examined possible avenues of attack in January and February, “we thought we could win based just on the public statements,” Shackelford told me. The statements came in two flavors: the stark raving mad claims made about Dominion on Fox’s airwaves, and the authoritative comments from government and judicial officials in both parties debunking the craziness. “It helped that Dominion had sent so many ‘Setting the Record Straight’ emails to Fox,” Shackelford said. “The truth was in Fox’s inbox.”
Dominion’s resulting 137-page complaint was a scorcher. The suit enumerated four categories of lies and listed twenty times those lies were advanced on Fox. Three of the TV segments (by Dobbs and Bartiromo) managed to incorporate all four poisonous varieties of lie: that Dominion rigged the election for Biden; that its algorithms manipulated vote counts; that Dominion was owned by a company founded in Venezuela; and that Dominion paid kickbacks to government officials. There were scores of other Fox segments alluding to fraud, some even citing Dominion by name, but “we wanted a clear case,” Brook said. “We were disciplined.” The reasons would become clear later.
On March 26, the day the suit was filed, Fox trotted out the same defense that it did against Smartmatic, stating that it was merely covering newsworthy matters involving the highest officeholder in the land. I put that to Shackelford in an interview on CNN and he shredded it. “Fox was not reporting the news with these reports that are outlined in our complaint,” he said. “Fox was not giving voice to some grand political debate. Fox was repeatedly stating as fact… all of these lies about Dominion… even while they were being told the truth over and over again.”
Hearing that, it was reasonable to ask: Could Fox mount any believable defense?
Viet Dinh thought so. Dinh, as a former assistant attorney general under George W. Bush, crafted the post-9/11 PATRIOT Act. Then he founded a boutique law firm with an emphasis on Supreme Court litigation. Dinh, born in Saigon, and an immigrant to the U.S. when he was ten years old—three years after his native city fell to the communists—had an exceptional academic record (Harvard, both undergrad and law), top-notch conservative credentials, and very powerful allies, including, by 2004, Lachlan Murdoch, who brought Dinh onto the Fox board of directors. In 2018 he came off the board to become Fox’s chief legal and policy officer, reporting directly to Lachlan. His compensation package—cash and stock and perks—routinely topped $12 million.
Dinh’s colleagues described him as relentless and frenetic—often “on two cell phones at any one time,” a friend said. He was once dubbed “Viet Spin” for his “opportunistic politicking” in D.C. At Fox, his portfolio encompassed legal, compliance, regulatory, and government matters. He moved his family to Los Angeles for the job, with an office just steps from Lachlan, and within two years there was chatter that Dinh was the true leader of Fox Corp, that he was much more hands-on than his boss, that he was doing the heavy lifting. Dinh said the aggrandizement was false. The perception did not abate though; it was further fed by Lachlan’s decision to move his family back to Sydney, Australia, in March 2021. “They’ve wasted no time settling back into Sydney life,” a local columnist wrote two months later. Lachlan’s wife, Sarah, “goes to the ballet and takes the kids to fun parks. Meanwhile Lachlan zips around town in his shiny $400,000 Maserati.” He promptly paid $30 million for a boat shed in a pricey Sydney neighborhood.
Lachlan’s people said he was still working American hours even though Sydney was seventeen hours ahead of L.A. When Lachlan occasionally dipped into Fox editorial meetings on Zoom, staffers snarked behind his back that he might be on his yacht. In The New York Times, Ben Smith labeled Dinh “a kind of regent” at Fox. So, the expectation inside the corporation was, if anyone was capable of steadying the American ship, it was Dinh.
Smartmatic had already sued, and Dominion was just days away from filing, when Dinh spoke with legal journalist David Lat in March 2021. “I’m not at all concerned about such lawsuits, real or imagined,” Dinh said. Why? Because Trump’s post-election challenges were so “newsworthy.” Fox News “did its job,” he said, “and this is what the First Amendment protects.” That’s what he told the Murdochs too. Sit back, relax, and let the Bill of Rights sort this out.
“New war on terror”
The House of Representatives opened a formal investigation into the January 6 insurrection. Which meant Fox had a big problem.
Trump’s supporters had mounted an attack on the nation’s constitutional system; an attack that included overt deadly threats to members of Congress—of both parties—and even Trump’s own Republican vice president; an attack that turned so violent it resembled scenes from Game of Thrones, with brutal hand-to-hand fighting and makeshift weapons like flagpoles and hockey sticks; an attack that played out live and in color on national television, for hours, and was augmented by months of up-close, blood-and-guts video footage of even more ferocious assaults on Capitol police officers. But Fox fans did not want to see it, did not want to hear it, did not want to face it.
