Revealing Fox News Texts; Baldwin Charges Reduced

about the claims and mocked the people making them. As part of its one point eight billion dollar defamation suit against Fox, Dominion Voting Systems has revealed private communications of hosts like Tucker Carlson and Laura Ingraham and network bigwigs, including the chairman of Fox Corporation, Rupert Murdoch. Quote Sidney Powell is lying end quote. Carlson texted a producer about Trump's lawyer. Ingraham texted Carlson that Powell is quote a

complete nut. No one will work with her. Here's that lawyer that Ingraham called a complete nut on her show. This is coup five point zero and in the Department of Justice and the FBI really need to get after it right now and investigate all the reports of fraud. There are hundreds of them. Well, I hope at Charney General Barr is doing that. Very very hopeful that he's doing that. Otherwise we're in big trouble as a country, especially with elections going forward. Joining me is Douglas Morrell,

a partner at Greenberg Gloucesker. I want you to start by explaining Dominions claims. What are they alleging in this lawsuit? So, in its lawsuit against Fox, Dominion Voting Systems is essentially claiming that Fox knowingly published a series of statements by not only others, but by its own presenters, its own show hosts that falsely claimed that somehow Dominions voting machines were responsible for flipping votes or for changing the outcome

of the twenty twenty presidential election. Obviously, a news organization is involved. So what does Dominion have to prove to make its case. So Dominion has acknowledged in this case that it is a public figure, and that has a significant effect upon what has to be proven in order

to prevail in a defamation case. Specifically, because it's a public figure, it has to show that the statements that were aired by Fox were aired knowing them to be false, or were aired with reckless disregard for their truth, or falsity, and the evidence that Dominion has presented so far would seem to be one of those rare situations where that test can be met, and so the case may well be decided without the knee for a trial, or if it goes to trial, I think the evidence is very

strong that that test that standard will be met. Is there a difference when a news organization is involved. The standard that applies to news organizations really isn't necessarily different from the standard that would apply in a regular individual defamation case. The fact, though, is that when you're dealing with a media defendant, the question of publication, which is an element of any defamation case, is usually a foregone conclusion.

If we were talking about a situation where you and I were having a private conversation and I said nasty things about you, that would not be subject to a defamation claim because it hasn't been published to any third party. So whenever a media defendant is involved, by definition, there's been a publication and that element is taken care of, but all of the other elements of a defamation claim

remain the same. In the papers supporting the motion for summary judgment, Dominion describes people from the top of the organization, on air hosts, people behind the camera discussing that these claims about a stolen election were false. Yeah. So what is interesting about the summary judgment papers that Dominion has filed is the nature and extent of the evidence that they've been able to accumulate through discovery and from Rupert Murdoch on down to the on air talent that Fox

us and in some cases still uses. There are a wealth of emails, text messages and deposition testimony which seem to pretty clearly indicate that they knew that what was being broadcast and what they themselves were broadcasting were lies. And that is extraordinarily unusual to find in a case of defamation. You don't have the party accused essentially confessing

that this is our modus operandi. And indeed, you know, what is now seems to be apparent is that lying was a part of Fox's business model, and that's because they were concerned that their viewers were being turned off by having them tell the truth about what occurred with respect to the twenty twenty election, and we're instead turning to other sources such as Newsmax. So is it enough that they lied? Does Dominion have to prove anything else.

Dominion has to prove that knew that what was being broadcast were lots and the evidence that's been accumulated thus far would seem to pretty clearly show that there was that knowledge at a point in time when it was quite clear that Dominion had no culpability with respect to

changing votes or hiding votes or manipulating vote. And what's unusual too about this case is that in an ordinary defamation lawsuit, you might have a single story where a statement made within that one story is found to be defamatory. Here you have an ongoing series of broadcast statements made by people who we now know knew that what they were saying was untruthful at the time they said it, and that there was not just one instance of this, but it occurred time and time again with multiple on

air talent. Fox said the dominion filing mischaracterized the record Jerry pick quote, stripped of key context, and spilled considerable ink on facts that are irrelevant under black letter principles of defamation law. Is that possible, Well, let me say that none of us on the outside have a full record of everything that has been discovered during the course of this litigation, and indeed we may never have that.

For example, the one hundred and ninety two page filing that Dominion presented is replete with blacked out information, so we don't even know the full extent of everything that Dominion knows, and it's not entirely clear to me why those redactions were made in this motion. The motion itself was withheld from public disclosure, was sealed when it was originally filed, and it was only subsequently publicly released, but released in a manner where we still don't know the

full extent of everything that's been said. Now, it's possible that Fox is correct that there has been some selective editing or cherry picking of quotes, and that perhaps context needs to be flashed out, but that's a job that Fox is going to have to do on its own, and we will see whether they're able to put meat

on the bones that it has presented. So Fox lawyers also claim that everything their anchors said was protected by the First Amendment, and argues that by covering Trump's fraud claims, the network was doing what any media organization would reporting

and commenting on a matter of undeniable newsworthiness. So the newsworthiness defense, along with the fair and true report defense, along with the neutral reportage defense that Fox has raised in this case, have all been essentially, if not completely eviscerated, largely rendered moot by prior decisions of the court that refused to allow Fox to have the case dismissed before this point. And so those claims bring quite hollow in

light of what the trial judge has already determined. And so Fox, I think is engaged in more of a pr offensive than it is in trying to convince the court that what it has already decided is wrong. That tell us what the judge has already decided the case.

At an early stage in any case, you have the opportunity to challenge a lawsuit based exclusively upon what the pleadings in the case say, what the complaint that was filed said, and you do that by way of emotion to dismiss In this case, the complaint that Dominion filed

was extraordinarily detailed. I don't recall how many hundreds of pages were filed, but it included lots of evidence that it had accumulated even without having access to text messages and emails and other material through deposition, it had access to information that when these broadcasters from Fox were making these claims, that the facts of Dominions non involved in any election rigging were absolutely clear, they had been investigated,

they had been adjudicated in cases in which Dominion's conduct was put in issue, and it was known to the world that these claims about Dominions voting machines were false. But yet even after that had occurred, Fox posts continued to make these unfounded and in many cases outrageous claims about Dominion wholly without any acknowledgement of the fact that these were false. And you know, it's one thing for a guest on a show to make claims that one

may not know are going to be false. It's quite another thing for the host themselves to be adopting those claims and reinforcing them and affirming them. And it's also another thing for those guests who are being brought onto the show are guests who are known to be of questionable character and reliability, which is another thing that the evidence in this case is already demonstrated, So a summary judgment motion by a plaintiff in a case like this

is highly unusual. Despite all the evidence that dominion has put forth, do you think the judge would be reluctant to grant a summary judgment motion. Summary judgment motions really turn on whether or not there is a genuine material issue of disputed fact, and so it's up to the judge to decide whether that situation exists. If it does,

then the case should go to the jury. If the judge conclude that there aren't any genuine disputed facts that are relevant to how the case ought to be decided, and that judge ought to grant the summary judgment motion and save everybody at the time and trouble of going to dry the damages in this case. Fox said that

the damages are far more than what dominions worth. They have said that, and interestingly they said it on the same day that Dominion's summary judgment motion was publicly released, and so I think that that was largely a pr offensive. It was undoubtedly intended to distract attention away from what the evidence in the case showed. But you know, I don't think it was particularly effective, and I don't think it's necessarily relevant, frankly, because what dominion is worth is

not really the issue in the case. The issue in the case. From a damage's standpoint, as I see it is what is the nature of the on going damage that Dominion will suffer in the future as a result of the conduct by Fox, And that damage is measured by who will enter into contracts with Dominion, who is already contractually involved with Dominion, but who now are concerned about whether Dominion's conduct is appropriate or not. And Foxes

paper sort of deliberately dance around that question. The question of how dominions image will be damaged in the future by these allegations, one point eight billion does seem high, though, yeah, well it is high. But on the other hand, you know, Fox is not a small player, and given that both Fox the Fox News network as well as Fox Corp. The parent, are defendants, you know it's not necessarily a

number that would bankrupt the company by any means. And certainly, if there were either an adversary judgment ruling or or a jury trial verdict that was anywhere close to that, I'm quite sure that Fox would be capable of bonding, as it would need to around that judgment, allowing them and thereby allowing them to appeal it and at least postpone for some significant period of time an ultimate day of reckoning. So to sum up, tell us how strong

you think this dominion motion for summary judgment is. I think Dominion's motion is both likely to succeed and likely to be a landmark in defamation law in the United States. The fact is that it is exceedingly rare to have the kind of evidence that Dominion has been able to accumulate that shows knowledge of falsity and certainly reckless disregard for the truth on the part of a news organization that has built its reputation upon effectively lying to its viewers.

And so this, I think is perhaps one of the few cases where the standards that are applicable to the defamation of public figures, which are and are appropriately extraordinarily high, will be met. Thanks for being on the show, Doug, that's Douglas Morrell a partner Greenberg Gloscer. The prosecution has made a change in its case against Alec Baldwin for a fatal shooting on the New Mexico film set of The West Rust. Prosecutors have dropped the firearm enhancement, which

carried a mandatory five years in prison. Baldwin still faces involuntary manslaughter charges with a possible eighteen month prison sentence. Baldwin has maintained that he's not responsible for the shooting of the film. Cinematographer joining me is former prosecutor Joshua Kastenberg, a professor at the University of New Mexico Law School. Why did the prosecutor drop the firearms enhancement Explain why

the prosecutor dropped the firearms enhancement charge. The enhanceance law came into a fact after the alleged crime occurs, and there's a basic constitutional principle that you cannot be charged with an ex post facto crime that's the Latin term

for making something illegal after the fact. And I think, basically my sense of what happened is the decision to do that enhancement was probably done in the hopes of either getting a place or in ignorance of when the law came into effect, which is somewhat surprising because prosecutors ought to be attuned into when a law comes into being.

Usually there's an update that occurred. So I think it's one of those things that the prosecutor had the eye on the ultimate conviction or on a plea deal, rather than is this charge the right charge to go forward on in every respect. I mean, it may have been the right charge to go forward on if it had become a law years earlier, but that's not the case here. In a statement, the DA spokeswoman said the decision to drop the firearm enhancement was made in order to avoid

further litigious distractions by mister Baldwin and his attorneys. Quote. The prosecution's priority is securing justice, not securing billable hours for big city attorneys. Two points about that. First, she's not admitting she made a mistake, and you don't usually see such snarky statements from prosecutors, right so into your first point. I was a career prosecutor, but in a different jurisdiction. I'm surprised when a prosecutor makes a statement

like that. You know, sometimes being a prosecutor, like being a judge, means you're also a punching bag that does not punched back. In this case, the defense council have been acting somewhat unusually. They've been restrained because in many high profile cases, the defense council go after the prosecutor. This is not one of those cases. So I too, I'm very surprised at that comment. The second thing I would say is, you know, I believe that there's enough

evidence to go forward on the charge that remains. And having said that, what's wrong with just confessing error to the public and saying, look, we made a mistake, we made a mistake in the way we charge this case. We have an interest in doing justice, and doing justice means also safeguarding the constitutional rights of the defendant. That's not an original comment of mine. Back to the United States Supreme Court said that in a case called Burger

versus the United States back in nineteen thirty five. And so I'm surprised, rather than confess and error, say we made a mistake of going on the offensive in that manner. How big a win is this for Alec balwin that this charge was dropped. Well, here's the thing. It's that a court win and the sense that it shouldn't have

gone forward anyway. And my sense is that the judge, had the prosecutor not cautious, had the defense not raised the issue, the trial judge likely would have raised the issue and then it would approved disasters for the prosecutor at that point. But what it does, it's an emotional win because the general public might be inclined to think, Look, if the prosecutor can't get it right at this early stage of the trial, what else should we believe about

this case? Does it change the trajectory of the case. No, I don't think it changes the trajectory of the case in the sense that both sides gets a void dear a jury and in theory, the twelve jurors and the alternates that are chosen should have very little knowledge about the case to begin with. The jury is not going to know that there was a charge that was dropped. They're only going to know the charges that are confronting mister Baldwin when and if this goes to trial, So

it doesn't change the trajectory of the case. On the other hand, it might actually make the case more simple for both sides. And what I mean by that is this is a case at its root of criminal negligence, and the jury doesn't have to be distracted by more than one theory of a charge or multiple charges that they have to decide between. Now they're simply deciding on one charge. And what is the procect you to have

to prove to make out that charge? Well, I have to prove that an ordinary prudent adult would have X size caution and circumspection before pointing the weapon and firing it. That mister Baldwin's conduct was so far out of the norm that an exceed an ordinary negligence. If you think of ordinary negligence, you and I are playing football. We're playing catch with a football on a crowded beach. We probably shouldn't do it, but so far we haven't hit

anybody with the football. We've been playing a game of catching, and all of a sudden we hit a beachgoer who's not aware with the football as an accident. That's ordinary negligence. People commit ordinary negligence which could end up in a civil court, but they committed every day they bump into each other on the sidewalk, you know, they feed on the freeway a little bit, not too far above the norm,

and they get into an accident. Culpable negligence, which is the type of negligence that you see in criminal trials as a higher burden of proof, and that means that an individualist is acting in a risky manner and that the end result would be or seeable by an ordinary adult of ordinary intelligence and So what the jury is going to have to figure out is, did mister Baldwin have a duty to independently inspect the gun or in some other means make sure it was secured or safeguarded,

not having live ammunition and not pointing it at an individual before firing, you know, having failed to do that. And so the jury's going to have to conclude business ordinary negligence or was there a heightened duty. Now here's the thing with firearms, Unlike walking on the sidewalk, playing football on the beach, you know, even driving a car,

firearms safety isn't a different heightened category. And the prosecutor can argue that, the prosecutor can argue that anybody who holds the gun has an extra duty of making sure they're doing it in a safe manner, and that's fundamentally different than you know, an ordinary day to day activity of an adult. Then the jury decides whether and just

this criminal or not. Baldwin continues to insist that while he pulled back the hammer on the weapon, he never pulled the trigger and apparently the weapon has been tested by the FBI, and there's nothing wrong with the weapon. If he holds to that, is that an uphill battle for him. Well, so I think two points on that. One is, you know, the FBI and their crime lab,

their experts, that's the platinum standard. And I don't know, off the top of my head of a better and more professional group of individuals than those who work at the FBI. Have no idea who handled the weapon at the FBI, But the FBI is the top of the line in doing this kind of thing. Having said that, mister Baldwin may very well believe that he didn't pull the trigger and he pulled back the hammer. Human memory

is fallible. That's why, for example, when a number of people see a plane accident who are on the ground, the National Transportation Safety Board, when they investigate that accident, they don't really take into account eyewitness statement with any degree of certainty, because invariably one witness will say the tail flew off first, and other I'll say the engines dropped off the plane, and a thirdle say it blew up.

You know, It's how the brain receives information, stores it, and processes memory, and it doesn't do a very good job of it in stressful conditions. So I think you know, in mister Baldwin's mind, the public ought to consider that he believes he's telling the truth. The scientific and engineering the stem data from the FBI crime lab may very well rebut what he believes. The only way normally to get his belief to a jury is for him to testify, unless the prosecution gets it in, you know, for some

odd reason they open the door for it. So it can come down to this, the experts at the crime lab versus the witness, and that's not unheard of in criminal trials. The Dad Hutchins widower to a list of forty six witnesses. What does that indicate to you? But they're still building their case and if a statement was made by the deceased for it to be admitted into evidence.

So there's a rule of evidence that if a witness is unavailable because they've died or they can't be reached, then their statement may be admissible through a third party. The courts are pretty tough on not letting hearsay evidence come in. And this Hutchins made a statement and she were alive and someone else tried to get it in,

more often than not it would be hearsay. So my sense is that the prosecutor has something that Hutchins said that they want to get into evidence and the only way to do it is through the person who she said it too. There are so many civil lawsuits involved here. Do any of those impinge in any way on the

criminal proceedings? No? Actually, normally, civil lawsuits are held in a bayand until a criminal proceeding is done, and attutes of limitations on tort suits do not exhaust if they've been held in abeyance because of an appending criminal trial. And the reason for that is so that civil lawsuits

do not impinge on a criminal suit. Now, with the civil lawsuits, my understanding as depositions may have already been taken, interrogatories may have already been accomplished, and so witnesses may have already said things that could be used against them in a trial or could contradict testimony that they gave in the criminal trial, and that puts everybody at rest. The Bollwing team is trying to remove the DA from the criminal case because she's also an elected New Mexico legislator.

Does that have legs? You think that is a possibility. Well, if the unique argument, it is not by any stretch a frivolous argument. It's rooted in the state constitution. It's never been brought up as an issue before the courts before. We have a part time legislature in New Mexico, so it makes it somewhat different than the United States Congress and a certain sizable fraction of our legislature our lawyers.

There was that decision issued by the US Supreme Court in nineteen seventy four, making it an old decision about the separation of powers and what the courts can and can't roll on. That decision had to do with an anti war group that was protesting the Vietnam War, latching onto a really important provision in the United States Constitution, which called the incompatibility Cause. But it basically stands for the fact that members of Congress who are elected into

their office cannot hold executive positions. So you can't serve in Congress and be a US ambassador to Russia at the same time. You can do one or the other, but an ambassador works for the president, and if your people have elected you to Congress, you have to be independent as a member of Congress. So in that nineteen seventy four cases it perculated through the court. Almost every judge that touched that case at the district Court, at

the Court of Appeals, and at the Supreme Court. The justices agreed that congressman who held military commissions in the reserves and in the National Guards were violating the incompatibility clause because when they got called to duty, they were in the chain of command of the sitting president and therefore we're not independent members of Congress. But then the Supreme Court ruled it's a political question, meaning that is a decision that can only be answered by Congress itself

or by the voters. Now this case is somewhat different because Alec Baldwin is affected directly, so we have standing to bring this issue before the court. But then he has to articulate a harm and what is the harm to him personally that the special prosecutor the appointment of the special prosecutor has to him? I mean, does he have a right to choose who's prosecuting him and the

answers he does it. On the other hand, to the people of New Mexico have a right to make sure that the three branches of state government are doing their jobs in abiding by the Constitution. I think, in a sense, the Baldwin defense team has a right idea on the state constitution. Having said that, I'm not confident at all they'll prevail because they can't really articulate a harm to mister Baldwin. Thank you so much. That's Professor Joshua Castenberg

of the University of New Mexico Law School. You're listening to Bloomberg.