Dominion Defamation; Fani Willis; Right Wing Identity Politics - Transcripts

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So, Washa, with all the evidence that Fox News was lying about the 2020 election,

is this the end of Fox News as we know it? It's complicated. I'm Asha Ringaba. I teach national security law at Yale University. I'm a former FBI special agent and a legal and national security analyst.

And I'm Renata Mariotti. I'm a former federal prosecutor, a practicing lawyer, and a legal analyst.

And we're here to help you understand topics that can't be boiled down to a soundbite or a tweak. Oh, boy. So, Renata, one of the big things that happened this past week is that we were able to see the motion for summary judgment, which was filed by Dominion Voting Systems, in its defamation lawsuit against Fox News. So, we can break down exactly what that means. So, Dominion has sued Fox News for defamation for false statements that it made that basically Dominion Voting Systems was falsifying votes and engaged in various types of conspiracies to throw the election to Joe Biden. And they've sued Fox News for $1.6 million.

Wait. No, what? I'm billion dollars. $1 million. Sorry. It's like a Dr. Evil moment. $1 million.

I'm billion dollars. Sorry. Million. Sorry. It's like a Dr. Evil moment. Dollars. $1.6 billion. $1.6 billion, which is a lot of money. And in order to show defamation, the court ruled that Fox News is a public figure, meaning that the legal standard for proving defamation is higher. It's not enough to show that they were publishing false statements. It's that they have to show that they acted with actual malice, meaning that they knew the statements to be false and acted with a reckless disregard for the truth. And so they lay out their basically all the evidence that they've gathered at this point through discovery.

$6 billion.

Sure. So in a civil lawsuit, when you file it, at an early stage, as long as what you set forth could be a potential claim, the case goes forward. And there's what Asha mentioned a moment ago, discovery, which is essentially both sides can get documents from each other. You can have people sit for depositions where you ask them questions under oath. And then you get to a point in the lawsuit, in a civil lawsuit, where you can move, as Josh said, for summary judgment, which essentially means that you can put all the facts that you have in front of the judge. You put some of the transcripts and the depositions, you put the documents, pieces, and, you know, your greatest hits from all the documents together, and you basically tell the judge, there's no real—the standard is there's no genuine issue of material fact here, and that you're entitled to relief. In other words, to use the example you said, Asha, actual malice—so here I think Dominion maybe public figure, whatever it is, there's an actual malice standard here, and malice, as you said, is not hatred or anything like that. It's that you—I think you articulated it, reckless disregard for the truth. So what Dominion was trying to show here is that Fox News knew what the truth was and essentially actively disregarded it in order—or were recklessly disregarded what the truth was. They didn't care what the truth was.

They just cared about a certain narrative. Right. And so if their motion for summary judgment is granted, they're basically saying there's nothing to go to trial, there's nothing for a jury to decide, and so they're basically asking for the—essentially bypass the jury trial and have the court say that as a matter of law, they've met the legal standard.

Right. Right. That's why they're using all the quotes from the Fox News personalities and executives, because the point is even if you take the other side's words as true and just credit the Sean Hannitys of the world and the CEOs of Fox News and all of them, even their words, you just take their self-serving words, that's enough. And I will say, I mean, one of the most interesting things about this, Asha, to me is I have seen a lot of defamation suits, I've litigated some, my law firm litigates a lot of them. It's a big practice of ours. But I also am asked—and I know you're asked to comment on them in the news. And most of the time, I have to explain to people that these lawsuits, there's a very high bar, and these lawsuits are often filed just to get a narrative out there and to make a statement, but they're not really serious lawsuits, particularly ones Trump files, a lot of them. But in this case, this is what actual malice looks like, right?

I mean, this is really something I've never seen evidence as strong. Yeah. And to the point of looking at the facts, even in the light most favorable to Fox News, the problem is, is that in their depositions, they're all admitting that they did not believe these claims of voter fraud. All of them are acknowledging that and conceding that they knew that Joe Biden won. So it's not even that they're trying to make some claim that they had some bona fide belief in this. But I think it looks like what Fox News's, at least initial defense was, was, well, this was all opinion. And I think the court had rejected that claim very early on, that this was not something that they were presenting as opinion, they were presenting it as fact. They were presenting it as incontrovertible evidence, as news, with the intention for their audience to believe it, not, hey, this is my opinion, you can check somebody else's opinion and come to your own conclusion. But to your point about, you know, how it's different, what I think is really interesting here is they are describing basically a business model from the top down, right? This isn't a defamation case against, you know, just Tucker Carlson, or just Sean Hannity. This is against Fox News as an organization that was making editorial decisions at the very top to very consciously and very deliberately promote narratives which they fully knew to be false and which even internally they were describing as BS, completely nuts, you know, they were describing Sidney Powell and Rudy Giuliani as, you know, crazy. And to the point of actual malice, I mean, there's in fact one incident where a journalist at Fox News is looking, is trying to fact check Donald Trump and Tucker Carlson goes off the rails and writes to the people at the top saying that she needs to be fired immediately for trying to uncover the truth.

Yeah, that was, I think, one of the most amazing and strongest pieces of evidence presented by Dominion is when the news side at Fox News, you know, there's this sort of, you know, artificial distinction that's drawn between their sort of daytime programming and the evening programming. The evening programming is all opinion and we can say whatever we want, but during the day we get some real journalists and the point is there are some at Fox that do try and she was a great example. She, by the way, I checked after I saw that quote, I'm like, where does she work now? She works at CNN now, but you know, at the time she's a real journalist and she's uncovering the truth and stating it out there. I actually watched the clip on the air where she said it. And like you said, that was the reaction. And you know, one of the phrases that I find very interesting from that complaint, and the reason I find it interesting is because I've heard it before. I very interested in this. I read a lot about sort of the right wing disinformation stuff is this phrase, respect the audience. And that is like the Fox News internal euphemism. If you are saying the truth about something that does not comport with whatever the right wing BS meme is of the day, then you'll get a phone call from some bigwig who's like, quote, respect the audience. And what that means is, the audience has certain biases, prejudices and beliefs.

Right. And I'm actually writing about this for my Substack post this week, which will hopefully be out tomorrow. So you can go to AshaRangappa.substack.com. You can get a free subscription that will include this particular post.

This is like the behind the episode.

But basically, I offer like, there's actually a model for understanding this, it's called the propaganda feedback loop. And the idea here is that unlike traditional media organizations, which strive to both, you know, appease their audience, but also balance that with truthful news, because there are consequences for reporting inaccurately, right, like they'll be exposed as dishonest and they might, you know, people aren't going to watch them. When you get into this far right ecosystem, the goal is not accuracy, it's providing identity confirming narratives. In other words, they have to produce identity confirming narratives, partly to keep their audience, but partly because they themselves have conditioned the audience so that to believe that any non identity conforming narratives can't be trusted. You know, like if you hear something that that conflicts with what you believe or, you know, with how you, you know, your partisan identity, then it is fake news. So in other words, they're sort of in a conundrum of their own making. And we see this because when I think initially they, you know, are actually reporting, I think after the call for Arizona and, you know, in these initial stages where they're not completely towing this big lie, they start losing audience and not losing audience to, you know, CNN or NBC, they're losing audience share to OAN and Newsmax to even farther right sites, because those sites, because what the audience is moving to is, where can I hear what I want to hear? Because anything that I hear that doesn't conform to what I already believe is news that can't be trusted. And of course, that, you know, Fox News eats itself, basically, if it tries to go down the road of any any form of real journalism.

Yeah, I remember during that time that Trump was tweeting for people, he was criticizing Fox News and tweeting for his followers to look at these alternatives, right? And it's because they were giving kind of an unflinching, reflexive, you know, affirmation of that narrative. It's interesting because there were, of course, lawsuits threatened there as well. I'm sure you also remember that I'm sure you see the clips of these Newsmax anchors shutting down people who are saying lies about Dominion on the air because Dominion had, I think, a very strong claim against Newsmax and OAN as well, and, you know, was going after them legitimately. And I think it's interesting because this seems to me like one of the rare, you know, rare areas where you can see very, like the public can see very distinctly and succinctly how law can matter. Because it let's just be real, if Dominion did not have the right to bring defamation suits, like Fox, you know, not only with Fox News, you know, probably, you know, be continuing to talk about Dominion on the air, but Newsmax, all these outlets, and I think Dominion has actually accomplished something for itself with these suits. Even if they ended today, I think they've made their point, and I think in the future, there will be some care that's taken when you're talking about companies that have a significant

amount of money that can potentially litigate against you.

Yeah, and I would think of defamation lawsuits as a way of protecting the integrity of the information market, right? I mean, we have, we talked about the marketplace of ideas, you know, you have other types of markets of the securities market. And so you have to put in certain kinds of regulations to keep it fair, to keep it, you know, on an equal playing field, like you, we don't allow insider trading, for example. And I think what this does is take players who have enormous power in that market and hold them to a standard so that they can't, or at least that there are costs to trying to distort it in a significant way, because otherwise people can't meaningfully choose between good ideas and bad ideas if the information being presented to them is false, but being presented as true.

Yeah, so, and a couple thoughts on that. I mean, first of all, you see a lot less regulation in this marketplace, the marketplace of ideas, and that's because of the First Amendment. So I want people to understand that, like a lot of times people are frustrated that, like, can't we do more about this information, you know, my family members are being brainwashed by so-and-so, and the answer is probably we can't do much because of the First Amendment. This is definitely an exception to that rule. That's, I think, an important point. And another thing I would also say is, you know, it nonetheless is an imperfect, you know, instrument. In other words, and this is the case for all regulation. If I have a regulation, you say insider trading, and the penalty is a million dollars for your insider trading. Well, if I can make, if I think that I can make a profit and my chances of getting caught are, you know, less than 50%, let's say I can make my million dollar profit. Well, I'll take the chance anyway, and if I get costs, that's just the cost of doing business. And so, one thing that'll be interesting to see here, like you said, there's big money, not millions, billion plus that they're seeking. Will the cost be high enough that the Fox News is like, you know what, we are not going to, we're going to be careful about some of this stuff in the future.

Yeah, and I don't know what this means for their bottom line. I don't know if having to pay 1.6 billion, you know, cripples them or takes them out. And Renato, just in terms of penalty, is it possible for even higher damages to be awarded? And another question I have for you is, what other remedy does Dominion have? Like, can they, can a court order Fox to say on air, we lied about these claims? Because if I were Dominion, that's what I would want, too.

Yeah, it's an interesting thing. I think, by the way, the way this is going to resolve itself as a settlement, I mean, I just, so everyone understands why that's the case. Like, let's just say that Dominion gets a judgment for 1.6 billion. And by the way, Fox News has more than 1.6 billion cash on hand. I read it. It has billions on hand. So they could pay that. It'll be very substantial. I mean, I have clients that will pay me a lot of money to defend a $10 million lawsuit, much less a, you know, $1.6 billion. I mean, that in a major corporation takes, you know, like I said, a $10 million, much less a $1 billion lawsuit seriously. So I do think, you know, this is a serious business to Fox News. But let's say a judgment is entered against Dominion for 1.6 billion.

presumably they had the money to do this but not everyone would. I think Fox News

yeah and is your sense that the motion for summary judgment won't be granted or

do you think there's a chance that it will in this case? I think it's a chance that it will it's interesting because if you told me there's hey we got this First Amendment lawsuit we're trying to prove actual malice I'd be like wow good luck with that you know that's very tough the idea of winning at summary judgment is really something cuz it's like wow but it might happen here and I think that's that's interesting and it's just the goalposts are so high the fact that we're even thinking that they might be met here is

like absolutely astonishing. There was just a report released from the special grand jury that was convened by district attorney Fonny Willis in Fulton County and I'm gonna let you take it from there and tell me what you think what it means where where we go from here and whether it's changed your view of anything on

that particular thread of the of the Trump saga. Yeah it's interesting we haven't talked about this for a little while it's almost like forgot about Dre where it kind of came back like oh I guess Dr. Dre's making albums still it's like oh okay forgot about Fanny Willis and she's she's back you know so the special there was a special report a very limited excerpts of the special report that came out from the grand jury I will say from the journalists all were telling mecern probably like this stuff like they thought this give me this big thing and there's only a few lines in it. What I would say is that it was very heavily redacted you know I there's also some posts from Donald Trump it's in I think whatever is is think truth oh yeah where he's like my name is not mentioned ya yeah you know yeah but uh yeah you know you know a lot of things got redacted there the reason why just so everyone knows is that you know if If, for example, we're preparing to indict Asha Rangappa, and we mention this in our document, while potentially I'm poisoning the jury pool, if I say, hey, we've determined that Asha's committed five crimes, and then I only indict you for four, then you're going to say, hey, the prosecutor's unfairly told the world that they believe that I committed this fifth crime, and they didn't indict me, and I don't have any due process. So it creates a lot of problems. So the smart thing to do is to redact all that stuff, which they did. So what do we know? What does this sort of suggest? I mean, one thing is I am absolutely convinced that she's going to indict Trump, and that takes a lot for me to say. Anyone who's listened to me for a while knows that that's sort of the opposite of where I am, but she's just, every signal from her is just like, she can't wait to go on television to talk about the potential that she could be, or she's indicting him. She's just super ready to do it, and she's elected official, just in a county that voted very heavily against Trump. There's just a lot of things that makes it kind of add, you can add two plus two and see that you're going to get there with her. I think it's a question.

Can I just add in her, oh yeah, where he's like, my name is not mentioned. Yeah, like, yeah, because it got rid of that question. Can I just add in her defense, she is the DA, and her specific county did suffer a harm. Sure. Through the various false allegations that Trump was making and that people on his behalf were making about people voting falsely, and we heard about Fulton County officials who've been harassed and had to go into hiding because of things that he was saying. So I do think that to the extent that prosecutors try to represent the people and vindicate the harms and injuries to them, I don't think she's doing that in this case. That is legitimately there.

Yeah, and I'm not saying the prosecution isn't warranted. I'm not saying that, but what I'm saying is the reason I'm so circumspect about what will Jack Smith do next or that sort of thing is because I genuinely have no idea what that guy is going to do. I mean, we've seen some photos of that guy, I like his beard, but I don't know anything about him. I mean, he's just sort of whatever he's doing. She wears her heart on her sleeve, so we can kind of read between the lines with her in a way that we can't with these people who aren't. That's not my style. It's not what I would do if I was in her shoes, even though I'm not afraid to talk publicly or talk on television. I wouldn't do that if I had that job, but it is what it is. So I do feel confident that that's going to happen. And so I just viewed this as sort of an interesting preview, and I think a couple of thoughts on it, I will just say, I mean, one is there's this line that people have focused on where the grand jury believes some people lied to them. One thing I will just say is it's probably the take that I would have of theirs, probably the opposite of what you would think. In other words, there's been all the speculation that because of that one sentence that they're gonna indict person A, B, C, or D, like, oh, is Rudy Giuliani going to be indicted for perjury?

would be.

And what are your thoughts on how soon that would be? I would think weeks. I mean, she's got to present this, my understanding, I'm not a Georgia lawyer, but my understanding of the procedure in Georgia, she's got to get another grand jury and, you know, represent the evidence. That's going to take some time. It'll take a few weeks, several weeks, I don't know. She's also, I suspect that there's an internal debate in the Fulton County DA's office as to what charges to bring. Sometimes you bring kind of like a thick indictment or a thin indictment, so to speak. Like you include just your strongest charges or do you throw Rico and all this other stuff in there? I would counsel for a thinner indictment, but you know, there's different there's room

for honest disagreement. And what was the point of doing this through a special grand jury? Like in other words, how would this have been different if she had just had a regular grand jury this whole time? Like, do you know what I'm saying?

I don't know that. That I don't know, because I'm not, I don't understand the procedure in Georgia state law. I will just say that. I mean, I did a lot of grand jury work when I was a federal prosecutor. We never had special grand juries. We never issued grand jury support reports. You know, we would have, you know, used, they were called sometimes special grand juries, but the specialness of them was just that they had a longer term, so we had, we could turn them over less just for the reduced administrative burden. But like, they were always just great. You know, we were just, we're never issuing reports. You're just putting through that.

Yeah. I just wonder if it's like to add to this idea that she's being extra cautious, like, you know, like, I didn't just go charging in to a grand jury to, you know, bring evidence to indict him. I first had all the evidence vetted by a special grand jury. I got back their opinion on what they thought of the evidence and whether it should even move up to the next level.

I'm wondering if that's a plausible interpretation. I will. One thing I will praise about her is I do think that she has approached this investigation with the sort of rigor that is required for a first of its kind indictment against the former president of the United States for a crime that probably has never been committed in this fashion in that district ever before. And so, you know, she interviewed, I think something like 75 witnesses, some enormous number of witnesses were interviewed and provided testimony. She's taken her time with this. There's been a lot of resources put into it. It's apparent that she's been, you know, really, she's been consulting with some smart people. And while I've, I joked, because that's part of, you know, it's part of the fun of our podcast about, you know, her baking statements, she's, I think, been careful not to say anything specifically that would create problems. And the redaction of the grand jury report, I think, is evidence of that. I mean, I think that was the right and the savvy approach. She's not doing anything that I think will undermine the prosecution. So I do think if I was in Trump's shoes, I mean, I don't know if he's getting bad advice or what.

But I wouldn't be tweeting like there's nothing about I'd be shocked if he's getting bad advice.

Yeah. Right. I don't think that there's, I don't think that my, my reaction to this wouldn't be, Oh, I'm not going to be mentioned. I'm not going to be charged. You'd be like, okay, I'm going to be charged and I'd rather be charged by her than by the DOJ. Um, but it's still going to be a real prize. Getting charged with a felony is a real problem. You know, no matter where that is from. So Asha, uh, you made the news this week. I have to tell you, you were over my Twitter feed for re different reasons. And I thought I, we have to discuss this before we go because I, it's rare that you are your own news topic.

Yes. And I mean, I was covered, I was covered in right wing, uh, media, uh, ironically enough.

So it's coming first full circle. Wow. Yeah. So you're, you're kind of a big deal. So, okay. Help me understand what happened and why, why is your name on Twitter suddenly something different?

Like what, what, what happened? Well, after Nikki Haley announced her candidacy, um, you know, a lot of people were commenting on her and, uh, I chimed in, um, and some people regurgitated, uh, an earlier, a tweet that from a couple of years ago where I called her out, this was when she said there's no racism in America and, um, our America is not a racist country. And I had tweeted to her, oh, is that why you go by Nikki instead of, um, your first name and, you know, that, and then what happened was at that time people like somebody, I guess, decided to go on Google and saw that, which you'd, and saw that Asha is my middle name. They're like, ha ha, she goes by her middle name too. And so this became like their big gotcha, which, you know, it's never, it's never been a secret that I have a first name, um, that's different, uh, Renika. Uh, and so, um, and I, my, my tweets auto-delete like after a year, um, and so some, yeah, yeah, they do. Um, and so, um, somebody was like, oh, she deleted this tweet. She's you know, um, you know, I, she's not trying the name thing again, da da da da da. And I was like, there's no name thing to try. Like, I go by my middle name. This is precisely why I get, and I, you know, I understand what, where Nikki's coming from. Um, and I just want her to acknowledge it.

Yeah. So what's up with that? Okay. Well, that I didn't get. So help me understand that. I saw some of this back and forth. I've got the stuff with Nikki passie, but what's the Ashley help me understand.

I'm just I'm just trolling. I'm just trolling it. You know, I'm trying to hide my oh, you're trying to hide where you are trying to hide my teaching so off, you know, because you know, as soon as I put Ashley, they'll do that. I, I'm going to have different iterations. I might change it again today.

You know, I'm just rolling, you know, oh, you're trying to hide where you are trying to hide mybass are, you know, because, you know, like, as soon as I am today. Well, what's going to happen is Elon Musk is going to make it so you can't change your Twitter name again, and then you'll be stuck with it.

I know, then I'll be. I have thought about that. One thing, so then I was on Mehdi Hassan's show on Sunday night with Wajat Ali. So it was like three South Asians were all basically

slamming on Nikki Haley. It's kind of amazing that South Asians really can't stand her. That's interesting. Do you think that's sort of a universal thing? That's really interesting because I, I, at one point, actually thought, okay, she was like, I don't know if you remember, she had this moment in South Carolina where she's like took down the Confederate flag. And I'm like, Oh, she's kind of like triangulating a little bit and trying to be a little bit more moderate. And I thought she was interesting back then. And then she turned out to be like, she opposed Trump at first and she she was with Rubio and then she went all in on Trump

and she became this like Trump's Cinco fan. Yeah, and I think that's why she's such a fraud. Like, she has actual no convictions or backbone. She's like many of these, you know, MAGA Republicans who will change and shape shift to do whatever they can to get power. And, you know, if you actually, a year before she took down the Confederate flag, there's a video that came out of her with the Sons of the Confederacy, where she's talking about, you know, how the Confederate flag really represents tradition and she's in favor of a Confederate History Month. And so I mean, I don't know, like, I'm, I'm glad she took it down. It took a massacre in a, in a black church for that to happen. Um, so whatever. But I mean, look, when she first was elected, I was, I was happy for her and proud in a weird way as another, you know, Indian American. But you know, she's just been a big disappointment. And I think at this point, we are very fortunate to have a number of South Asian politicians that, you know, one does not need to champion her as kind of the only representative of our group. We've, you know, made a lot of strides.

I applaud that, but it doesn't mean that she doesn't suck. I hear you on that. By the way, I think it is interesting that two of the most successful early like success South Asian politicians were Republican, Republican southerners who

used anglicized first names, right? Because didn't Bobby Jindal was Bobby Jindal, we're

Republican Bobby Jindal, and they both converted to Christianity. Oh, is Nikki a Christian

as well? I didn't. Yes. Yes. So her family is a Sikh. Um, and then at some point she, she converted to Christianity. And I believe Bobby Jindal is Catholic and I don't, and I don't, I mean, you can double check this. I don't, because there are Catholics in India and Christians. Um, I'm not sure if his family was, I don't think so because his, his original name does not tell me that, um, he's from a region of India that, um, is predominantly Catholic. But yes. And so like, I don't know. It's like, you know, Bobby, his, his first name is huge, but look, I get it.

for generations at some point. Yeah, absolutely. Absolutely. Wow. Well, maybe, maybe you'll be, uh, in the, uh, a block of a future episode. This is, uh, this was interesting. Uh, I thought the show me the most interesting part of it was that you, that you got sucked into it.

Uh, yeah, this was interesting. Yeah. It took up my whole day on Thursday. Amazing. Hi, I'm Moji Alawariel from the feminist buzz kills live pod. The only podcast that helps you navigate the news in this post-pro anti-abortion hellscape each week with co-hosts Marie Khan and Liz Winstead. We dissect all the news from that sketchy intersection of abortion and misogyny with providers and activists working on the ground. The cherry on top is we have amazing comedy guests who help us laugh through the rage. Feminist buzz kills live drops Fridays, wherever you pod, listen and subscribe. Cause when BS is popping, we pop.