CNN This Morning, April 19
00:00:00:01 – 00:00:22:26
So let’s bring in now CNN media analyst and Axios media reporter Sara Fischer and attorney Ken Turkel. He represented Sarah Palin in her failed defamation suit against The New York Times, as well as Hulk Hogan, who successfully sued Gawker for invading privacy and was awarded $115 million. So glad to have both of you on. Thank you so much, Sarah.
00:00:22:26 – 00:00:27:22
We’re going to start with you. You were in the courtroom for this last minute decision. What was that like?
00:00:28:10 – 00:00:46:27
It was not a total shock, Don, because we were waiting for opening statements after the jury selection was finalized for many hours. And they kept saying, oh, this is just a five minute bathroom break. But here we are, two and a half hours later, we knew. We also are watching the Dominion attorney, Justin Nelson, walk over to the Fox attorney, Dan Webb.
00:00:47:04 – 00:01:03:19
They did not look flustered. They looked very calm. They looked kind of happy. And so when you’re watching two attorneys interact that way, you know, something is coming. At that point, every single reporter in the courtroom is sort of rewriting the settlement decision. We kind of knew it was coming, but it was still a shock because we had gotten all the way here.
00:01:03:19 – 00:01:17:27
You know, we’d had months of pretrial testimony and hearings. And we had figured that at this point they had done everything they needed to do to allude to the fact and prepare for possibly going to trial. So this was truly an 11th hour decision.
00:01:18:03 – 00:01:38:01
Ken, can you take us into the scenes behind the scenes of what you know, a settlement discussion like this is after a jury has already been selected, seated. You’re about to do opening statements because notably missing in here, it’s a lot of money. Notably missing is a requirement which Dominion wanted initially for the Fox News personalities to publicly apologize on air.
00:01:40:06 – 00:02:00:12
It’s always interesting to me when cases settle at these moments, right? When a jury’s picked, right when they’re about to open on a mid-morning break, I like to say if I’ve gotten ready for trial, if I prepared the trial’s actually the fun part. But the you know, you can never put a figure on what’s going on behind the scenes.
00:02:00:19 – 00:02:22:08
It could be the non-monetary conditions. Somebody could be hung up on some of the monetary confidentiality, which obviously, at least in part is it happening here? Because we know the number, the I thought I heard yesterday, I haven’t seen a hard copy of any settlement agreement. I thought I heard yesterday that there was some apology component, some non-monetary component.
00:02:22:23 – 00:02:46:19
But at the end of the day, you know, these high stakes cases and I, I think one thing it’s easy to lose sight of in the public eye is the idea that there’s no risk, let’s say on the Dominion side, you’re trying with a jury. There’s always a risk. There’s always some risk. Okay. You certainty. You lose your self-determination of the closure of it, and you start with your client’s goals.
00:02:46:19 – 00:03:07:07
And they had monetary goals, obviously, large monetary goals that were predicated on lost profits, a business valuation issues that diminished the value of the business. They’re achieving their goals at that number. Okay. And it’s reckless to a degree, did not settle the case in those scenarios. So I wasn’t that surprised. I really wasn’t.
00:03:07:15 – 00:03:08:00
00:03:08:27 – 00:03:10:11
Not really. No.
00:03:11:24 – 00:03:17:07
Listen, we were sort of monitoring the papers. Here it is in The Wall Street Journal, which was looking at,
00:03:17:07 – 00:03:17:10
Above the fold.
00:03:17:10 – 00:03:40:29
above the fold for, you know, the Murdoch owned papers, not in the post at all, and look through and look, I can’t be 100% sure. I went though the Post. I went through it like two or three times. It just sort of went through it. I did not see it. The thing here, though, I think Sarah, is people are disappointed not about the amount because they think it’s a, it’s a, it’s a good amount.
00:03:41:17 – 00:04:01:09
But that’s the people who actually need to hear this. The Fox News viewers won’t get to hear it because it’s monitored. We looked at it. We checked the Fox News website last night. There was no mention of it on their homepage. The article they do have written doesn’t even say how much money Fox is paying. So who actually wins here?
00:04:01:10 – 00:04:15:23
It’s interesting. I actually was sitting next to a Fox News reporter in court and I was watching them diligently take notes and just having them be in court to me felt like a little bit of a level of accountability. Their media analyst, Howie Kurtz, did end up covering it towards the end of the trial. He said in the beginning he wasn’t allowed to.
00:04:16:00 – 00:04:36:11
But to your point about not making an apology, you know, the thing that actually makes me more upset is they don’t have to issue any corrections or any retractions in a journalistic entity. If I get something wrong, I have to correct it. That’s the way that it goes. But to your point about what are the broader implications here, you have to remember Fox is facing many defamation suits.
00:04:36:11 – 00:04:53:14
It’s not just Dominion. They have a suit from Smartmatic. They also the suit with one of their own producers that’s suing them, claiming that they misled her during testimony. And so what happens is when you settle a case like this, you’re setting a precedent for how you legally are going to likely need to handle all of the other cases.
00:04:53:14 – 00:05:11:10
In this case, we know that what they’re willing to do is pay up in order to make sure their execs never have to face a trial. You can best believe that Smartmatic, who’s by the way, their lawsuit is much bigger than Dominion’s, is going to leverage the discovery that they found during the Dominion hearing to strengthen their case.
00:05:11:17 – 00:05:19:07
And they’re going to leverage the fact that Fox just made a huge payout to a different competitor when they’re trying to negotiate for their settlement.
00:05:19:15 – 00:05:30:16
We all been here before, and I mean, not a lot, but where you’ve had that to go on air and say, even if we didn’t do it, we start, we regret the mistake, we apologize, whatever, and we correct it and move on there.
00:05:30:26 – 00:05:36:13
They don’t and viewers don’t care by the way, like viewers don’t care if you get something wrong. It builds credibility to own your mistake.
00:05:37:08 – 00:05:54:25
Great point. Ken, can we talk about Smartmatic $2.7 billion defamation lawsuit? To Sara’s point their attorney essentially said yesterday, we got all this discovery from Dominion. We’re going to use that. So what does you think this case settles as well?
00:05:56:13 – 00:06:15:26
Smartmatic is lagging behind. They were appealed. I think they were in New York. And you get an intermediate appellate right immediately on any motion there. So their discovery, I think, is just starting, but there’s no way they’re not going to capitalize on what’s out there. Interesting point, because Sara brought up the Abby Grossberg tapes right?
00:06:15:27 – 00:06:16:07
Yeah, the producer
00:06:16:07 – 00:06:39:19
Right. And think about this, because this dawned on me when you asked what’s going on, the special master appointment occurs yesterday afternoon. I believe Judge Davis rules on this. Shortly thereafter, we get the settlement. And I’m wondering how deep those tapes go and what’s in there. So they’ve got a treasure trove here. Tell us whether it’s admissible in their case or not is a different issue.
00:06:39:29 – 00:07:05:18
But at the very least, it’s going to give them a very broad set of boundaries to design an attack on their own discovery front. And there’s just no way that it doesn’t help them immensely. It’s honestly like having a peek behind the curtain. It makes your job a lot easier. I can’t see in the context, and I don’t know much about Smartmatic in the sense of how they design their damages, you know, to me, this is a pure breakdown of business damages, right?
00:07:05:23 – 00:07:26:26
Resident Hogan I got like 60 million non-monetary, right? So at the end of the day, we’ll see how valid the number is. But I cannot see Fox in the wake of this protracted night and not trying to resolve it. It doesn’t make sense, right? You know, you sort of clean the house up completely, put it all the rest.
00:07:27:21 – 00:07:29:18
But who knows, maybe Smartmatic won’t let them.
00:07:29:29 – 00:07:40:28
And we’re discussing all of this. But that is what settlements do. You negotiate. We don’t have to do this. We’re going to pay you this in order for us not to do that. Then that’s that’s how it happens. I thank you Ken and Sara. Appreciate it.
00:07:41:08 – 00:07:43:21
Thanks for having me.