// A good attorney knows how to make the best of a bad situation. And so it was that Fox News’ attorney Blake Rohrbacher found himself arguing before Delaware Superior Court Judge Eric Davis that newly discovered emails in Dominion Voting Systems’s $1.6 billion defamation suit “are relevant to Fox’s defense that Ms. Bartiromo did not act with actual malice.”

“Civil trials are not trials by surprise,” the judge tut-tutted as the defendant attempted to introduce new evidence just six weeks before the April 17 trial date, blaming “a technical error with its Relativity platform that affected its document index database.”

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Fox plans to use the emails between Maria Bartiromo and Dominion press flack Tony Fratto at the March 21 hearing on its motion to dismiss the case, arguing that they prove the Fox host might have believed the wild allegations about Dominion she was allowing Rudy Giuliani and Sidney Powell to spew on her show. But, although we haven’t seen all of the emails yet, the messages tweeted by the Washington Post’s Jeremy Barr seem to cut both ways.

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And here was Tony Fratto's Nov. 16, 2020 plea to Maria Bartiromo. Fratto is a former George W. Bush administration official. pic.twitter.com/0Rl3xrl4kq

— Jeremy Barr (@jeremymbarr) March 7, 2023

Bartiromo did say on November 20, 2021, “I’m not sure what to think” about Powell’s fantastical claims. But directly after that, she noted that “We will need to see hard evidence in the next 3 weeks,” a tacit admission that the lawyers had produced nothing of the kind. And indeed, that was after multiple emails from Fratto telling her that Giuliani and Powell’s claims about Dominion were “verifiably false” and “tinfoil hat conspiracy stuff.”

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Moreover, as Dominion’s lawyers will no doubt point out, Bartiromo had pretty good reason to know that Powell’s claims were false. On November 6, Powell emailed Bartiromo and also Fox Business host Lou Dobbs a document entitled “Election Fraud Info” which Powell had received from a “source.” As per Dominion’s motion for summary judgment:

In addition to promoting lies about Dominion, the sender claimed that Justice Scalia was purposefully killed at the annual Bohemian Grove camp during a weeklong human hunting expedition and that former Fox News CEO Roger Ailes (who died in 2017) and Rupert Murdoch secretly huddle most days to determine how best to portray Mr. Trump as badly as possible. The author continued: “Who am I? And how do know all of this? I’ve had the strangest dreams since I was a little girl was internally decapitated, and yet, I live The Wind tells me I’m a ghost, but I don’t believe it.”

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Bartiromo herself described the email as “nonsense” and “kooky,” and yet she continued to put Powell on the air. And assuming that Dominion meets the standard for a public figure — a determination which the court has not made — then recklessness as to the truth of the allegation suffices to establish actual malice under the Sullivan standard.

Furthermore, Bartiromo defends her reporting not in terms of its veracity, but by pointing to media outlets she perceives as left wing:

Are you saying I should not cover a sitting president contesting a presidential election? Should I just blow it off & go with the rest of the media who has taken us down rabbit holes based on their ideologies now for 4 years and counting? Is that what you suggest I do?

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This would appear to concede the point that Bartiromo’s coverage was based on her own “ideologies” and disdain for journalists who reported on Trump’s Russia ties (and everything else), rather than on the credibility of a lawyer ranting about plots by a dead Venezuelan dictator.

But, on the plus side, Judge Davis says that he’s working on getting this trial livestreamed. So maybe we’ll all get to see Bartiromo explain herself on the witness stand.

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Please, oh, pleasepleaseplease.

‘I’m not sure what to think’: Fox uses Maria Bartiromo’s persistent doubts about election as defense in Dominion lawsuit [Law & Crime]
Fox News Cites Newly Discovered Maria Bartiromo Emails In Defense Of Dominion Lawsuit; Judge Indicates Jurors Won’t Be Selected Based On Who They Voted For In 2020 [Deadline]

Liz Dye lives in Baltimore where she writes about law and politics

Topics

Courts, Defamation, Dominion Voting Systems, Fox News