A Convergence of Lies: Fox and the Trump Campaign

Image courtesy of Meidas Touch, from the January 6 Committee Hearings

Two separate news items broke on Wednesday that, upon closer inspection, feel closely related, even if driven by different and separate forces.

First, the judge in the Dominion defamation case against Fox, Delaware Superior Court Judge Eric Davis, sanctioned the network for failing to turn over evidence in discovery. Specifically, a former Fox producer, Abby Grossberg, who is now suing the company, revealed that she possesses audio recordings of behind-the-scenes conversations with Rudy Giuliani, Sidney Powell and Trump campaign officials where they admit they had zero evidence to support their lies about Dominion and a stolen election. Fox officials apparently knew about these recordings but still failed to produce them. Dominion will now have a chance to conduct additional depositions on the network’s dime, and the judge plans to appoint a special master to review whether Fox and its attorneys lied to the court and withheld key evidence—all this on the eve of trial.

Second, the Washington Post reported that in recent weeks, Special Counsel Jack Smith has focused much of his efforts and questioning around the fundraising efforts of the Trump campaign. Smith is investigating whether federal crimes were committed because the fundraising was fueled by false claims of election fraud. Specifically, Smith and his investigators are exploring whether officials knowingly misled donors by spreading false election claims in order to raise hundreds of millions of dollars, whether they misrepresented where the money would go, and how the money was ultimately spent.

While reading these stories, it struck me that they are related in a meaningful way, even though one is a private civil suit and one is a federal criminal investigation. 

Dominion’s civil suit has centered on whether Fox knew that the election-related lies it was promoting about Dominion were false. But those lies originated from allies of the former president, such as Giuliani and Powell, and so it stands to reason that such evidence is in Fox’s possession. Those recordings are likely now highly relevant to Jack Smith’s investigation, which now encompasses the money trail for what I call the “The Big Grift.”

Let’s take a look at what evidence has surfaced and how it came to light. Then let’s see how that might fit into the larger puzzle Jack Smith is now trying to solve: namely, whether the Trump campaign used The Big Lie to commit massive wire fraud.

Dear Abby…

In the middle of the $1.6 billion defamation case, it became clear to former Fox producer Abby Grossberg that she was being set up. Grossberg was the senior producer for Fox host Tucker Carlson and the former producer for host Maria Bartiromo. Grossberg believed that she and Bartiromo, as two women involved in Fox’s broad practice of airing false 2020 election claims, were being targeted to take the fall for the entire company. Grossberg filed two separate lawsuits, in New York and Delaware, alleging gender discrimination and accusing Fox executives of coercing, intimidating and misinforming her in order to influence her deposition in the Dominion case.

The timing could hardly be worse for Fox. The defamation trial is set to begin on Monday, and Judge Davis has already ruled on partial summary judgment that Fox’s statements were false as a matter of law. Fox desperately hopes to prove that it did not knowingly air false election claims. But Grossberg is now expected to be a key witness for Dominion, and she comes armed with receipts. 

Specifically, Grossberg maintained recordings, made by her during calls between Bartiromo and Trump officials, that demonstrate the officials themselves had doubts about the evidence supporting The Big Lie. The tapes are damning, which might explain why Fox tried to bury them.

For example, as reported by Alex Wagner in an exclusive on MSNBC Wednesday evening, in one call on November 8, 2020 between Giuliani and Bartiromo, the Fox host informed Giuliani that she would be asking him for “as much evidence as you can tell us about these lawsuits,” and that “whatever you can tell us in terms of evidence would be really helpful.” 

Giuliani, who became the chief purveyor and face of The Big Lie, assures Bartiromo that he can tell her “exactly what we have,” yet fails to offer up any concrete evidence, even while actively downplaying his knowledge about the Dominion voting machines. He admits the following:

• That proof about suspect Dominion software is “a little harder” to show and is still “being analyzed right now”;

• That he can’t tell her whether problems in two races in Michigan applied to the whole state or not; and

• That while he’s “read” that Nancy Pelosi has “an interest” in Dominion, he “can’t prove that.”

Another recording, made December 5, 2020 between Bartiromo and an unnamed Trump Campaign official, is also damning. In it, Bartiromo asks whether any of the Dominion machines have been inspected. The Trump Campaign official admits the following:

• That “during the audit, they did check on the machines”;

• That, “off the record,” the Georgia Secretary of State “did a fair bit of looking into the machines” and that the “audit came in pretty darn close to what the machines’ count was with the receipts”; and

• That their understanding was that “there weren’t any physical issues with the machines on those inspections.”

While this Trump campaign official was admitting there were no issues with the Dominion machines, that same day, Trump held a rally blasting Dominion as a “joke” and claiming without basis that Dominion’s systems switched 6,000 votes to Biden in a county in Michigan. Later that month, against the advice of his lawyer John Eastman, Trump signed an affidavit in a Georgia federal lawsuit reiterating debunked election conspiracies, and then made his infamous phone call to Georgia Secretary of State Brad Raffensperger asking him to “find” 11,780 votes for him.

Mr. Smith goes to Washington…

The new evidence coming to light in the Dominion defamation case might be very interesting to Special Counsel Jack Smith. According to Wednesday’s Washington Post report, over the past weeks Smith’s office has sent numerous subpoenas relating to the campaign’s questionable fundraising to Trump advisers, campaign aides, GOP operatives and others involved in the 2020 campaign. He has already hauled in some of these individuals to testify before his grand jury in D.C.

At the heart of his investigation are the federal wire fraud statutes, which make it illegal to make false representations over email in order to con people out of their money. In the Trump campaign’s case, the emails raised some $250 million from his MAGA supporters, all on the back of The Big Lie. The emails included claims that the election had been “rigged” and that Democrats had tried to steal the presidency, a demonstrably false statement. But to charge wire fraud, a key question will be this: Did Trump and his campaign officials knowingly make these false representations as a part of a scheme with intent to defraud their base?

There’s another wrinkle to this. In some emails, the campaign cited a so-called “Election Defense Fund” as the intended recipient of donations, but it appears no such fund ever existed or was even planned. The “Fund” was in the end only a “marketing” tactic. Instead, the money went directly to the Trump campaign, and most of it remained unspent by the time he left office. Smith’s office has been asking witnesses with knowledge of the fundraising how the campaign had planned to spend the money as well as how it in fact was spent after Trump left office. Smith is also probing how the money was split between Trump and Trump-aligned groups.

That top Trump campaign officials might face wire fraud charges could provide significant leverage for Smith, particularly if he can show that these same officials were saying privately that there was no evidence of fraud, even while publicly using false claims of a “rigged” or “stolen” election to raise money. 

So far, only two of the recordings Grossberg made have been provided to the press and played in open court, and there may be more to come as the trial progresses. Grossberg is likely now a key witness for Smith to look into, if he hasn’t already, given the kind of receipts she kept.

And that’s bad news not only for Fox in its lawsuit but for anyone using The Big Lie to enable The Big Grift.