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Dominion Settles with Fox...

At the last moment, after jury selection had apparently commenced, lawyers for Dominion Voting Systems (DVS) and for News Corp (which owns Fox) reached a settlement agreement, with DVS getting a check for $787.5 million. This may well be the largest defamation settlement of all time, and if it's not #1, it's certainly way up there. There is no way to be certain, because many large defamation settlements (unlike this one) are sealed.

Yesterday, we did not imagine the two sides would be able to find a middle ground satisfactory to both. However, we also were not highly motivated by the fact that hundreds of millions of dollars hung in the balance. Probably the best way to think about this is to run down what each side got out of the agreement. Starting with Fox:

In short, Fox managed to limit their financial exposure to an amount that is a bitter pill to swallow, but still within the company's means. They also put themselves in a position to maintain the fiction, for their viewers, that this story doesn't exist. For the second day in a row, we give you the front page of the Fox website:

There are stories about Joe Biden's taxes and wokeness and the Bills' Damar Hamlin, but nothing about the settlement.

Fox also issued a statement that read, in part:

We are pleased to have reached a settlement of our dispute with Dominion Voting Systems We acknowledge the Court's rulings finding certain claims about Dominion to be false. This settlement reflects FOX's continued commitment to the highest journalistic standards. We are hopeful that our decision to resolve this dispute with Dominion amicably, instead of the acrimony of a divisive trial, allows the country to move forward from these issues.

As you can see, Fox is not actually admitting to having lied, it's only admitting that the court said the network lied. That sort of weaselly verbiage is what one expects from lawyers, though this approach is also key to "FOX's continued commitment to the highest journalistic standards." See, for example, the lead headline in that screen capture that subtly implies that Joe Biden is misrepresenting his true income.

Meanwhile, here are the things DVS got:

In other words, Dominion's victory isn't going to reach the ears of the hardcore Fox fanatics, but those folks are lost to DVS anyhow. Anyone else who follows the news is going to walk away understanding that Fox lied and lied and lied some more, got caught, and had to pay up. Further, even if the reputation of DVS is permanently wrecked, well, the company has a market value of about $50 million, and annual revenues of about $17 million. So, even if DVS makes zero sales for the next 20 years, it still comes out ahead, financially. Probably, they should just take the cash and get out of the voting machine business. Or, at least, take the cash and rebrand.

Undoubtedly, many people will be disappointed that Fox isn't going to take a beating in court over the next few weeks. That may be so, but the network and its parent corporation aren't out of the woods yet. There's still the suit from Smartmatic, which asks for more money ($2.7 billion plus punitive damages), and which involves claims that were arguably even more outlandish than the ones made against DVS. Further, at least one News Corp shareholder has already sued, and at least a dozen law firms are "chomping at the bit" to get in on that action, given that reckless management is going to cost shareholders a lot of money.

Meanwhile, although DVS has its money, it may very well still get its day in court. Recall that it also has lawsuits pending against smaller fish, like Mike Lindell. We don't know how many MyPillows he has sold, but we're confident it hasn't been enough to leave him with $700 million in the bank. So, DVS is in a position to take the fat payout from the deep-pocketed foe, and then use a court case against a shallower-pocketed foe to shred the whole narrative put forth by Donald Trump and his allies. (Z)

...But the Trump Defamation Case Marches On

Not everyone is clever enough to know when they have serious legal exposure, and should probably pay to make an unfriendly case go away. And so it is that Donald Trump and his lawyers are deploying their usual bag of tricks in the defamation case that has been filed against the former president by E. Jean Carroll. There are two broad goals here: (1) to drag things out so long that Trump can try to avoid the suit entirely by virtue of being a presidential candidate in the midst of an election cycle or (2) to muddy the waters a whole bunch, in hopes of creating many and varied grounds for appeal in the event of a loss.

The current line of attack from Team Trump is that his arrest at the hands of Manhattan DA Alvin Bragg has poisoned the well against him, and will mean that The Donald could not possibly get a fair trial while the Bragg matter is underway. Because, of course, before Bragg secured an indictment, Trump was an unknown businessman about whom nobody had an opinion.

Perhaps this argument sounded pretty good in the offices of... well, wherever Trump's lawyers' offices are (in the same strip mall with a Four Seasons Landscaping franchise?). The problem here is that the judge in the case, Lewis Kaplan, did not spend yesterday either being born or falling off the turnip truck. The second problem is that Kaplan did go to law school, and has been a judge for many years, so he knows what a silly Hail Mary pass looks like. And yesterday, the Judge advised Trump in no uncertain terms that he wasn't buying what the former president is selling (in that way, the Trump team's legal argument is like Trump steak, Trump vodka, Trump airlines, etc.).

Here are Kaplan's exact words (well, some of them):

There is no justification for an adjournment. This case is entirely unrelated to the state prosecution. The suggestion that the recent media coverage of the New York indictment—coverage significantly (though certainly not entirely) invited or provoked by Mr. Trump's own actions—would preclude selection of a fair and impartial jury on April 25 is pure speculation. So too is his suggestion that a month's delay of the start of this trial would "cool off" anything, even if any "cooling off" were necessary.

Kaplan also observed, using prose that is only slightly more delicate, that neither Trump nor Carroll is a spring chicken, and that neither of them is getting younger, nor is their memory getting better. So, this matter needs to be adjudicated promptly.

Since Trump is not the settling type (even if his wives are), and since the Judge is not tolerating any of these stall tactics, it would seem that the trial will move forward as scheduled. Jury selection is set to begin next Tuesday. (Z)

Today in Judicial Dishonesty, Part I: Another Skeleton from Clarence Thomas' Closet

When Clarence Thomas was confirmed to the Supreme Court three decades ago, the hearings focused on behavior that was almost certainly sexual harassment, but also more broadly on Thomas' less-than-stellar ethics. It would seem that the senators who gave the then-nominee the third degree were on to something, because more and more information continues to come out about the Justice's less-than-forthright financial disclosures.

The latest news, courtesy of The Washington Post, is that Thomas has been reporting between $50,000 and $100,000 in income annually from a real estate venture started by his wife called Ginger, Ltd., Partnership. The problem here is that Ginger, Ltd., Partnership hasn't existed for since 2006. Some of its assets were reassigned to a holding company called Ginger Holdings, LLC, but Ginger Holdings, LLC does not appear on any of the Justice's disclosure forms.

There are only two possibilities here. The first is that Thomas has been doing a slapdash job on his forms for some reason, like he doesn't take the task seriously. If this is the explanation, then it raises the question of what other alleged sloppy errors he might have made. It also calls into question his explanation that he did his due diligence with the luxury trips bestowed upon him by Harlan Crow, and that he therefore had good reason to think that reporting was not necessary.

The other explanation is that Thomas was trying to hide something. Claiming $50,000 to $100,000 in income from Source A would provide a cover story for $50,000 to $100,000 in income that's actually from unethical/illegal Source B, should anyone start asking questions. There is, as yet, no suggestion that Thomas was on the take, and was receiving money from the NRA, or the Russians, or corporations with business before the Supreme Court. However, it's at least possible, particularly since his finances have not been subjected to an audit as yet.

And that brings us to an obvious question: What next? Thomas, for his part, has promised that he will revise his disclosure forms to reflect the new information that's been reported this month. Great, Mr. Justice. Talk about closing the hatch after the chickens have flown the coop.

Writing for Slate, Virginia Canter, Norman L. Eisen, and Richard W. Painter, all of whom worked as ethics lawyers in the White House, believe that this is a slam dunk, and that a thorough investigation is both warranted and necessary. We are inclined to agree, but the problem is exactly who might launch such an investigation. The House could do it, but there's zero chance Speaker Kevin McCarthy (R-CA) would go for it. The Senate could do it, but there's little they could do with any dirt they turned up, unless the House was willing to adopt articles of impeachment. Which, again, isn't happening. Chief Justice John Roberts can do it, too, though he seems unlikely to make such a strong move against a longtime friend and colleague, particularly one on the same side of the political aisle as Roberts.

That leaves the most likely candidate, The Department of Justice. We have written, and we believe, that AG Merrick Garland is sensitive to charges that the Democrats have weaponized the Department. And we think the AG may be leery of putting Thomas under investigation, for fear of riling up opponents of the two Trump investigations. That said, we have also written, and we also believe, that Garland places enormous value on the rule of law. And Thomas has done enough problematic or questionable stuff here that it really requires looking into, if for no other reason than to keep other judges from being tempted to break the rules.

So, our guess is that if Thomas does find himself under scrutiny, that scrutiny will come from the DoJ. We were disinclined, last week, to think that Garland would be willing to take on this particular hot potato. But now, we'd guess it's something like 60/40. And who knows what other dirt ProPublica, the WaPo, or some other outlet might still come up with. (Z)

Today in Judicial Dishonesty, Part II: Matthew Kacsmaryk Under the Microscope

Clarence Thomas isn't the only member of the federal judiciary with questionable behavior in his past. Thanks to the mifepristone decision, reporters are looking under every rock for dirt on Judge Matthew Kacsmaryk. And the folks at The Washington Post, in addition to their work on Clarence Thomas, have just reported on a skeleton it found in Kacsmaryk's closet.

The matter is a little bit inside baseball, but before he was a judge, Kacsmaryk was a right-wing-think-tank activist who did the sort of things that you do when you work at a think tank, like write scholarly articles. And during the Obama years, he penned a law review article that savaged gender-reassignment surgery ("[doctors] cannot use their scalpels to make female what God created male") and that lambasted abortion pills ("[doctors] cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children").

Naturally, during his confirmation hearings, Kacsmaryk offered up the usual platitudes about calling balls and strikes and following the law and not letting his personal views interfere with his jurisprudence. Nobody really believed it then, but the news of this law review article coupled with the mifespristone decision means that an argument can be made that the Judge perjured himself. On top of that, and making things worse, is that when he was nominated to the federal courts by Donald Trump, Kacsmaryk arranged to have his name removed from the article, to be replaced by the names of two of his colleagues. That adds to the argument for perjury, as part of the confirmation process is that judges have to disclose everything they have written.

The odds that Kacsmaryk is sanctioned in any way for this are roughly equal to the odds of your winning the lottery. Without buying an actual ticket. Still, it contributes to the already overwhelming perception (as indicated by polls) that the ruling was governed by politics and not by the law. And the more that it stinks to high heaven, the more inclined Chief Justice John Roberts (and possibly one or more of his colleagues) will be to reverse the ruling just to preserve the reputation of the courts. In other words, we have the interesting situation that a decision made for political reasons could well be overturned for political reasons. That's how it goes these days, sometimes. (Z)

Q1 Fundraising: Ten Storylines

The fundraising numbers for Q1 were due a few days back, and so we're getting a picture of how well candidates for various offices are doing. Here's a rundown of some of the more interesting storylines:

  1. Indictments Are Good for Business: Donald Trump's fundraising had been pretty tepid, until he got indicted. As a result, he had a robust quarter, bringing in $14.4 million for his campaign and another $4.4 million for his main PAC. That said, keep in mind that it's the true believers who are giving money now, and once they hit the limit, they're done for the cycle, even if 2024 is a different calendar year.

  2. Nikki Haley Is a Liar: The wannabe GOP nominee sent out a press release a little over a week ago in which she claimed an $11 million haul. That's quite good, especially for someone who hasn't been indicted. However, while a candidate is free to lie in their press releases, it's a crime to lie on their fundraising reports. And the truth is that Haley raised $3.3 million, while transferring another $1.8 million from her existing war chest funds. We haven't checked the numbers, but before heading out to celebrate the feast day of Apollonius the Apologist, the staff mathematician told us that adds up to $5.1 million, which is less than $11 million.

  3. Burn, Baby, Burn: Supporters of Marianne Williamson decided that, instead of throwing their cash into an open fire, they would do something less efficient, and send it to the candidate for her presidential campaign. She collected $673,000, and then tossed in $100,000 of her own money.

  4. California's Senate Race Is in Full Swing...: Rep. Barbara Lee (D-CA) declared too late to be subject to the reporting deadline, but Rep. Adam Schiff (D-CA) pulled in $6.5 million while Rep. Katie Porter (D-CA) raised $4.5 million. That's quite a lot for so early in the cycle, although it will also be a drop in the bucket compared to how much the candidates will ultimately spend. Recall, for example, that Porter spent nearly $30 million last cycle, and that was just one congressional district. Out of 52.

    California's top-two system creates an interesting incentive structure here. Virtually every Democrat in the state and in the country would prefer that two Democrats advance, so that there is zero chance of a Republican winning the general, even if both Democrats are caught in bed together, accompanied by a live boy, a dead girl, a goat, Donald Trump Jr., and a guy in blackface (Eric Trump, more likely than not). However, Schiff and Porter would almost certainly prefer that a Republican make the cut. If it's Schiff or Porter vs. [California Republican], then the Democrat can just cruise to the finish line. If two Democrats make it, then it's another 5-month slog of campaigning and fundraising.

  5. ...And So Is Arizona's: Sen. Kyrsten Sinema (I-AZ) pulled in $2.1 million, which isn't bad, though it's not great, either. Particularly concerning for her is that several big chunks of her take came from employees of the same company (Blackstone employees and Carlyle Group employees each pitched in about $200,000). Needless to say, these folks are going to reach the campaign limits quickly, if they haven't already. And since Sinema won't face a primary, she can only collect $2,900 per donor and not $5,800.

    Meanwhile, Sinema's Democratic rival, Rep. Ruben Gallego, raised $3.7 million. That's obviously better than $2.1 million, especially since Gallego was not an official candidate for the entire quarter.

  6. Key Senate Democrats Are Doing Well...: Sen. Sherrod Brown (D-OH), whose seat is a must-keep for Democrats, took in $3.5 million. Not bad, but Ohio's an expensive place to campaign, thanks to all the large media markets. Meanwhile, Sen. Jon Tester (D-MT) raised a very, very impressive $5 million. That is a heckuva lot, since Montana is a cheap place to campaign. Put it this way: Montana has 4 cities with a population greater than 50,000 people and zero with a population greater than 125,000. Ohio has 17 and 6. Or, to put it another way, there are more people in Columbus and Cleveland than there are in the entire state of Montana. Though Ohio and Montana do have the same number of Super Bowl wins.

  7. ...Except for Joe Manchin: In contrast to his endangered Democratic colleagues from Ohio and Montana, Sen. Joe Manchin (D-WV) had a pretty paltry take in Q1, with just $370,000 in receipts. That said, he's not even an official candidate yet, and he does have a $10 million war chest. In addition, West Virginia is a cheap place to campaign. And finally, Manchin's likely opponent is the richest man in the state. If this comes down to who can spend the most money, the Senator is in trouble no matter how much he raises.

  8. Gaetz, Boebert and Biggs Seem to Be Doing Well...: A lot of Republican voters don't like Speaker Kevin McCarthy (R-CA), as they think he is a RINO. McCarthy's three main nemeses, namely Reps. Matt Gaetz (R-FL), Lauren Boebert (R-CO) and Andy Biggs (R-AZ), are reaping the financial benefits of the McCarthy hatred. In Q1, they took in $675,000; $217,000 and $760,000, respectively. Much of that was from small donors, which suggests that the base is with them.

  9. ...Though So Is Boebert's Opponent: Matt Gaetz's district is R+19 and Andy Biggs' is R+11, so they don't actually need all that much money to defend their seats. Lauren Boebert's district, on the other hand, is R+7, and her win last year was by the smallest margin of any House seat. So, it's not great news for her that her $760,000 was vastly outpaced by the man she barely defeated, Adam Frisch (D). He pulled in a remarkable $1.7 million. That's going to be mostly from national donors who hate Boebert and are using ActBlue to ActOut on their feelings. So, don't read too much into it yet. That said, if Frisch enters the cycle with a lead of multiple millions, that's a big deal, particularly since it's a rural district where advertising is cheap.

  10. "Santos" Is Creating More Fodder for Jokes: We made a brief reference to this yesterday, but Rep. "George Santos" raised just $5,333 in Q1. That is absolutely terrible, even for a poor, rural district in Oklahoma. But for a district in New York City? "Santos" should be able to raise that much by standing in Times Square in his underwear and playing the guitar for 2 hours.

    But it gets worse. For various reasons, politicians have to refund donations sometimes. And in this quarter, "Santos" refunded $8,352. That means his net for the quarter was roughly negative $3,000. It's not easy for a sitting officeholder to do that poorly. That's like losing money as the owner of an Atlantic City casino. It's nearly inconceivable.

All of these numbers need to be taken with many grains of salt, since it's so early in the process, and since there are undoubtedly some candidates who are spending big bucks on fundraising in order to inflate their totals (Rep. Marjorie Taylor Greene, R-GA, for example, is famous for this). Still, it's interesting to get a tentative lay of the land. (Z)

Iowa Could Get Very, Very Interesting

As long as we are talking about the 2024 election months and months in advance, The Bulwark's Mike Murphy has an interesting item about the Iowa caucuses, in which he points out two significant problems that face Donald Trump in the Hawkeye State.

The first problem is that Trump, who has never been a great fit for Iowa (recall that Sen. Ted Cruz, R-TX, beat Trump in the caucuses in 2016), is not so popular with Iowa Republicans these days. Quite a few of them are shopping around for someone new, different, and not under indictment. So, if the 2024 caucus was a normal caucus, Trump could very well be beaten out for first place.

The second problem is that 2024 is not a normal caucus. Recall that the Democrats have killed their version of the caucus. So, those independent and Democratic voters who are used to being a deeply involved part of the political process are going to have nothing to do when caucus time rolls around next year. Well, unless they show up to participate in the Republican caucuses, that is.

Historically, the Iowa GOP has been very liberal (no pun intended) about giving anyone who shows up for their caucuses the chance to participate. As far as the Party was concerned, it was a great way to win new converts to the Republican banner. Now, for fear of non-Republicans showing up in droves, the rules for participating might be tightened (say, a person may have to register at least 70 days prior to the caucuses). But even if new rules are imposed, there is still going to be some number of independents and Democrats who jump through the necessary hoops. Maybe some large number.

If non-Republicans do participate in large numbers, they would seem to have three basic choices:

Any aspirational Republican should be spending all of their time in Iowa for the next 8 months, and zero time in the probably-lost-to-Trump New Hampshire. If someone manages to outpace Trump in the Hawkeye State, they might just become the official Trump alternative.

In any event, it should be very interesting to watch. Though we don't envy Ann Selzer, who has to figure out what to do with this rather unprecedented mess of a situation. (Z)


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