Fox's Jeanine Pirro is back in the hot seat in $1.6 billion election defamation case

Dominion Voting Systems is putting Fox News star "Judge Jeanine" Pirro back on the legal hot seat in its clash with the network in a $1.6 billion defamation suit over baseless claims of fraud in the 2020 elections, NPR has learned.

In documents filed Thursday in a Delaware courthouse, the voting tech company explicitly identified Pirro, a former Westchester County district attorney and New York state judge, as central to its case. Its filings argue that by questioning Pirro, Dominion can meet the key legal threshold of proving Fox showed "actual malice" when it broadcast false claims the firm sought to throw the race to Joe Biden over then-President Donald Trump.

The case is at a pre-trial phase of the litigation, where both sides are able to obtain testimony and documentary evidence from key figures in a process called "discovery."

"Discovery has revealed that...Fox News host Jeanine Pirro help[ed] spread the verifiably false yet devastating lies against Dominion," the company's lawyers wrote in the legal documents.

Earlier this month, NPR revealed that a Fox producer had warned colleagues in an email against putting Pirro on the air in the days after the election, saying she was pulling conspiracy theories from extremist conspiracy-minded websites to justify Trump's lies. That was just one example of the vast cache of documents and testimony that Dominion has acquired.

Trump campaign attorney Sidney Powell made false allegations on Pirro's show

Now, Dominion is pointing to a November 14, 2020 segment in which Pirro invited on Trump's campaign attorney, Sidney Powell, to make unsubstantiated claims that were disputed at the time and swiftly discredited.

"She not only allowed Ms. Powell to air such nonsense, not only amplified it on her Justice with Judge Jeanine program," Dominion's attorneys wrote, "[but] Ms. Pirro's conduct and role in the spread of this disinformation lies at the heart of Dominion's claims."

Pirro is not named as a defendant in Dominion's suit against Fox and its parent company, Fox Corp. Powell and others are being sued by Dominion separately.

Powell alleged, among other claims, that computer codes were overwritten to manipulate Dominion software and that statistical and mathematical evidence showed votes were flipped from Trump to Biden. Those claims and others she made were false. Pirro did read Dominion's denials on the air.

Five days after the segment, the Dominion motion notes, Powell appeared at the Republican National Committee headquarters with Trump campaign attorneys Rudy Giuliani and Jenna Ellis, where they held a press conference at which they made nearly identical allegations.

In the filings, Dominion's attorneys write they had been asking for all relevant communications from Fox for months but that the network produced several directly relevant texts from Pirro just 13 hours before her deposition in late August. The attorneys said that meant they are only now able to question Pirro directly about the exchanges and are formally asking the presiding judge, Eric M. Davis of the Delaware Superior Court, to compel Pirro to sit for an additional deposition, under oath.

Fox has argued the false claims were inherently newsworthy

Fox News declined comment, as did its lead outside trial attorney, Dan Webb, through a network spokeswoman. In an earlier interview with NPR, Webb said that Fox News was merely covering inherently newsworthy claims by inherently newsworthy people - meaning a sitting president and his campaign lawyers and advisers contesting a presidential election. That newsworthiness, he argued, exists regardless of the accuracy or fairness of the claims.

Fox's fortunes looked shaky after the November 2020 elections because its research team made Fox the first network to project that Biden would win the key swing state of Arizona. That call enraged Trump, his campaign, and his followers.

Dominion's attorneys have argued that Fox knowingly or recklessly allowed its stars to make sweeping and false claims that the firm committed election fraud to regain the loyalty of its core audiences because it had started to bleed viewers to smaller right-wing competitors, particularly Newsmax and OAN, after the Arizona call.

Dominion seeks employment contracts of Fox News executive and stars

Court filings reviewed by NPR also show that Dominion is seeking to force Fox News to turn over the full employment contracts of 13 top network executives, including Fox News Media CEO Suzanne Scott and Jay Wallace, Fox's president and executive editor. Others named include Bill Sammon, a top Washington editor, who retired under duress after the election projection of Arizona for Biden; Irena Briganti, the network's top publicity executive, and other senior producers and news executives.

(Dominion's motion was filed publicly, then removed and re-filed with all names redacted; NPR reviewed the first version of the motion before it was pulled from public view. The contracts would be sealed from public view.)

In response, Fox's attorneys wrote that "none [of the executives] have made any allegedly defamatory comments, appeared on any allegedly defamatory programs, or produced any allegedly defamatory shows."

"[Fox] maintains that this order is contrary to law, prejudicial to [Fox] and not proportional to the needs of this case," Fox attorneys wrote.

Dominion is presumably looking to examine how the executives' compensation and bonuses are constructed, given those sharp ratings drops in late 2020. Dominion still has pending defamation suits against both smaller networks, Giuliani, Powell, and pillow entrepreneur Mike Lindell, an avid pro-Trump propagator of unfounded conspiracies about the election.

The judge has set a deadline in mid-October for all discovery and depositions to conclude, with a few exceptions that could drag into November.

Trump and Pirro have a tight bond. When she was briefly banished from the air in 2019 over anti-Muslim remarks, the then-president publicly called for her return. In 2020, she attended his bellicose Election Night address refusing to accept the results.

Her weekend show did not air on Nov. 7, 2020, just after the elections, but the program resurfaced a week later, with the segment featuring Powell, and she repeatedly advanced Trump's cause in the weeks and months that followed. In January, Pirro was elevated to become a full host of The Five, Fox's popular weekday evening political chat show.

She was not alone at Fox in promoting such claims of election fraud.

A star-studded roster of current and former Fox News hosts have been deposed in the case, including Maria Bartiromo, Tucker Carlson and Sean Hannity. The network announced former Fox Business host Lou Dobbs was leaving Fox the day after another election technology company, Smartmatic, announced its own $2.1 billion defamation suit over similarly spurious claims. (That suit is pending.) Dobbs sat for a deposition as well.

In addition to those of the Fox News executives, Dominion has petitioned to receive the employment contracts for Bartiromo, Carlson, Dobbs, Hannity and Pirro.

Pirro was originally a named defendant in the Smartmatic defamation suit. She was dismissed from that suit. But she remains at the heart of the Dominion drama, which has a trial date of next April.

Maddy Lauria contributed to this report.

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