It's not a secret that Fox News is a political operation seeking to bolster the prospects of Republicans. Jeanne Pirro, co-host of Fox News' The Five, regularly appears at Republican fundraisers. Mark Levin, who hosts a weekly Fox News program, appeared at a rally and fundraiser for a Republican candidate in Virginia. Sean Hannity, one of Fox News' primetime stars, stumped for President Trump. Alternatively, just watch Fox News for a few minutes — the purpose is clear.
At the same time, Fox News has been able to convince a lot of people — not just Republicans — that it is simultaneously a legitimate news operation. That is why, in September 2020, Biden and the Democratic Party agreed to have Fox News moderate a presidential debate. It's also why, during a critical stretch of the 2020 campaign, 22% of Biden's cable TV ads ran on Fox News — which is roughly equal to the number of Biden ads that aired on CNN and twice the number that aired on MSNBC.
But an explosive legal filing has exposed the truth about Fox News.
On Monday night, Dominion Voting Systems filed a document as part of its $1.6 billion defamation lawsuit against Fox News. The core of the lawsuit alleges that Fox News knowingly promoted lies about Dominion Voting Systems to bolster Trump's false claims of voter fraud and pander to its audience. But, in an aside, lawyers for Dominion dropped this bombshell:
During Trump's campaign, [News Corp CEO] Rupert [Murdoch] provided Trump's son-in-law and senior Advisor, Jared Kushner, with Fox confidential information about Biden's ads, along with debate strategy. Ex.600, R. Murdoch 210:6-9; 213:17-20; Ex.603 (providing Kushner a preview of Biden's ads before they were public).
While this, at the moment, is an allegation and not a fact, Dominion signaled in its citation that it has significant evidence to back it up. Dominion says the allegation is substantiated by two passages of Murdoch's deposition, which has not been released in full, and another exhibit — likely an email or text message.
The behavior described in the Dominion filing is deeply corrupt. Fox News was entrusted with Biden's campaign ads in advance because the Biden campaign trusted it to operate as a legitimate news corporation. Murdoch abused that trust in an effort to give the Trump campaign an edge in the 2020 election.
Jim Gerstein, a principal at GBAO Strategies who has been involved in creating and responding to political ads for decades, said the information that Murdoch provided to Kushner was potentially "very valuable." Presidential campaigns spend tens of millions of dollars developing and placing TV ads, which remain an effective way to move voters.
At a minimum, Gerstein said, Murdoch's "preview" would afford the Trump campaign time to prepare a press release or social media posts "that preempts the argument being made in the ad." With enough advanced warning, the Trump campaign could "prepare their own ad and air it in the same market" and "counter the argument before the message of the Biden ad sinks in with voters."
In addition to being unethical, Murdoch's alleged conduct was also potentially illegal.
Murdoch's legal issues
Saurav Ghosh, a campaign finance law expert with the Campaign Legal Center, told Popular Information that "a corporation or its agents would be breaking the law if they were to give anything of value – including intangible things like information – to a campaign or its agents in connection with an election." Ghosh stressed that a lot of facts remain unknown but "if a corporate agent passed nonpublic information to a campaign agent, that would likely be considered an illegal in-kind contribution, warranting an investigation and possible enforcement to uphold the law and protect our elections."
There is, however, a broad media exception to the prohibition of corporate contributions. A TV reporter interviewing a candidate during the evening news is valuable, but it is not illegal because it is part of a normal press function. Rick Hasen, a law professor at UCLA and an expert in election law, says that the press exemption would not apply to Murdoch because the "ads were not shared for the purpose of newsgathering or opinion writing." As a result, Hasen says, Murdoch's conduct was "potentially illegal."
Brendan Fischer, another campaign finance expert, agreed. Fischer told Popular Information that "if Rupert Murdoch shared a Biden campaign ad with the Trump campaign before it ran, then Murdoch, or Fox, very likely would have made an illegal corporate contribution to the Trump campaign." Fischer said that "sharing an unpublished campaign ad with an opposing campaign is not a media organization acting within their legitimate press function."
In June 2021, the FEC fined American Media Inc. (AMI), the parent company of the National Enquirer, $187,000 for making an illegal in-kind contribution to the Trump campaign. The fine was the result of the AMI paying $150,000 for the exclusive rights to the story of former Playboy model Karen McDougal, who claimed she had an affair with Trump. AMI admitted the purpose of the expenditure was not to publish the story. It bought the story to bury it — a tactic known as "catch and kill" — and protect the Trump campaign from negative publicity. Therefore, the media exception did not apply.
AMI and its officers also faced potential criminal liability but signed a non-prosecution agreement in exchange for their cooperation with a broader criminal inquiry. That investigation ultimately led to a guilty plea by Michael Cohen, Trump's former attorney, for his role in the scheme. Cohen was sentenced to three years in federal prison for campaign finance violations and other crimes. This year, the Manhattan district attorney empaneled a grand jury to hear evidence about Trump's role in the scheme. Among the witnesses already called is "David Pecker, the former publisher of The National Enquirer."