Unlikely witness steps up to complicate Fox News’s defamation defense

Documents revealed in Dominion Voting Systems’ lawsuit against Fox News suggest that Fox News producer Abby Grossberg was invested in the idea that the 2020 election was stolen. In its defense, Fox has even cited Grossberg’s testimony as evidence that it wasn’t as reckless as Dominion claims.

But in a striking turn for the increasingly embattled cable news network, Grossberg is criticizing Fox’s “coverage of the lies against Dominion” and saying her testimony was coerced.

In a federal lawsuit in New York, Grossberg claims Fox discriminated against her on the basis of her gender and that the network is home to rampant misogyny.

But more relevant for Fox’s current predicament is what Grossberg says about Dominion’s lawsuit in both the New York filing and a defamation lawsuit brought in Delaware.

“Quite simply, Fox’s legal team coerced, intimidated, and misinformed Ms. Grossberg as they ‘prepared’ her in connection with deposition testimony she gave in the pending defamation case brought by the company known as Dominion … ,” Grossberg’s attorneys say in the New York case.

Grossberg’s attorneys add in the Delaware case that the Fox lawyers “intentionally coerced and intimidated Ms. Grossberg into providing testimony that placed her reputation in a false light” and “did so intentionally to deflect blame and liability in the Dominion/Fox Lawsuit away from Fox News and male on-air hosts and executives.”

The network has, in turn, filed for a restraining order to prevent her from revealing information it says is legally privileged. It said in a statement: “Fox News Media engaged an independent outside counsel to immediately investigate the concerns raised by Ms. Grossberg, which were made following a critical performance review. Her allegations in connection with the Dominion case are baseless and we will vigorously defend Fox against all of her claims.” Grossberg was placed on leave Monday, according to her lawyer.

Grossberg’s attorneys say the alleged coercion resulted in Grossberg’s delivering misleading testimony. While Grossberg testified that she hadn’t witnessed Fox host Tucker Carlson use misogynistic language, according to her complaint, “In truth, Ms. Grossberg knew full well that Mr. Carlson was very capable of using such disgusting language about women.” Grossberg was also asked whether it was important to correct false statements made by a guest, and she responded “no.” Grossberg’s attorneys say it was “not the testimony Ms. Grossberg wanted to give.”

Perhaps most pertinent to the defamation suit, though, is a key episode about which Fox has featured Grossberg’s testimony in its defense.

It deals with a bizarre email dated Nov. 7, 2020, that Trump-aligned lawyer Sidney Powell forwarded to Grossberg’s then-boss, Fox host Maria Bartiromo. Bartiromo shared the email with Grossberg.

In it, a woman lodges baseless claims about Dominion and the 2020 election alongside other conspiracy theories, including that Antonin Scalia, the late Supreme Court justice, was murdered in a human hunting expedition. She also says, “The Wind tells me I’m a ghost,” which the woman acknowledges sounds “pretty wackadoodle.”

The next day, Nov. 8, Bartiromo interviewed Powell and closely echoed the language of the email. The email had falsely alleged that “Nancy Pelosi’s longtime Chief of Staff is a key executive [at Dominion], and that Richard Blum, Senator Feinstein’s husband, is … a significant shareholder of that company.” On air, Bartiromo cited “reports” that “Nancy Pelosi’s longtime chief of staff is a key executive at that company; Richard Blum, Senator Feinstein’s husband, significant shareholder of the company.”

Dominion has stated that it can’t find any publicly available report making such claims that existed before Bartiromo’s show.

Despite the similarities in the phrasing, Fox has pointed to Grossberg’s saying in her testimony, “We never used” the email, and, “This isn’t something that I would use right now as reportable for air.”

While citing Grossberg’s testimony, Fox has contended publicly that the “wackadoodle” email “has been misrepresented as being a ‘key source’ of Fox News’s reporting on the Dominion allegations” and that her deposition demonstrates it “was not relied upon as evidence by Bartiromo or her team.”

Fox told The Washington Post that Bartiromo’s questions were based on a conversation with Powell and not on the email. (That still wouldn’t clear up where Bartiromo’s claimed “reports” came from.)

The episode is key because it gets at the crucial legal issue of whether Fox acted with “actual malice” — that is, whether it was at least reckless when it came to the veracity of the claims about Dominion that aired on Bartiromo’s show and others. To use such an email as a source would surely bolster Dominion’s case.

What’s also notable about Grossberg’s lawsuits — which don’t specifically mention the “wackadoodle” email episode — is how they lay the blame on Fox for airing such claims.

In addition to citing the “mostly male higher ups at Fox News who endorsed the repeated coverage of the lies against Dominion,” Grossberg’s attorneys cite executives “who approved baseless statements against Dominion to air repeatedly on Fox News to perpetuate the lie that President Trump had the election fraudulently stolen from him.”

The language is particularly striking given the previously released exhibits suggesting that Grossberg bought into claims of widespread voter fraud.

In texts with Bartiromo, she extensively shared thinly sourced allegations. When the two exchanged clips in which former Trump national security adviser Michael Flynn claimed that there was “no doubt” that Trump won in a “landslide,” Grossberg added of Flynn: “He’s brilliant.”

Grossberg also said Democrats were “going to cheat again on Jan 5th” — referring to the Senate runoffs in Georgia held two months after Election Day.

And Grossberg complained that then-Sen. Kelly Loeffler (R-Ga.) wasn’t as outspoken as she should have been on this supposed cheating. Grossberg cited the idea that Georgia Gov. Brian Kemp (R) and Secretary of State Brad Raffensperger (R), who played down claims of voter fraud, were “compromised.” At another point, she responded to a story Bartiromo shared about Kemp by saying, “Sidney is right. He’s totally getting kickbacks. … The sec of state too.”

An attorney for Grossberg has not responded to a request for comment about her contemporaneous texts.

Today, Grossberg is lodging a different theory: She alleges that she and Bartiromo were set up to take the fall for Fox’s legally problematic decision to air such claims.

“Ms. Grossberg’s deposition testimony, as manufactured by Fox News, put Ms. Grossberg and Ms. Bartiromo squarely on the frontline of the Dominion/Fox Lawsuit,” her Delaware lawsuit says, “so they could be scapegoated as sacrificial female lambs.”

And Grossberg suggested in comments to CNN that she is a motivated witness, saying she’ll “expose the lies and deceit” that she “witnessed for years” while working on Bartiromo’s and Carlson’s shows.