Two weeks after Joe Biden was declared the winner of the 2020 presidential race, Fox News host Jeanine Pirro was preparing an opening commentary for her Saturday-evening show that her own producer found so alarming, he decided to warn his bosses about it.
“It’s rife with conspiracy theories and BS and is yet another example why this woman should never be on live television,” he wrote. Yet Andrews thought he could stop the falsehoods from hitting the airwaves:
“The brain room,” he wrote, “is going through this now.”
The extent to which Fox News heeded the wisdom of its “brain room” — an in-house fact-checking and research division — has become a central question in the $1.6 billion defamation case filed against the cable-news giant by the voting-technology company Dominion Voting Systems.
In depositions under oath, Fox executives and journalists repeatedly affirmed the important role the fact-checkers play at the network in preparing news segments for broadcast. Yet internal emails uncovered in the case show that Pirro and other hosts largely ignored brain-room reports that tried to warn them away from the outlandish claims of election fraud floated by allies of Donald Trump.
In rejecting Fox’s motion to dismiss the case Friday, Delaware Superior Court Judge Eric M. Davis referred repeatedly to the work of the brain room. The challenge for Dominion, as with all plaintiffs attempting to prove defamation cases, will be demonstrating that the defendants knew or had reason to believe their statements were false. But in a ruling that legal experts saw as a major blow for Fox’s case, Davis noted that the network had ample reason to doubt the veracity of the election-fraud claims being made by Trump’s surrogates.
“The Brainroom addressed many of the allegations and determined the allegations to be untrue,” Davis wrote.
In a statement, a Fox spokesperson dismissed the documents presented in the case as “Dominion’s continued reliance on cherry-picked quotes without context to generate headlines in order to distract from the facts of this case.”
The network has defended its reporting of election-fraud claims as normal newsgathering activities protected by the First Amendment, though the judge wrote in his decision that Fox did not conduct “good-faith, disinterested reporting.”
Fox executives and journalists spoke proudly in their testimony of the brain room and its work. David Clark, the executive who oversaw Pirro’s show, described it as “a professional research wing of Fox News that we had used regularly to fact-check.” Another executive said it could help “separate fact from fiction” regarding the Dominion claims.
But it was a fairly small operation, compared with the overall size of Fox News, and it was hit by a round of companywide cutbacks just weeks before the 2020 election, the Daily Beast reported in September of that year. While a company employee surmised to the publication that the brain room was targeted because its conclusions “were in contradiction to what Fox aired,” a network source who spoke on the condition of anonymity to discuss internal decisions said it was purely motivated by the economic circumstances of the pandemic.
The cuts appeared to increase the workload on the unit’s remaining staffers. “I didn’t realize you were just as slammed as me,” Abby Grossberg, then a producer for host Maria Bartiromo, wrote in a September 2020 email to a brain-room researcher, apologizing for “hounding” the staff after not getting an immediate response on a query. “Sometimes, I also just want to make sure I have the correct info and am tallying it right, since I’m the last line before [the show goes to] air.”
Dominion lawyers have pointed to Nov. 13, 2020, as a key date in the case. That was when the brain room first produced a report denying some of the claims being made about the company on Fox. Eighteen of the 20 examples of alleged defamation cited in Dominion’s legal filings occurred after that date.
“That’s when the brain room concluded … that the charges were all bunk,” Dominion attorney Justin Nelson said in a recent court hearing.
The Nov. 13 fact-check was prompted by an earlier episode of Pirro’s show that Andrews had said was “riddled with inaccuracies,” according to Nelson.
After researching Pirro’s claim that Dominion had somehow deleted 2.7 million votes for Trump, a brain-room researcher reported back to a Pirro producer that “there’s no evidence of widespread fraud in the 2020 election, or of major problems with Dominion’s systems.”
The following day, Nov. 14, another brain-room researcher took on a claim that “all of a sudden, the counting stopped” on election night after Trump appeared to be ahead in several key states. The researcher labeled the allegation “INCORRECT”; Andrews forwarded the researcher’s email to Pirro and noted there were “a lot of problems.”
After Andrews sent the brain room the opening comments that Pirro planned for her Nov. 21 show, a researcher strongly contradicted her claim — which she had picked up from Trump’s lawyers — that Dominion was founded in Venezuela with Cuban funding.
“It was founded in Toronto in 2002,” the researcher wrote.
And another researcher debunked Pirro’s assertion that the vote count had been plagued by mysterious spikes and discrepancies.
“These spikes can be easily accounted for in the timing of the release of large batches of results for big cities like Milwaukee and Detroit, which are always skewed heavily democratic,” the researcher explained. The spikes, he said, “are not evidence of fraud.”
Pirro, though, was unmoved, according to Andrews.
“She’s refusing to drastically change the open despite the fact check,” the producer wrote to Clark in an email exchange that was made public last week. “She says just because the case was dismissed does not legally mean that the affidavit can’t be true. I guess that is valid but seems pretty desperate to me.”
“Understood,” Clarke wrote back.
The brain room also cast doubt on the work of Bartiromo that same day, according to the judge’s ruling. Davis described a redacted communication sent to a Fox Business Network executive warning that Bartiromo’s reporting on election fraud allegations was unreliable and based on sources Fox “would never use as a primary” source.
Fox News has contested the relevance of the brain room’s work for the case — to the point of diminishing the significance of its researchers’ work.
In one early filing, Fox lawyers said the Nov. 13 fact-check “simply pointed to Dominion’s own self-serving denials and to fact checks by other news organizations,” and therefore is “insufficient for the same reasons that those documents are insufficient.”
Lawyers for Fox also argued that hosts “often conducted their own research, including by reaching out to confidential sources to which the Brain Room did not have access.” In a deposition, Pirro suggested that she put more stock in the signed affidavits she had received from alleged whistleblowers than in her newsroom’s research unit. The “brain room didn’t have time, clearly, to do all of the work that needed to be done,” she said.
And Pirro ultimately made her own decision about what to say on the evening of Nov. 21, when she went on air with some of the claims that had been debunked by the brain room — including the Trump lawyers’ false allegation that Dominion was founded in Venezuela.
Pirro did omit a line she had originally planned, about Dominion software being used to undermine “the free will of the people,” and as she spoke, an on-screen chyron highlighted the voting company’s response. (“Dominion statement: Ballots were accurately tabulated and results are 100% auditable.”)
But she plunged ahead with claims of “an overnight popping of vote tabulation that cannot be explained.”
The brain room had denied that any such thing had happened. In a defense filing, lawyers for Fox News said that Pirro “merely posed a question many had been asking.”