In this Oct. 30, 2018 file photo, Rupert Murdoch introduces Secretary of State Mike Pompeo during the Herman Kahn Award Gala in New York. (AP Photo/Mary Altaffer, File)
Rupert Murdoch sharing confidential information about Joe Biden’s campaign ads with Jared Kushner probably won’t spark a campaign finance prosecution, experts tell Law&Crime.
Murdoch’s disclosure of Biden’s private ad information and his debate strategy with former President Donald Trump’s son-in-law was one of the revelations in Dominion Voting Systems’ legal brief in their $1.6 billion lawsuit.
“During Trump’s campaign, Rupert provided Trump’s son-in-law and senior advisor, Jared Kushner, with Fox confidential information about Biden’s ads, along with debate strategy,” the brief stated. “But, on election night, Rupert would not help with the Arizona call. As Rupert described it: ‘My friend Jared Kushner called me saying, ‘This is terrible,’ and I could hear Trump’s voice in the background shouting.’ […] But Rupert refused to budge: ‘And I said, ‘Well, the numbers are the numbers.””
“Hyper-legalistic”
That passage may help Dominion make its case that Fox and its highest-ranking executives knew that Trump’s voter fraud claims were false but pushed election lies to preserve their relationship with the former president.
As a result, experts say, it might even exacerbate Fox’s potential civil exposure in that lawsuit.
Some campaign finance experts suggested the allegations could spell criminal exposure for Murdoch. Campaign Legal Center director Saurav Ghosh, a former enforcement attorney at the Federal Elections Commission, told independent journalist Judd Legum that the ads could amount to an “illegal campaign contribution.”
Law professor Rick Hasen told Legum that Murdoch couldn’t claim a media exception under the law because he didn’t share the ads for news gathering.
This legal analysis went viral on Twitter, ratcheting speculation that Murdoch’s mounting legal woes might not all be civil.
Three former federal prosecutors, who count decades of combined experience, found that proposition highly unlikely.
CNN legal analyst Jennifer Rodgers, who spent more than 13 years inside the Southern District of New York, conceded that it might even be true that the allegations may describe a campaign finance violation — but only in the “hyper-legalistic” sense.
“I think there is a hyper-legalistic case to be made that it’s potentially criminal, but in reality, I can’t imagine anyone would ever charge or even pursue it,” said CNN legal analyst Jennifer Rodgers, a longtime former federal prosecutor in the Southern District of New York. “The corporate donation angle is suspect, and the value is uncertain and, in any case, would be low.”
Two other former federal prosecutors, Mitchell Epner and Renato Mariotti agreed.
Epner noted that campaign finance prosecutions are rare.
“Most of them are for straw donors or things that are just very clear violations of ‘You gave X amount of money, which is higher than the amount that you were allowed to give,’” Epner, who now specializes in media law and is a partner at Rottenberg Lipman Rich PC, told Law&Crime in a phone interview.
“When you start talking about in-kind [donations], those are rarely prosecuted,” he added.
Ex-federal prosecutor Renato Mariotti offered the same analysis that a campaign finance violation may be unlikely to wind up on a criminal docket.
“We don’t live in a world where every potential violation of the law is easily proven and prosecuted,” Mariotti told Law&Crime.
Fox, for its part, has insisted that Dominion is simply playing to the press.
“Dominion’s lawsuit has always been more about what will generate headlines than what can withstand legal and factual scrutiny, as illustrated by them now being forced to slash their fanciful damages demand by more than half a billion dollars after their own expert debunked its implausible claims,” the network said.
Under Dominion’s “extreme” and “unsupported” view of defamation law, Fox says, journalists would be prevented from “basic reporting.” The network described the litigation as an effort to “publicly smear FOX for covering and commenting on allegations by a sitting President of the United States.”
The Michael Cohen precedent
One notable exception to that general trend was the case of Trump’s former lawyer and fixer, Michael Cohen, who pleaded guilty to campaign finance violations.
In his plea deal, Cohen admitted to paying off two women, pornographic film actress Stormy Daniels and ex-Playboy model Karen McDougal, to silence their claims that they had affairs with then-candidate Trump. The National Enquirer’s parent company American Media, Inc. (AMI), later admitted to a so-called “catch-and-kill” payment to McDougal to keep her story from going public before the 2016 election.
AMI later signed a non-prosecution agreement.
Experts do not see that precedent as a harbinger of Murdoch’s downfall.
“I know that some people have been pointing to the fact that Michael Cohen was technically prosecuted on that, but that was as part of an agreed-upon plea package,” Epner noted. “And there were a lot of people who questioned whether or not the U.S. attorney’s office would have been so brave as to have brought that charge on if Cohen was going to fight it. And for Cohen, since it didn’t add to the sentence, he was happy enough to give a plea that also put Trump into hot water.”
One of the reasons why in-kind contribution cases are so rare and difficult is proving the “thing of value.”
“You have to be able to quantify how much they’re worth, and there is not a ready market out there to quantify how much getting early access to a Biden commercial is worth — including whether or not, in addition to getting it from Murdoch, they had other ways that they could be getting this,” Epner said. “So that does not seem to me to be a likely avenue for prosecution.”
Mariotti also added that this facet of the case would hand Fox a ready-made defense.
“Fox’s argument would probably be that the information was already publicly known and/or had no value,” he said.
For Rodgers, the value of the Biden ads also distinguishes the hypothetical Murdoch case from the AMI one.
“It’s not comparable to the AMI case cited, where AMI basically stood in the place of the campaign to pay the 150,000,” Rodgers said. “So that’s obvious as both a benefit to the campaign and a concrete, high value for what was provided.”
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