On Monday morning, at approximately 7:25 a.m., I made my way down Market Street in Wilmington, Delaware, to wait in line for a legal showdown I wasn’t even sure was going to happen. The night before, Judge Eric Davis of the Superior Court of Delaware had announced a sudden 24-hour postponement in the Dominion versus Fox News trial that I and a legion of other journalists had come to town to attend. Rumors circulated that the two parties were trying to negotiate a last-minute settlement, a prospect which I found troubling, largely because I suspected that my hotel room wasn’t refundable.
I hadn’t slept very well, in part because I had spent much of the previous night sitting at the bar of a much nicer hotel than my own. The Hotel du Pont is the fanciest establishment in Wilmington, and it seemed like the sort of place where I might encounter some Fox personalities and executives, or at least one of the network’s many lawyers, and perhaps overhear them drunkenly divulging something that could be considered a scoop. While getting liquored up and blabbing secrets at the hotel bar does not sound like the sort of thing that a good lawyer would do, here was a defamation case that was all about lawyers doing things that good lawyers wouldn’t do—namely, spreading dumb and false vote-theft conspiracies over and over again on national television.
The fact that Fox News had so freely passed along these conspiracy theories sits at the heart of the libel case that Dominion has brought against the network. It also sits at the heart of why the case objectively matters. Fox News is America’s most popular cable news network, its most influential conservative news outlet, and an incredibly important force in right-wing politics. Even though fewer people than ever watch cable news these days, the network’s power cannot be wholly captured by its absolute ratings numbers. Fox News sets the agenda for the American right—and in the immediate aftermath of Donald Trump’s defeat in 2020, it did so by taking outrageous, inaccurate theories and allegations and giving them the sheen of actual news.
The Dominion trial represents an unprecedented opportunity to impose a measure of public accountability on a network that has skirted it for so long. The monetary damages that Dominion might win—the voting-machine company has asked for $1.6 billion—are just one form of accountability. Perhaps even scarier for Fox News is the prospect of its executives and marquee personalities being made to answer hard questions under oath. Those answers might reveal much that Fox would prefer to keep hidden about the way the network actually works, and the malign role it plays in our fractured polity. As such, it was easy to understand why Fox News might have wanted to make a last-minute stab at settling the case. From both a personal and professional standpoint, though, I very much hoped that the trial would go on.
The judge had promised an announcement at 9 a.m., and I, for one, was determined to be in his courtroom to hear it. When I arrived at the Leonard L. Williams Justice Center around 7:40 a.m., there were already about two dozen reporters lined up outside. By the time we were let into the building at 8 a.m., another couple-dozen had lined up behind me. The sheer number of queued-up reporters offered a startling visual for those people who had come to court that day for non-Fox reasons. “Jeezus Christ,” one man softly murmured as he tried to navigate past the media line on his way to a different courtroom.
At 8:30 a.m. we all filed into courtroom 7E, which is very big. On the “business” side of the courtroom, there’s a judge’s bench with six seats behind it; three rows of two tables with three chairs each and a box of tissues on each chair; and a jury box with 24 seats, just in case the court wants to do “dueling juries” or something. The first row on each side of the gallery is reserved for excess attorneys in the case, and there’s a big sign on each of those rows announcing that those seats are saved for lawyers. The sign did not stop author Michael Wolff from parking himself there just before the morning’s session began. (Wolff was not made to move, although a court official did ask him to remove his baseball cap.)
Across the aisle from me sat the courtroom artist, who had brought a pair of binoculars and a big old sketch pad, and was the only person in the gallery whom I noticed wearing a mask. She began sketching in earnest a few minutes after 9 a.m., when Judge Davis entered the room. Almost immediately it became clear that the session would be neither long nor fruitful. “This is not a press conference. I don’t do that. What I’m telling you is that I made the decision to delay the start of the trial till tomorrow,” Davis said. He noted that Tuesday morning’s session would begin with jury selection, and attempted to downplay any concerns about the one-day delay. “It’s a six-week trial, things happen,” said the judge. “This is not unusual. I have not gone through a trial [that’s scheduled to last for] more than two weeks that has not had a [one-]day delay at some point.”
Then the room was filled with a wave of audio static as Davis called two lawyers over for a sidebar. That was it, more or less, and everyone rushed out to inform their editors and audiences of the precise ways in which absolutely nothing had happened. And for a few hours after the morning’s session had concluded, it seemed like nothing happened here was the way in which this particular legal saga would end. Instead of the unusual and valuable spectacle of a massive and important defamation trial putting elusive newsmakers on the record and eliciting valuable and possibly very embarrassing testimony, the case would resolve in a very predictable way: Fox News would pay for the problem to go away.
By late afternoon, though, such an outcome began to seem less and less likely, as outlets began moving stories in which unnamed sources said that Fox and Dominion were not close to a settlement. Outside on the plaza in front of the Justice Center, television reporters did standups. In the long, narrow media room on the ground floor of the building, reporters filed stories and speculated on what might happen next in the case.
“I’m still hoping they settle,” one reporter said.
“Oh, I’m hoping they don’t,” said another.
“Well, I’m going on vacation at the end of the week,” the first reporter said, somewhat sheepishly.
“We were promised a defamation trial, goddammit!” called out a third reporter from the far end of the room. “Give us a fuckin’ defamation trial!” As of 9 p.m. Monday night, it looks like we’ll get one.
