Nasty Case Begets Even Nastier Defense

Whether Roger Ailes is the pig he’s alleged to be will be known soon enough. But since he’s Roger Ailes, the now-ex-soul of the most hated conservative news channel on the tube with the best tagline, “fair and balanced,” he’s a lightning rod. Weird how controversial people, knowing that they have a target on their foreheads, do things certain to destroy them.

Two high-profile lawsuits against Roger Ailes, the former Fox News chairman, have painted a shocking picture of brazen sexual harassment at the network. In her bombshell complaint against him, the former Fox host Gretchen Carlson said that he told her, “I think you and I should have had a sexual relationship a long time ago.” Last week, another former Fox host, Andrea Tantaros, filed her own lawsuit, stating that Mr. Ailes told her to turn around so he could “get a good look” at her and that she was harassed by other employees and even show guests.

The details both women lay out portray Fox as a place where sexual harassers roam free, grabbing or ogling whatever they fancy, with consequences brought to bear only on the victims who speak up.

The image couldn’t be more unsavory, which, for a news source promoting traditional values, makes the irony delicious and the conduct reprehensible. Fox News wasn’t Bill Buckley’s flavor of conservatism, and Roger Ailes (not to mention many others who roamed the hallways), love him or hate him for his politics, gets no free pass for his conduct.

But that’s why Ailes, and Fox News, have been sued. And the suits by Carlson and Tantaros will have their day in court, where the allegations will be proven or not. In the meantime, it’s fair for anyone who cares to parse the claims to speak their minds, or their feelz, as the case may be. This is America, and people are allowed to opine, even if it’s about something they only know second hand.

That isn’t acceptable to Ailes’ lawyers.  One journalist has been on the Ailes beat beyond all others, and he’s not done yet. And that’s made him Ailes’ Enemy Number 1.

No. 1 on the 76-year-old Ailes’s enemies list appears to be New York Magazine national affairs editor Gabriel Sherman, who has spearheaded the reporting on the former cable news executive’s recent scandal that led to his abrupt resignation last month, and is the author of a much buzzed-about 2014 biography of Ailes, The Loudest Voice in the Room.

The 36-year-old Sherman, who has broken several Ailes stories in recent weeks—notably the damaging scoop that Fox News star Megyn Kelly, an Ailes protégé, had told an internal review of fired Fox anchor Gretchen Carlson’s harassment lawsuit allegations that she, too, had been an Ailes victim—is preparing a major exposé on Ailes and his behavior toward women, expected to be published in the magazine’s next issue.

While not a lawsuit against Ailes, Sherman’s stories have been the core of his indictment in the court of public opinion. It’s a problematic court, without rules of evidence and from which there is no appeal. Nobody should appreciate this more than Ailes, who has used the Fox soapbox to convict many an enemy over the years with the sort of unsworn evidence that should make him thank his Lord that there’s no one gets indicted for perjury.

Now Ailes has lawyered up, and his lawyers are trying his case in the court of public opinion.

In what seemed timed as a preemptive strike, two of Ailes’s attorneys—Susan Estrich, a law professor and a partner in the blue-chip Los Angeles law firm Quinn, Emanuel, and Mark Mukasey, a top litigator in the well-connected New York firm Greenberg, Traurig—contacted The Daily Beast in the past day to attack the journalist in slashing, nasty, and deeply personal terms.

Estrich, who was nearly the subject of a Fault Lines Cross, claims feminist credentials, which doesn’t mean she’s not entitled to take on Ailes’ defense. With her is Mark Mukasey, former assistant in the Southern District of New York, whose father sat as a judge in the same courthouse in which his son prosecuted, before becoming the Attorney General stand-in. As Ailes’ lawyers, they have a job to do. But this ain’t it.

From Mukasey:

“Gabe Sherman is a virus, and is too small to exist on his own, and has obviously attached himself to the Ailes family to try to suck the life out of them,” Mukasey, the son of former U.S. Attorney General Michael Mukasey, said in an interview Tuesday after sending an email to The Daily Beast inviting a reporter to call for his comments.

From Estrich:

“This is Gabe Sherman’s last stand, and it falls flat,” Estrich said in an emailed statement, referring to Sherman’s reporting on last week’s complaint against Ailes and four other Fox News executives by suspended Fox News personality Andrea Tantaros.

“Gabe Sherman has made clear that nothing will stand in the way of his vendetta against Roger Ailes, and he will use any woman he can find—no matter how clearly and deeply troubled she is—to try to concoct allegations against Mr. Ailes.”

Defend their client in court? Sure. Handle the crisis management in the media? Okay, maybe. But this vile attack on Sherman rather than the substantive allegations against their client is way outside the box of their lawyerly duties. This was a personal choice.

First, they play the man instead of the ball, which is the most certain giveaway that they can’t overcome the allegations, so they try to smear the journalist presenting them. It’s not just poor form, but tantamount to an admission that this “virus” nailed their client to the wall.

Worse yet, the outrageous nastiness of this attack can’t be explained by a lawyer doing her best to defend her client. This isn’t feminist Estrich doing her defense job. This is outside the scope, a personal choice by Estrich to attack a writer in the most disgusting and loathsome way possible. Estrich chose to go down this foul path on behalf of Ailes.

As for Mukasey, his calling Sherman “too small to exist on his own” is beyond ironic, given how he’s riding on his father’s coattails. Whether Ailes is as bad as the stories suggest may not yet be proven in court, but if his lawyers in any way reflect Ailes’ attitude, he is one monumental, nasty, vile piece of shit. They certainly are.

2 thoughts on “Nasty Case Begets Even Nastier Defense

  1. J Anderson

    It is possible that Ailes attorneys are foreshadowing their litigation strategy if the case ever gets to trial. An aggressive defendant runs a risk that their attacks on an alleged victim will backfire and make the victim more sympathetic to the jury. An alternate strategy might be to put on a case against Mr. Sherman – who is not a party – arguing that Mr. Sherman has a vendetta against Mr. Ailes and induced the victims to exaggerate or invent their accusations against Mr. Ailes.

    Its hard for me to imagine that the statements about Mr. Sherman would actually influence the jury pool, but maybe jurors in New York read more than the jurors I see.

    I’m guessing that Mr. Ailes is pressuring his attorneys to say something to the press, and the attorneys are overdoing their statements to the press. To my mind that seems very risky.

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