Ex-prosecutor: Fox plot to appeal defamation case to Supreme Court could badly backfire

Fox lawyers are already preparing to lose the network's defamation case against Dominion Voting Systems — but think they have a chance of prevailing if they appeal the case to the Supreme Court, according to The New York Times.

Fox's legal team is already preparing for an appeal, "a sign they are under no illusion that beating Dominion's case will be easy," according to the Times' Jeremy Peters.

Fox Corp. general counsel Viet Dinh, who is expected to be called as a witness in the trial, has privately told colleagues that he believes the company's odds before the Supreme Court would be good and "certainly better" than in front of a Delaware jury, sources told Peters.

Both sides have retained experienced appellate lawyers before the trial even gets underway. 

But it's unclear whether the court would actually side with the company in the case.

"It's not clear to me why Fox News believes it will fare well in the Supreme Court if it loses at trial against Dominion," tweeted former federal prosecutor Renato Mariotti. "Conservative judges have expressed a desire to make libel cases easier, not harder, to prove."

Jeff Kosseff, a law professor at the Naval Academy, also questioned Fox's reasoning. 

For the Supreme Court to take up the case and rule in favor of Fox, it would need to expand First Amendment protections, he explained. "And I just don't see this Court doing that. Two of the most conservative justices may want to weaken those protections."

"I know the response is: this Court just wants to help Fox win. But it would need to do something like set a new standard that makes it even more difficult to show actual malice," he added.

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The judge overseeing the case delayed the start of the trial until Tuesday amid reports that he asked both sides to discuss a potential pre-trial settlement. 

Fox has argued that it was merely reporting on allegations as protected under the First Amendment but troves of internal messages released during discovery revealed that Fox executives and hosts privately trashed the same baseless conspiracy theories they aired while worrying about angering former President Donald Trump and his fans.

"If this case goes the wrong way," John Culhane, professor of law at Delaware Law School at Widener University, told the Times, "it's clear from my perspective that would be a terrible mistake because this is about as strong as a case you're going to get on defamation."

He added: "I think it would embolden them even further."