Why Roger Ailes' lawyers' attack on New York magazine is dangerous for both sides
Lloyd Grove should have no remaining illusions about Roger Ailes being a gutter fighter as he observes the noxious spectacle of Team Ailes going after another reporter.
The Daily Beast editor at large, who's been a journalist since 1976, including 23 years at The Washington Post, is no stranger to sources dumping on others. But he's still taken aback by the orchestrated vitriol directed his way about Gabriel Sherman, a New York magazine reporter who's chronicled Ailes, including his dramatic exit from Fox News amid allegations of sexual harassment of female subordinates.
Susan Estrich, a Los Angeles lawyer-pundit perhaps best known for managing the disastrous 1988 presidential campaign of Democratic nominee Michael Dukakis, emailed him with scant subtlety:
"This is Gabe Sherman's last stand, and it falls flat. 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."
Then came another Ailes attorney, Marc Mukasey of New York, who called and made Estrich sound as mild-mannered, cautious and downright passive as, say, Michael Dukakis, who lost by 315 electoral votes to George H. W. Bush in the Estrich-supervised debacle.
"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 said in a phone call to Grove.
"I was surprised and little mystified when I saw Susan's email about Sherman on Monday night. It struck me as a pure ad hominem attack on a prominent journalist, and I couldn't imagine how it could help her client, Roger Ailes," Grove said Wednesday about his story. "It also didn't strike me as the kind of thing that Susan, a more than competent lawyer who is also press-savvy, would do on her own."
"If I was surprised by Susan's emailed statement, I have to admit to having been shocked by Marc Mukasey's over-the-top, dehumanizing demonization of Sherman in his comments to me over the phone — a conversation he invited in an email to me suggesting that I call him."
He added, "Once again, it struck me that Mukasey was channeling Ailes, or perhaps channeling Rudy Giuliani, Mukasey's mentor at Greenberg, Traurig," referring to the law firm where he's a litigator. "Again, this was not the sort of thing I associate with careful, meticulous lawyering."
But they are exactly the tactics one has come to expect in our Age of Hogan, which is the proper context in which to view the premeditated animus on Ailes' behalf. Have no doubt that the courtroom victory of Hulk Hogan, which marked the financial ruin of Gawker Media, is part of the calculus in essentially warning Sherman and his employer that Team Ailes means business.
The unbridled nationwide suspicion of the press — much of it irrational and reflecting ignorance of its role in a democracy — is deep. There's no shortage of folks champing at the bit to get a media defendant into court, especially if it screwed up — as Gawker did with the disclosure of the Hogan sex video or as Rolling Stone did in a different manner by publishing the fabrications of a supposed University of Virginia rape victim.
So you should see the comments of Estrich and Mukasey as combination finger wagging, pre-emptive strike in advance of another possible Sherman expose on Ailes' treatment of women, and the early draft of potential opening arguments in a court case. They're trying to tell the story of alleged victimization by a bad reporter with an Ailes obsession.
Sherman's reputation is very good, and his many chronicles about Ailes, former longtime boss Rupert Murdoch and the News Corp. and Fox organizations have stood up to scrutiny. Those include a book on Ailes, which did not send the former Fox mogul to the nearest county clerk's office to file a suit.
And, whatever the facts may have been in certain situations, Ailes' careers in politics and journalism have been a testament to brilliance in creating story lines. Now Team Ailes has one in place: sleazy reporter, untrustworthy sources claiming sexual harassment and a vendetta against a famous media executive by the "liberal" press upended by the right-leaning Fox News goliath.
And one should not put it past Ailes to get Sherman to bite at some untruth. Reporters are fed suspect sagas with some regularity. At its most diabolical, it can mean that a party concocts a tale and perhaps even puts up a purported source to communicate a deceit.
The details could seem rich. There might be some seemingly corroborating evidence. The tale gets printed and, bingo, the source recants and the magazine is in Rolling Stone-like hot water.
Of course, Sherman has proven very solid and, for sure, anything he writes on Ailes will presumably be handled with meticulous fact-checking care. That does happen, even in our internet universe where speed often trumps precision.
But mistakes get made in closely-monitored efforts, and a very good trial lawyer can make even a very good journalist look very bad: Make him or her squirm. Make lemonade out of lemons and persuade a jury that, like many these days, isn't predisposed to believe the media and thus may see ulterior motives behind even the smallest miscue. Having been hauled before a grand jury once in a totally bogus matter, I can attest to the possibility of unjustified legal peril arising.
Even if past and future Sherman reporting on Ailes is rock solid and diligently bulletproofed by editors and vigilant lawyers, there's no prohibition on Team Ailes filing a libel suit. It may not be aimed at destroying the magazine, as was clearly the case with the Peter Thiel-supported Hogan litigation against Gawker. But it could still provide a vehicle for Team Ailes and chums tracking down the "turncoats" who brought him down in the pages of New York, which remains one of the best regional publications.
Find the right legal jurisdiction, perhaps one with a weak press shield law or an erratic history when it comes to dismissing libel suits (not New York), and you could be in business.
Of course, initiating the comprehensive pre-trial discovery process would also expose the plaintiff to questioning. It's presumably a risk that lawyers for Murdoch mulled as they designed the severance deal that meant the exit of the long-impregnable Ailes — a man who doesn't seem quite the untouchable force of nature he was while flourishing inside the Murdoch bubble.