Happy Friday, and welcome back to In The Room. Tonight, on the eve of next week’s historic Dominion v. Fox trial, I offer a look at how the arguments might proceed now that Murdoch & Co. have lost the “newsworthiness” defense. The new tack, it seems, is to argue that some Foxies simply believed this shit.

Dobbs intended to keep beating the Dominion drum that night; McCarton was emailing to inform him that he would need to do so without Ed Rollins, a Fox News political analyst and veteran G.O.P. strategist, and then-chairman of the pro-Trump Great America PAC. McCarton had tried to book Rollins for the show; Rollins had responded with a defiant rejection of the voter fraud conspiracy, which McCarton forwarded to Dobbs: “Let me state what I believe,” Rollins wrote. “Biden won the election. I have seen or heard of no evidence of fraud. The conspiracy theories put forth by Rudy and Sidney are all bullshit.”

He continued: “This is all propaganda and destructive to the political process that I have spent my life participating in. I supported Trump and still support the principals [sic] of his administration. I also support valid challenges to anything that is improper or illegal. To date I repeat I have not seen anything that fits that measure.”

Rollins’ sentiments matched those that were being privately expressed by Fox News executives and other hosts around that time. Tucker Carlson declared in texts that Powell was “lying,” called her “a crazy person,” and later told Trump attorney Jenna Ellis that the “circumstantial” voter fraud claims were “shockingly reckless.” While Fox News host Jeanine Pirro embraced the voter fraud theory on her show, her own executive producer Jerry Andrews sent an email calling the remarks “completely crazy.” And of course, at the top of the organization, Fox Corp. chairman and Fox News executive chairman Rupert Murdoch described the voter fraud claims as “really crazy stuff.”

That night, Dobbs invited Powell back on to the show to discuss the White House’s call for a national security investigation into what he described as Dominion’s “potentially rigged voting machines,” whose “software is suspected of inflating vote totals for Joe Biden.” Powell told Fox viewers that she had just received “stunning evidence from a firsthand witness, a high-ranking military officer,” showing that Smartmatic software had been designed to alter votes “without being detected,” which was relevant, she claimed, because “Smartmatic owns Dominion.” (In fact, Dominion is owned by a mid-market private equity firm in New York.) Dobbs went on to call it “a deeply, deeply troubling election,” and Powell blamed federal investigators and the Justice Department of “willful blindness” in refusing to investigate the matter. “Yes, and it is more than just a willful blindness,” Dobbs replied. “This is people trying to blind us to what is going on.”

The question of “willful blindness”—not of investigators, but of Fox News executives, anchors and producers—is at the heart of the historic Dominion v. Fox case that will go to trial on Monday in Delaware Superior Court. The judge, Eric M. Davis, has already determined that the voter fraud allegations made on Fox News about Dominion were false and that the network is not entitled to defend itself on the grounds that such allegations were newsworthy. “Just because someone is newsworthy doesn’t mean you can defame someone,” the judge has said.

Crucially, Davis has also indicated that Fox as a broadcaster may be responsible for the claims made by its guests, including Giuliani and Powell. The only remaining question, and it is the one upon which the verdict of liability hinges, is whether Fox and its hosts knew they were lying, or at least whether they willfully and recklessly disregarded the truth.

Fox News’s initial line of defense had been the “newsworthiness” claim; now that Davis has thrown that out, it will have to mount a different defense. Most likely, Fox’s lawyers will argue that the hosts who made or entertained the voter fraud claims actually believed, or were at least open to the idea, that those claims were true. In other words, the defense will move from “these crazy claims were newsworthy” to “our hosts believed these crazy claims.” And while there is a mountain of evidence—emails, text messages, phone recordings, etcetera—suggesting that Fox News executives and hosts like Carlson knew the claims were not true, Fox’s lawyers will argue that there is not enough evidence to show that the hosts who pushed the Dominion conspiracy the hardest—Dobbs, Pirro and Maria Bartiromo—didn’t genuinely believe in it.

Even if Fox’s lawyers succeed in convincing the jury that Dobbs, Pirro or Bartiromo were open-minded to the legitimacy of the voter fraud claims—still a very big if—they will also need to convince the judge that these hosts and their producers bear sole responsibility for what appears on their shows, and that the skepticism of their colleagues and bosses is irrelevant. This will be a difficult case to make. In declaring that Fox is responsible for its guests’ statements, Davis said: “It’s a publication issue, not a who-said-it issue.” Presumably he will put similar responsibility on Fox as an organization for publishing falsehoods, night after night, even as Murdoch and his deputies were expressing concern over how “crazy” they were.

Since Dominion first filed its suit, in 2021, Fox has argued that Murdoch and other Fox Corp. executives should not be involved in this case because they did not directly run Fox News. But this week, Fox revealed that, in addition to his role atop the parentco, Murdoch was executive chairman of Fox News itself—an eleventh-hour disclosure that led Davis to sanction Fox’s lawyers for lying by omission, and which may force Fox to disclose more of Murdoch’s correspondence. (In a statement, Fox said Murdoch had been listed as executive chairman of Fox News in S.E.C. filings since 2019, and suggested Dominion was aware of that because it referenced those filings during Murdoch’s deposition.)

Murdoch’s role as a corporate officer at Fox News may simplify the question of whether Fox as a broadcaster willfully and recklessly disregarded the truth when Dobbs, Pirro and Bartiromo pushed the voter fraud conspiracy. On November 19, as Giuliani gave his infamous hair-dye-stained press conference casting doubt on the election, Murdoch told a friend that his claims were “stupid and damaging.” Giuliani, he said, was “the only one encouraging Trump and misleading him. Both increasingly mad.”

Giuliani was not the only one encouraging Trump, of course. That night, after the press conference, Dobbs had Powell back on his show to provide what he described as “more details on how Dominion voting machines and Smartmatic software were used to help Joe Biden.” Ten days later, during yet another interview with Powell, Dobbs would declare that Trump needed to take “drastic action” to investigate the “crimes that have been committed against him and the American people.”

When asked by Dominion lawyers during deposition whether he could have done more to stop his network from peddling Powell and Giuliani’s election lies, Murdoch memorably said: “I could have. But I didn’t.” The Dominion v. Fox case may very well come down to a question of whether, as the leader of Fox Corp. and the executive chairman of Fox News, he should have.