Right-wing outlets facing 2020 election defamation lawsuits may have found a key defense overseas

By Marshall Cohen, CNN

(CNN) — An alleged bribery scheme in the Philippines has thrown a potential lifeline to Fox News and other right-wing media outlets that are battling massive defamation lawsuits from the voting technology company Smartmatic for their promotion of 2020 election lies.

The overseas scandal washed ashore last year when the Justice Department charged the Philippines’ former election commissioner with money laundering. Since then, Fox News, Newsmax and OAN have seized on the allegations, attempting to obtain new documents about potential wrongdoing by Smartmatic that could boost their defense.

New court filings reviewed by CNN reveal that the fringe pro-Trump network OAN has secured permission from a federal judge to request documents from the Philippines government and nine other countries where Smartmatic does business. Meanwhile, Newsmax is pursuing materials from the Justice Department about the bribery allegations.

The outlets have also seized on a recent decision by the Philippines’ nationwide election commission to disqualify Smartmatic from participating in future elections, because of the scandalous allegations in the US criminal case. The company has denied wrongdoing in the country and is appealing the decision to disqualify it from future elections.

Smartmatic is seeking billions of dollars in damages after the right-wing networks repeatedly gave airtime to the bogus claim that Smartmatic machines rigged the 2020 election against Donald Trump. (The networks deny wrongdoing.)

The criminal case against the former Philippine election official, Andres Bautista, revolves around alleged bribes paid by Smartmatic to secure lucrative voting-machine contracts. Smartmatic and Bautista deny any illegal behavior. None of the allegations levied by US prosecutors in court filings pertain to vote-flipping or alleged rigging of election results.

Fox seizes on the scandal

Smartmatic was only used in one California county during the 2020 election, but that didn’t stop Fox, OAN and Newsmax from giving significant airtime to the false claim that the company had rigged the nationwide results. Many of these lies referenced Smartmatic’s ties to Venezuela, where it was involved in elections for 15 years before cutting ties with the government in 2018 after the Nicolas Maduro-led regime lied about the results of a vote.

While fighting these defamation lawsuits, Fox News and the other outlets have argued that Smartmatic’s reputation was already diminished due to these foreign scandals and alleged overseas improprieties — and not because of their lies about the 2020 election.

If Fox takes the case to trial and loses, these arguments could significantly reduce the eventual damages payout by undercutting Smartmatic’s calculations about its losses, which it has said amounted to $2.7 billion. Last year, Fox paid a historic $787 million settlement with another election technology company, Dominion Voting Systems, for its promotion of similar election lies.

Lawyers representing Fox flagged the Philippines scandal in court filings Wednesday, specifically mentioning the charges against Bautista and the disqualification decision in Manila.

Smartmatic “has been mired in controversy for the better part of two decades and has not turned a profit since 2016,” Fox’s lawyers wrote, highlighting “Smartmatic’s long history of election-related controversy” in the Philippines, Venezuela and elsewhere.

Fox also attempted to shift the blame to Trump for peddling lies about Smartmatic.

“Smartmatic insists that these phantom losses are all attributable not to the nationwide (indeed, global) coverage of the President’s allegations against it, but to a handful of segments on Fox News,” they wrote. “That claim does not pass the straight-face test.”

OAN seeks foreign documents

OAN and Newsmax, far-right cable outlets with much smaller audiences than Fox, are also trying to capitalize on the allegations as a key defense against the lawsuits, which could pose an existential threat to their business.

Newsmax is seeking documents about the Bautista probe from the Justice Department and the US attorney in Miami. They want “plea agreements, cooperation agreements… and grand jury subpoenas concerning Smartmatic or its executives/employees,” according to a letter sent last week by lawyers representing the network to the judge overseeing their case in Delaware.

These additional discovery requests are already having an impact on the Newsmax case. Delaware Superior Court Judge Eric Davis delayed the trial on Friday, wiping away a scheduled June start date and suggesting it might be ready for September.

“Newsmax reported on allegations made by President Trump and his aides and in doing so made it clear that it did not support a stolen election theory or claims that Smartmatic rigged their software,” Newsmax spokesman Bill Daddi said. “However, we are concerned that the DOJ has alleged Smartmatic made $4 million in bribes to Philippine officials and believe the matter needs further investigation.”

Meanwhile, OAN was recently given authorization from a federal judge to request documents from the Philippines, Venezuela, Brazil, the United Kingdom, the Netherlands, Belgium, Kenya, Oman, Switzerland and Taiwan, according to court filings made public Thursday.

“Smartmatic’s conduct abroad – and its negative impact on Smartmatic’s reputation prior to any broadcast by OAN – is directly relevant to this suit,” OAN’s lawyers wrote in September, when they initiated their bid to obtain the materials from foreign countries.

The voting technology company has pushed back on allegations of wrongdoing in the Philippines, saying it was not given an opportunity to defend itself from bribery claims.

“We are very confident that had (the commission) informed us of the matter, allowed us to explain our side and present countervailing evidence, the unfair disqualification would not have been meted out,” Smartmatic said in a statement, calling the decision “not only legally and morally wrong, but plain unfair” because wrongdoing hasn’t been proven yet.

The company said the commission “is expected to abide by the constitutional of a ‘presumption of innocence.’ It is foundational to any legal system, here in the Philippines or anywhere in the world, that investigations or indictments do not automatically amount to guilt.”

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