Jesse Watters could be Fox News’ next legal disaster: ex-federal prosecutor

Gov. Gavin Newsom (D-CA) has the "facts on his side," a former federal prosecutor said about his lawsuit against Fox News.

Speaking to MSNBC's Nicolle Wallace on Friday, legal analyst Harry Litman addressed Newsom's recent lawsuit regarding an episode of Jesse Waters' show that addressed a debate over when Newsom spoke with President Donald Trump about sending the National Guard to Los Angeles.

Litman called it a "fairly picayune" suit, but said that doesn't change the facts.

"Remember, there was this lurking legal issue that came up in the cases, did Trump go through the governor?" Litman said about the laws for deploying the National Guard to a state.

The legal requirements to deploy the guard mandate "a situation where there is a rebellion,” Scott R. Anderson, a Brookings Institution fellow in governance studies, told Politifact. Trump didn't cite the Insurrection Act when he sent in the guard, which is required for him to deploy the military without the consent of the state.

"So, first Newsom says, on [June 6], when they talked, he [Newsom] tried to talk about LA and Trump wouldn't. And it really is a non-sequitur for Trump to say on the 10th, 'We talked a day ago.' It's false. But that could have given the false indication that he had complied with the statute. So, Newsom has the facts on his side."

In the clip with Jesse Watters, the host calls Newsom "an outright liar," Litman recalled.

Newsom "would have to show that Fox knew that it was false when they made [the claim] to win defamation," Litman continued. "And to me, this really mainly is an effort to push back on Fox. It's very, I think, important that he starts with the Dominion [Voting Systems] suit. That's how the complaint starts. He's trying to say we're coming after you and putting pressure on as well."

Newsom has agreed that he will withdraw the lawsuit if Fox News runs another story correcting the first one and spending equal time on the show as the first attack. He also wants a public apology.

"What would he have to prove that Jesse Watters had malice toward him, Gavin Newsom. That he, Watters, knew it was false and he went ahead anyway, or he was reckless about it. So it is true, by the time Waters says it, that what he's saying is false. There was no call within a day," he said.

Litman also noted that Watters' show edited the commentary after the fact, "which has been the basis for defamation liability in the past."

“Gov. Newsom’s transparent publicity stunt is frivolous and designed to chill free speech critical of him,” a Fox News spokesperson said in a statement, according to CNN. “We will defend this case vigorously and look forward to it being dismissed.”

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