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Opinion ‘Intense distress’: Lawsuit from Seth Rich’s parents details trauma from Fox News hatchet job

Mary Rich and her husband, Joel Rich, hold a photo of their son in their home in Omaha last year. (Matt Miller for The Washington Post)

A lawsuit filed on Tuesday by Joel and Mary Rich uses the word “sham” about 50 times to describe a Fox News story about their son, Seth Rich. That’s a fair description: Fox News ended up retracting that May 2017 article by Malia Zimmerman, which fingered Rich, a Democratic National Committee staffer who was murdered in summer 2016, for involvement in the release of emails by Democratic Party honchos to WikiLeaks.

The implications were astounding. If some low-level, 27-year-old DNC employee had been responsible for leaking those critical emails, then Russia wasn’t the responsible party, as U.S. intelligence agencies had concluded. Nor could the Trump campaign have been complicit, either.

Perhaps that explains the frothing interest of Fox News’s Sean Hannity in the story.

It was all hokum. “They published, republished, and publicized the sham story—which they knew would be covered again and again, and republished, here and around the world—painting Joel and Mary’s son as a criminal and a traitor to the United States,” reads the lawsuit, filed by Eli J. Kay-Oliphant, of the law firm Massey & Gail in a New York federal court. The suit seeks damages to be determined at trial for intentional infliction of emotional distress, among other counts.

“We can’t comment on this pending litigation,” said a Fox News spokesperson.

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Just how the fraudulent story on Seth Rich came to surface on the Fox News website is among the most baroque and shameful episodes in modern media history. The tortuous sequence is laid out in detail in the Seth family’s suit and merits considerable recap, if only to appreciate the depravity at work.

Last August, NPR’s David Folkenflik published an extensive profile of a man who is central to this story, and also a defendant in the Rich family’s suit. Ed Butowsky is a former Morgan Stanley executive with a knack for positioning himself in close proximity to big shots in the worlds of politics and sports. As for Butowsky’s political orientation, here’s Folkenflik: He “also has been a vocal supporter of President Trump, on Fox, on conservative talk radio and in Breitbart News, among other outlets, largely for Trump’s stance on regulations and finance. As former White House press secretary Sean Spicer told NPR in late July, Butowsky has been a reliable public voice on economic matters for Republicans, or a ‘surrogate,’ for the past seven years.”

Now let the Rich family suit take over. According to the complaint, Butowsky came into the lives of Joel and Mary Rich in December 2016, months after a conspiracy theory had taken root regarding Seth Rich’s murder. That theory played on the mysterious circumstances surrounding his shooting death on July 10, 2016, at 4:19 a.m. Police couldn’t solve the case and believed it was a robbery attempt gone awry, but people somehow concluded that “mysterious forces allied with Hillary Clinton killed Rich as payback for leaking DNC emails to Wikileaks,” as Will Sommer wrote in the Washington City Paper.

Just how did Butowsky approach the Riches? “On December 17, 2016, Butowsky sought to use Joel and Mary’s Jewish heritage and community ties to gain a favorable introduction to them and posted on Facebook that he was ‘looking to connect with anyone Jewish in Omaha Nebraska.’ Through these overtures, Butowsky successfully contacted the Riches,” notes the complaint. In a phone chat, Butowsky said that he’d heard “second-hand” that “Julian Assange said WikiLeaks received the DNC emails from Seth,” according to the lawsuit. No way, said Joel and Mary Rich. Around the same time, Fox News’s Zimmerman contacted the family as part of her efforts to report on the case.

In a phone interview with the Erik Wemple Blog, Butowsky says the complaint has it all wrong. Joel Rich, he contends, “confirmed” the allegation about Seth Rich’s leaking the emails to WikiLeaks. “We know what our boys did,” said Joel Rich, in Butowsky’s version of the conversation. When the Erik Wemple Blog, in an incredulous moment, pushed Butowsky on this point, he re-confirmed his account: “They can choose to be honest or they can choose not to be honest, but I’m not going to change what I’m telling you,” says Butowsky.

In early 2017, Butowsky allegedly sought help for this “scheme,” according to the complaint. He recruited Rod Wheeler, a former D.C. cop who’d become a private investigator and commented on criminal stuff on Fox News. Part of a text message from Butowsky to Wheeler reads as follows, “Behind the scenes I do a lot of work, (unpaid) helping to uncover certain stories, my biggest work was revealing most of what we know today about Benghazi. I’m looking for some assistance on something that happened in Washington I would appreciate if you would give me a call at 972.XXX.XXXX,” it reads.

With the alleged goal of assisting the Riches to “get closure, as a family,” on the murder case of their son, Butowsky offered to pay for Wheeler to represent the family. Whereas the complaint alleges that Butowsky “urged” the Riches to let him finance the arrangement, Butowsky told this blog, “I said, ‘I’ll pay for it,’ never expecting a yes answer, and these people said, ‘Thank you,’ and now I’m stuck with having to pay a bill.” The complaint drives at a different dynamic, namely that Butowsky, Zimmerman and Wheeler schemed to push a “sham” story onto the national stage. There was a meeting with then-White House press secretary Sean Spicer, there were messages about the police investigation into Seth Rich’s killing, there was an alleged phone call from Butowsky and Zimmerman to Wheeler “to falsely inform him that they had developed an FBI source supposedly confirming that emails were sent between Seth and WikiLeaks.” (Bolding in original, for a change).

To judge from the complaint, a frenzy overtook the process in the days leading up to the May 16 publication of the story. Wheeler was at the center of much activity. Zimmerman allegedly told Wheeler that her “bosses at Fox want her to go” with the story; Butowsky also told Wheeler to “close this deal, whatever you got to do.” There was also this sequence, from the complaint:

Fox’s Zimmerman reached out to Joel to request Joel and Mary’s comment, including on the “fact” that Zimmerman had “been in communication with a federal agent who reviewed an FBI report completed last July that showed Seth had been in communication with [Wikileaks] and that [Seth] had in fact transferred emails from the DNC to Wikileaks.”
…Zimmerman’s statements to Joel were lies.

The complaint also states that Wheeler had discussed the pending article with Joel Rich. “Joel told Wheeler the news story was fictitious,” reads the complaint. Butowsky tells a different story to the Erik Wemple Blog: “Not only did he like it but he wanted to add some lady from a crime show to it,” says Butowsky about Joel Rich’s reaction. The complaint addresses these allegations: “Butowsky continues to harass Joel and Mary with text messages, emails, and voicemails, and by making public statements that the fictitious allegations of the Zimmerman/Fox Article are true and falsely stating that Joel confirmed that Seth gave the DNC emails to WikiLeaks,” it reads.

The Rich family’s litigation overlaps to a significant degree with an August 2017 lawsuit filed by Wheeler against Fox News, its parent company, Butowsky and Zimmerman. That suit alleges that Zimmerman, with a boost from Butowsky, fabricated two quotations from Wheeler, specifically:

“‘My investigation up to this point shows there was some degree of email exchange between Seth Rich and Wikileaks,’ said Wheeler.”
“‘My investigation shows someone within the DC government, Democratic National Committee or Clinton team is blocking the murder investigation from going forward,’ Wheeler said. ‘That is unfortunate. Seth Rich’s murder is unsolved as a result of that.’”

Butowsky dismisses all culpability: “You’ve got a grieving family who I reached out to help, and not only help but did help emotionally and financially, and they’re claiming that a story that I did not end up writing, by the way, and didn’t participate in writing and didn’t have anything to do with emotionally distressed them,” he says.

The Rich family complaint, however, cites a message that Butowsky sent to Fox News personnel — Steve Doocy, [Fox & Friends executive producer] Gavin Hadden, Ainsley Earhardt and Brian Kilmeade — before the story surfaced:

If you have any questions about the story or more information needed, call me at 972-[XXX-XXXX]. I’m actually the one who’s been putting this together but as you know I keep my name out of things because I have no credibility. One of the big conclusions we need to draw from this is that the Russians did not hack our computer systems and ste[a]l emails and there was no collusion like trump with the Russians (emphasis added).

Note about the emphasis: It was added by the Rich family complaint, not by the Erik Wemple Blog.

In a move that added a layer of complexity to the disaster, Wheeler allegedly alerted Marina Marraco, a reporter at the Fox5 affiliate in D.C., that Fox News was moving on a Seth Rich piece. Marraco thereupon joined in the chase, ultimately producing a story of her own. As Washingtonian pointed out, that piece collapsed quickly in part because of Wheeler’s wobbliness. “Absolutely. Yeah. That’s confirmed,” said Wheeler to Fox5 about the alleged Seth Rich-WikiLeaks connection, while he disavowed direct knowledge elsewhere. In its response to Wheeler’s claims of being misquoted, Fox News itself cited his contradictory remarks.

Restraint, integrity, standards were nowhere to be found in the May 16 Fox News story, which carried the headline, “Slain DNC Staffer Had Contact with WikiLeaks Say Multiple Sources.” It collapsed much more quickly than it came together, though the network waited until May 23 to retract it: “The article was not initially subjected to the high degree of editorial scrutiny we require for all our reporting. Upon appropriate review, the article was found not to meet those standards and has since been removed.”

Presumably those “standards” frowned on how Zimmerman allegedly managed Wheeler’s participation in the story. A stunning detail on this front is alleged in the Rich suit, which says that on the day before the Fox News piece was published: “Fox’s Zimmerman wrote to Wheeler by text asking if he was with Butowsky. Zimmerman wrote that Butowsky was ‘supposed to get more info on Seth rich [sic] today’ because ‘[i]f he [Butowsky] does we need to figure out what you [Wheeler] can say on the record’ (emphasis added).” That’s called orchestrating the quotes of a source. Zimmerman’s archive page at hasn’t been updated since last August. A Fox News spokesperson indicates that she “remains employed.”

The Seth Rich fiasco adds texture to the official Fox News orthodoxy that it proceeds along two paths: A news operation that moves up the middle of the country’s divide, and an opinion section that does otherwise. In this case, a Fox News “investigative reporter” pushed out an easily debunked hatchet job. The role of the network’s opinion side was to amplify the “scoop,” with Hannity playing a leadership role. He blew through warning sign after warning sign on his way to hyping the story, verily willing it into the national conversation.

Toward the end of complaints such as the Rich family’s, lawyers generally spell out libel and slander counts. Not in this case: The person whom Fox News and Fox5 and Hannity were libeling is Seth Rich, and he is dead. So there’s no case for libel, though there’s a compelling one for towering cowardice. Fox News despoiled the reputation of a guy who wasn’t around to defend himself. It fell to his parents to defend his name. “Joel and Mary were beginning to show some improvement in coping with their loss,” reads the complaint. “But the Zimmerman/Fox Article, together with the Defendants’ dealings with Joel and Mary leading up to it, constituted an overwhelming assault causing Joel and Mary intense distress.”

Read the complaint here.