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Seth Rich: Separating fact and speculation

Mary Rich, the mother of slain DNC staffer Seth Rich, at a news conference in August. The family is demanding that Fox News retract stories. (Washington Post/Michael Robinson Chavez) Mary Rich, the mother of slain DNC staffer Seth Rich, at a news conference in August. The family is demanding that Fox News retract stories. (Washington Post/Michael Robinson Chavez)

Mary Rich, the mother of slain DNC staffer Seth Rich, at a news conference in August. The family is demanding that Fox News retract stories. (Washington Post/Michael Robinson Chavez)

Jon Greenberg
By Jon Greenberg August 7, 2017

People who work in politics and suffer violent death are not often left in peace by conspiracy theorists. These aides and staffers don’t simply die, the theories go -- they die for a reason.

The story of the 2016 shooting death of Democratic party worker Seth Rich has followed that pattern, with one important difference. A recent lawsuit alleges that Fox News and the Trump administration fueled an unsubstantiated narrative that Rich was the source of hacked Democratic National Committee emails that showed up on WikiLeaks.

The suit’s message is that both Fox News and the White House used the Rich story in an effort to neutralize the findings of the U.S. intelligence community that Russia was behind the stolen emails.

If true, this would raise serious questions about the role of the media and the government in spreading fake news.

But what do we really know at this point, and how much insight does the lawsuit really offer?  We set out to separate the facts from the speculation.

The murder

Near dawn on July 10, 2016, the 27-year-old Rich was found with two fatal gunshot wounds near his home in Washington, D.C.

Rich was had been working on voter access projects for the DNC. The police believed he was the victim of a botched robbery. Bruises on Rich’s hands and face showed signs of a struggle, and his wallet, watch and cell phone were still on him when the police arrived.

Rich had been on a call with his girlfriend when the episode began. Police monitors picked up sounds of gunshots, and officers responded. The murder remains under investigation.

Those are the only certain facts in the story of the murder.

Rich’s death might have drawn no special attention if it weren’t for the release by WikiLeaks of hacked emails from the DNC about two weeks later on July 22, 2016. On Aug. 9, WikiLeaks head Julian Assange inserted Rich’s murder into stories about the DNC leaked emails, saying in a Dutch television interview that "others have suggested that (Rich was murdered)." Assange said he would not disclose if Rich was WikiLeaks’ source but described the risks people who leak information to WikiLeaks face.

A few days earlier, Assange had told CNN that WikiLeaks likes "to create maximum ambiguity as to who our sources are." Still, Assange’s words stoked stories that Rich was the source of the DNC emails and had been targeted by Democratic loyalists in retaliation. There is no proof of this claim.

Fox News draws a lawsuit

Fast forward to May 16, 2017. Fox News reported that the FBI had proof that Rich had sent WikiLeaks "thousands of internal emails."

Fox cited an anonymous federal investigator who said the FBI had the emails between Rich and WikiLeaks. It also quoted Rod Wheeler, a private investigator who was looking into Rich’s death on behalf of Rich’s parents , as saying, "My investigation up to this point shows there was some degree of email exchange between Seth Rich and Wikileaks."

The Fox News report quoted Wheeler once more, "My investigation shows someone within the D.C. government, Democratic National Committee or Clinton team is blocking the murder investigation from going forward. That is unfortunate. Seth Rich’s murder is unsolved as a result of that."

Wheeler disputed the way he was quoted after the report aired, and two months later, on Aug. 1, 2017, Wheeler sued Fox News and others for inventing those quotes.

"Mr. Wheeler – who was the only named source quoted in the article – did not make these statements," his lawyer wrote in the filing.

Several versions of the Rich story, all based on the work of Fox News reporter Malia Zimmerman, appeared late in the evening on May 15 and throughout the day on May 16. The first, which showed up on the local Washington, D.C. Fox affiliate Fox 5, has Wheeler suggesting that there is evidence that tied Rich to WikiLeaks. By mid-morning on May 16, the national Fox News site posted a version with Wheeler speaking more definitively about Rich, WikiLeaks and efforts by Democrats to squash the police investigation.

Other news outlets started reporting that police were sticking by their finding of a botched robbery. NBC News, citing unnamed current and former law enforcement officials, reported that the D.C. police had examined Rich’s laptop and found it "never contained any e-mails related to WikiLeaks and the FBI never had it."

Fact No. 1: Retraction

As we sort out facts from allegations, it’s important to note that on May 17, two days after the initial broadcast, the local Fox affiliate pulled its story. Fox News itself waited a week before releasing a statement saying, "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."

The recent lawsuit pressed Fox News to admit that it invented the quotes from Wheeler.

Bennett Gershman, a Pace University law professor and former prosecutor, said when it comes to what’s true and what isn’t, Fox News’ retraction is significant.

"The fact that Fox News withdrew the story is pretty good circumstantial evidence that either it found the story inaccurate or that it could not vouch for its accuracy."

But Fox News’ retraction doesn’t specify what part of the story went astray.

A White House connection

Wheeler’s lawsuit added a significant twist to the story. It claimed that Ed Butowsky, a Trump supporter, paid him to investigate Rich’s death and brought Wheeler to a meeting with former White House spokesman Sean Spicer.

"Butowsky and Mr. Wheeler did in fact meet with Mr. Spicer on April 20, 2017, to keep him informed about the Seth Rich murder investigation," the filing said. "Mr. Spicer was provided with a copy of Mr. Wheeler’s investigative narrative and asked Butowsky and Mr. Wheeler to keep him abreast of any developments in the case."

Fact No. 2: Spicer meeting confirmed

NPR was the first news organization to get a copy of the lawsuit, and it followed up with Spicer.

"Spicer now tells NPR that he took the meeting as a favor to Butowsky," the NPR report said. "Spicer says he was unaware of any contact involving the president."

The timing of the meeting among Spicer, Butowski and Wheeler is significant. It came about three weeks before the Fox News broadcast in May. Then, right after the Fox News report hit, Spicer was asked for a reaction. Spicer dodged the question.

"I generally don’t get updates on former DNC staffers," Spicer said May 16. "I’m not aware of that."

Spicer said it would be inappropriate to comment on what he believed was an open investigation.

Alleged Trump involvement

The lawsuit goes on to cite texts, emails and recordings with Butowsky saying that President Donald Trump had seen a draft of the Fox News report and was eager to see it published.

"Not to add any more pressure, but the president just read the article," said a text on May 14 from Butowsky to Wheeler. "He wants the article out immediately. It’s all up to you. But don’t feel the pressure."

Did Trump actually know about the article? Butowsky told NPR he was "kidding."

We asked Gershman and Rory Little, a criminal law professor at UC Hastings College of the Law, if Butowsky’s texts and emails proved any actual connection to Trump. They both said they did not. Butowsky might have exaggerated the role of the White House in order to push Wheeler forward.

Much more direct evidence would be required, they said.

Gershman said an investigator would need "calls, emails, meetings, or any other evidence establishing that Butowsky in fact had contact with any White House operative, whether those contacts involved the Seth Rich story, and whether there was a plan or even a suggestion to disseminate false news accounts about the case."

Missteps by Fox News

The lawsuit argues not only that Fox News was slow to retract its story, but also alleges that when Wheeler complained that the report included statements he never made, he was told that "bosses at Fox News (wanted) to keep the false quotes in the story."

According to the suit, Butowsky instructed Wheeler to "highlight (that) this puts the Russian hacking story to rest." The suit argues that the entire purpose of bringing on Wheeler had been to lift the cloud of Russian interference that was hanging over the Trump White House.

Does Fox News’ retraction prove that it was complicit in that plan? The media law experts we reached said the retraction doesn’t prove that.

"We don’t know the underlying facts," said Clay Calvert at the University of Florida. "His allegations might be completely false."

Calvert cautioned that "many will speculate that Fox News works hand-in-glove with the Trump administration in an unofficial capacity." But that is unproven.

Charles Glasser, a media lawyer who over the years has represented Fox News and Bloomberg and now teaches at the NYU Graduate School of Journalism, faulted Fox News for leaving itself open to that sort of theory.

"To merely retract the story without an explanation, it’s not unreasonable that your readers will say there’s something more going on here," Glasser said.

In the past, news organizations published what Glasser called an autopsy of what went wrong. Fox News has not done that.

Glasser said the retraction shows the failure of editorial oversight.

"The core question is, how did this get published?" Glasser said.

We don’t know what happened at Fox News, but the most common reason, Glasser said, is an editor and a reporter were "writing to a headline."

"There is a preconceived idea about X and you cherry-pick facts or ignore facts to make the case," Glasser said. "That’s not what we as journalists are supposed to do."

Fox News issued a statement from president of news Jay Wallace, who said, "The accusation that published Malia Zimmerman’s story to help detract from coverage of the Russia collusion issue is completely erroneous. The retraction of this story is still being investigated internally, and we have no evidence that Rod Wheeler was misquoted by Zimmerman."

We might never learn the truth

Every legal expert we reached warned that it’s possible that the public might never learn what happened. Civil suits are often settled with no admission of guilt and with robust nondisclosure agreements.

Well before that, Fox News might win a motion to dismiss the case. However, if it fails, then the suit moves into the discovery phase where Wheeler can compel Fox News to share documents and emails.

Glasser said at that point, Fox News might have something to worry about.

"In discovery, it’s ‘Katie bar the door,’ because those documents get leaked all the time," Glasser said.

It would be in keeping with the trajectory of conspiracy theories that the unsubstantiated story of Seth Rich and WikiLeaks has spun off another storyline to follow, with its own presumed trail of skullduggery.

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Our Sources

Civil complaint, Wheeler v. Fox News, et al.,  Aug. 1, 2017

Fox News, Seth Rich, slain DNC staffer, had contact with WikiLeaks, say multiple sources, May 16, 2017

NPR, Behind Fox News' Baseless Seth Rich Story: The Untold Tale, Aug. 1, 2017

Breitbart, Julian Assange Claims Russia Wasn’t Involved in DNC Hack, Aug. 5, 2016

Breitbart, WikiLeaks Offer $20,000 Reward for Information on Murdered DNC Staffer, Aug. 9, 2016

CNN, Julian Assange: 'A lot more material' coming on US elections, July 26, 2016

PolitiFact, The baseless claim that slain DNC staffer Seth Rich gave emails to WikiLeaks, May 21, 2017

Washington Post, "A conspiratorial tale of murder, with Fox News at the center," May 17, 2017

Washington Post, "The Seth Rich conspiracy shows how fake news still works," May 20, 2017

Washington Post, "Gingrich spreads conspiracy theory about slain DNC staffer," May 21, 2017

Snopes, "Did DNC Staffer Seth Rich Send 'Thousands of E-Mails' to WikiLeaks Before He Was Murdered?" May 22, 2017

PolitiFact, Conspiracy theory that Comey hid Seth Rich’s ties to WikiLeaks based on retracted story, May 26, 2017

Los Angeles Times, How Seth Rich’s death became an Internet conspiracy theory, May 24, 2017

Interview, Charles Glasser, adjunct professor of Media Law and Ethics, NYU Graduate School of Journalism, Aug. 7, 2017

Interview, Clay Calvert, professor of mass communications, University of Florida, Aug. 7, 2017

Email interview, Bennett Gershman, professor of law, Pace University School of Law, Aug. 4, 2017

Email interview, Rory Little, professor of law, UC Hastings College of the Law, Aug. 4, 2017

Email interview, David Anderson, professor of law, University of Texas School of Law, Aug. 4, 2017

Email interview, Thomas Healy, professor of law, Seton Hall School of Law, Aug. 7, 2017

Email interview, Carly Shanahan, spokeswoman, Fox News, Aug. 7, 2017


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