Filings in Judith Regan’s pending lawsuit have revealed the identity of the person whom she says encouraged her to lie to federal investigators about her affair with former New York police commissioner, Homeland Security nominee and subsequent convicted felon Bernard Kerick. She previously described the person as a “senior fox executive” but papers revealed that she was referring to Roger Ailes, the chairman of Fox News.
Her former employee, HarperCollins, was owned by News Corp — as is Fox News. She was fired after publishing O.J. Simpson’s controversial book, “If I Did It.”
What is interesting is that Regan allegedly taped the call from Ailes where he allegedly encourages her to lie and conceal the affair. It is unclear why federal prosecutors did not pursue criminal charges if they knew about that evidence. Scooter Libby was sent to jail on counts for obstruction and perjury. If the allegations are true, prosecutors could have charged that Ailes clearly knew that there was a federal investigation and sought to obstruct that investigation and encourage false testimony. One would think that, at a minimum, prosecutors would want to know whether Ailes and Kerik had spoken by the alleged statements to Regan. Section 1622 criminalizes procuring or inducing another to commit perjury: “Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined under this title or imprisoned for not more than five years, or both,” 18 U.S.C. 1622. The general obstruction provision states:
§ 1503. Influencing or injuring officer or juror generally
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(a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.
Regan herself could also have faced charges in the controversy. It is not clear where the tapes were made and whether taping someone without their consent is also a crime. Moreover, if Regan did not reveal that tape, she was concealing evidence of potential obstruction of justice and even suborning perjury. Finally, if this allegation is untrue, Ailes could sue her for defamation since she is alleging a criminal act — a per se category under the common law. However, the statute of limitations could be an issue since court filings are generally privileged.
The most pressing question is whether the Justice Department investigated the allegations when Regan first stated that she was encouraged to lie. If they investigated and had a tape, it is unclear why charges were not pursued. If they did not investigate, it is difficult to understand why. I have seen far weaker cases in my career pursued doggedly by the Justice Department.