Was Roger Ailes' alleged 'black ops' unit legal?

Report: Ailes avenged personal vendettas on Fox's dime
Report: Ailes avenged personal vendettas on Fox's dime


    Report: Ailes avenged personal vendettas on Fox's dime


Report: Ailes avenged personal vendettas on Fox's dime 03:25

Story highlights

  • Paul Callan: If allegations of efforts by Roger Ailes to smear journalistic and political opponents are true, it is a disgrace
  • Fox News felt like it was led by an all-powerful individual who would not hesitate to destroy perceived enemies, he says

Paul Callan is a CNN legal analyst and a former media law professor. He is a former New York homicide prosecutor and criminal defense attorney who serves as "of counsel" to Edelman & Edelman, PC and is senior trial counsel at CallanLegal, where he focuses on civil rights and wrongful conviction litigation. Follow him on Twitter: @paulcallan The opinions expressed in this commentary are his.

(CNN)Employees of the Fox News Network are unlikely to be surprised by reports from Gabriel Sherman that Roger Ailes ran a "Black Room" division to spy on his enemies. After all, Ailes got his start in politics as an adviser to disgraced former President Richard Nixon, an expert in the field.

But even non-employees such as myself could sense something almost Orwellian about the organization.
    Through the years, I have provided on-air legal commentary on all the major news networks, including Fox. But Fox always had a dark and foreboding feel, far different from that at the other networks. It felt like a one-man operation led by an all-powerful leader who would do anything for his friends, but who would not hesitate to destroy perceived personal or ideological enemies.
    Ailes had already figured out what the American public needed -- and Fox employees had better be marching in the direction of his laser vision of the future.
    Paul Callan
    Of course, not everyone at the network felt that way, and the view of Ailes was decidedly mixed. Those lucky enough to have earned the moniker, "FOR" ("Friend of Roger") respected him. And those perceived as low in talent but high in airtime were often assumed to be members of the exclusive and secretive "FOR' club.
    FORs, whether talented or not, were considered untouchable and protected in the face of personal scandal or occasional dips in the ratings. And in truth there were very few dips in the ratings, as Ailes bulldozed his way to the top of the cable news industry by championing conservative causes in an entertaining news format often featuring beautiful women.
    But the whole place had a Big Brother feel to it. People were paranoid about telephone calls and their emails. Many closet liberals struggled to parrot the conservative line, and there was a palpable fear among left-leaning staffers that they were disposable employees at Fox.
    Sure, the network had such openly liberal characters as Alan Colmes, who I often debated on the "Hannity & Colmes" show, but they were specialized "talent" no doubt selected so that the network could assert that it was "Fair and Balanced." The troops putting the news together in the trenches, in contrast, marched in lockstep with the Ailes' conservative worldview regardless of personal ideology.
    And in fairness to Ailes, a sizable proportion of the cable television audience agreed with his worldview as well. They were ecstatic to finally find a champion fighting for them in the elitist halls of big media. This enormous, underserved audience helped Fox ratings soar and generated billions in profits for its owner News Corp. and the Murdoch family.
    But now, as investigative journalists sift through the pieces of Ailes' shattered reputation, the whole thing is beginning to look like a remake of "Citizen Kane." The latest nugget is the claim of a "black ops" operation, staffed by private detectives counseled by an attorney with personal connections to Ailes.
    The alleged purpose of the reported operation was to defame and destroy enemies of Ailes and Fox News. And if these allegations of efforts to smear journalistic and political opponents are true, it is a disgrace -- an egregious violation of journalistic ethics.
    But it also might well have been perfectly legal.
    Though Ailes may have schooled Richard Nixon, his actions are unlikely to ever rise to the level of criminality demonstrated in the Watergate scandal. The use by an elected public official of the IRS, the CIA and the Justice Department to smear political enemies is a criminal act. Hiring detectives to investigate enemies in the private sector is not.
    As a result, unless evidence of illegal wiretaps or other types of criminal activity such as blackmail, extortion, video surveillance, computer hacking or tax fraud emerge, the whole Fox scandal is likely to pass without a criminal charge ever being filed.
    Civil lawsuits for money damages like that asserted by former anchor Gretchen Carlson are an entirely different matter -- and potentially much more damaging.
    The civil lawsuits down the road will focus on sexual harassment claims and whether upper management knew of, but tolerated, an atmosphere which sounds more like "Mad Men" than Watergate. As a result, the country will demand an explanation from the "Fair and Balanced Network" concerning the allegations of confidential multi-million dollar settlements paid to women who previously made claims against Ailes, not to mention the network's biggest star, Bill O'Reilly.
    As the civil suits progress, Ailes is likely to look more like a pathetic version of an aged and overweight Don Draper than an unshaven and jowly Richard Nixon.
    From what we now know, no one is likely to go to jail. But if the harassment allegations are true, the abuse of female employees over such a long period of time by the nation's most highly rated news network will permanently tarnish the Ailes and Murdoch legacy -- and could leave Fox News' reputation in ashes, just like "Rosebud" in "Citizen Kane."