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By Ari Melber
A former Fox News employee plans to tell Congress about allegations the outlet tried to stop her from reporting on the Stormy Daniels controversy during the 2016 election, citing an exception to a non-disclosure agreement she signed.
On Thursday, House Oversight Committee Chairman Elijah Cummings formally requested the reporter, Diana Falzone, talk with committee investigators and provide documents related to her attempts to report on Daniels’ allegations that Michael Cohen, President Donald Trump’s former longtime lawyer, paid her hush money after an alleged affair with Trump in 2006.
Falzone’s lawyer, Nancy Erika Smith, told MSNBC on Thursday night that Falzone will now comply under an exception to her NDA with Fox News.
“The law requires that you be allowed to participate in any government investigation — and no NDA can stop that,” Smith said on “The Beat with Ari Melber.”
Cummings’ letter requests an interview with Falzone and any documents regarding payments by Trump “to silence women alleging extramarital affairs with him prior to the 2016 presidential election,” and “any action taken against [Falzone] in connection with attempts to report on such stories.”
The New Yorker reported in March that Fox News prevented Falzone from reporting on Daniels’ allegations during the election to protect Trump, which Fox denies. A former Fox News executive also maintains the story was shelved because it was not journalistically ready, not because of any political agenda.
In her MSNBC interview, Smith specifically rebutted that account, calling it a “lie” and saying the executive was not the person who prevented Falzone’s story from being published.
“We’ll see what the evidence shows about how Fox reacted to this story,” Smith added.
[The lawyer for Daniels at the time, Keith Davidson, tells MSNBC that Falzone did contact him while she was working on the story during the campaign with “specific details.”
“She had the amount, she had the corporate names that the original settlement was named in, she had the dates of the affair,” Davidson said, “and she asked me to confirm those details.”
The letter from Cummings comes days after Smith publicly suggested Congress could help her client speak by providing a lawful end-run around her NDA with Fox News.
“Maybe Congress should subpoena my client and all of her records,” Smith said in an MSNBC interview, “and then we will see exactly what Fox News had.”
Many NDA agreements include provisions that broadly bar public statements but still provide exceptions for complying with criminal and government investigations. Falzone has not released the text of her NDA.
Many legal experts say a legitimate Congressional request overrides a typical NDA, and even if an NDA tried to bar such cooperation, courts are unlikely to punish someone for responding to a valid investigative request for information.
University of Florida law professor Mark Fenster, a transparency expert, says courts typically put aside an NDA when a person is “responding to a properly issued Congressional subpoena.”
Orly Lobel, an expert on employment law at University of San Diego School of Law, said Falzone could “tell her story” without worry if she were responding to a lawful congressional request as this is a “matter of public concern.”
Fox News did not immediately respond to a request for comment on Cummings’ request.
Other members of Congress have also weighed in on the issue.
Rep. Ted Lieu, D-Calif., who sits on the House Judiciary committee, tweeted about his willingness to use formal Congressional requests to free people who“feel silenced” from speaking out about the Trump administration.
“Using NDAs to intimidate and silence government employees and other potential whistleblowers is deeply troubling,” Lieu added in a statement.