Fox thinks it has a better shot on appeal — but former prosecutor thinks that's a losing bet too

New York Times reporter Jeremy Peters told MSNBC's Nicolle Wallace last week that the rumor in Fox world is that they know they can't win the suit in Delaware and that they have a better chance on appeal.

They've already infuriated the judge by withholding information that should have been handed over as part of the subpoenas. That prompted a discussion of whether a special master should be appointed to investigate the actions of the defense and determine if a crime was committed.

The first day of opening statements begins Monday, but a New York Times report reiterated the faith that the network and parent company has given in a possible appeal. Democratic presidents predominantly nominated the Third Circuit Court of Appeals judges. It's the Supreme Court that is the most conservative.

"Fox lawyers are already preparing for an appeal — a sign they are under no illusion that beating Dominion’s case will be easy," the Times report. "At several recent hearings in front of Judge Eric M. Davis, Fox has been represented by Erin Murphy, an appellate lawyer with experience arguing cases before the Supreme Court."

The report goes on to say that Dominion Voting Systems recognizes that an appeal is a realistic outcome and has hired its own appellate lawyer.

The Third Circuit Court will likely take a nuanced look at the case, which isn't good for Fox.

Former Justice Department prosecutor Renato Mariotti said that he isn't sure if it is a wise decision for the Fox team to take it up to the conservative Supreme Court.

"It’s not clear to me why Fox News believes it will fare well in the Supreme Court if it loses at trial against Dominion," he tweeted Sunday. "Conservative judges have expressed a desire to make libel cases easier, not harder, to prove."