Arguing that newly revealed "Deep Throat" W. Mark Felt "corrupted his office" as assistant director of the FBI by leaking information to Washington Post reporter Bob Woodward, Fox News senior judicial analyst Andrew P. Napolitano falsely claimed that Felt could have informed a Justice Department special prosecutor of what he knew about the Watergate scandal, rather than commit "malfeasance in office." Host Bill O'Reilly concurred. In fact, there was no special prosecutor investigating Watergate when Felt began feeding information to Woodward in June 1972; the first special prosecutor, Archibald Cox, was not appointed until May 1973.
Napolitano initially claimed that Felt should have brought his information on the Watergate scandal to his superiors at the FBI and the Justice Department. But when O'Reilly responded that those superiors, Attorney General John N. Mitchell and FBI acting director L. Patrick Gray, were both Nixon loyalists and that reporting to them could have ruined Felt's career, Napolitano replied that Felt "had a special prosecutor he could have gone to." (In fact, by June 1972 Mitchell had already resigned as attorney general to take over Nixon's re-election campaign, but his successor, Richard G. Kleindienst, would have faced a similar conflict of interest: Kleindienst resigned in May 1973 "because of close ties to individuals implicated in the Watergate inquiry," according to the Post's contemporaneous account.)
But Felt began aiding Woodward months before a special Watergate prosecutor was appointed. Felt began providing Woodward with information two days after the burglary, on June 19, 1972. Assistant U.S. attorney Earl Silbert took charge of the case immediately, but he answered to the attorney general, and Nixon's White House aides monitored him closely. After months of revelations in the Post, with help from Felt, four of Nixon's top aides (including Kleindienst) resigned or were fired on April 30, 1973, and Nixon empowered Kleindienst's replacement, Elliott Richardson, to appoint a special prosecutor to investigate Watergate. Cox accepted the position on May 18, 1973; later that year, in an act that became known as the "Saturday Night Massacre," he was fired on Nixon's orders for subpoenaing tapes of important White House conversations. Leon Jaworski was named as Cox's replacement on November 1, 1973 [New York Times Abstracts, 11/2/73].
From the June 2 edition of Fox News' The O'Reilly Factor:
O'REILLY: All right, [Fox News political analyst Dick] Morris thinks he's a hero, and you abhor what he did.
NAPOLITANO: Sure. He set a pattern that I hope no FBI agent follows, which is instead of passing information about the bad guys, whether they're CIA agents, other FBI agents, the attorney general, or the president on to your superiors, you pass it on to the press.
O'REILLY: But --
NAPOLITANO: That's wrong.
O'REILLY: -- your top superior's a crook, Mitchell, who's indicted. All right? So he's a crook.
O'REILLY: L. Patrick Gray, your immediate superiors, appointed by Nixon, who's the guy you're investigating. So as we said last night, you know what happens to FBI agents who go against the prevailing wisdom. They're in Fargo and they're destroyed. This guy knew that would happen.
NAPOLITANO: OK. But he had a special prosecutor that he could have gone to. By delaying, impeding, or preventing information from going to the special prosecutor --
O'REILLY: All right, let me ask you this --
NAPOLITANO: -- he breaks the law.
O'REILLY: -- if he had gone to the special prosecutor at the time --
NAPOLITANO: Instead of to Woodward.
O'REILLY: Sirica, right?
NAPOLITANO: No, [John] Sirica was the judge.
O'REILLY: The judge. Who was the special prosecutor?
NAPOLITANO: The special prosecutor initially --
O'REILLY: -- was Cox.
NAPOLITANO: -- was Archibald Cox. Ultimately, Leon Jaworski. Felt serves during both of their terms --
O'REILLY: OK. Say he had gone around L. Patrick Gray and John Mitchell.
NAPOLITANO: That would have been an act of a hero.
O'REILLY: So -- but he would have been fired. He would have been vilified. He would have been torn to pieces. His family would have been attacked, right?
NAPOLITANO: But it wouldn't have broken the law. Instead, he breaks the law.