Fox Hosts Repeat Debunked Claims About Clinton's Email While Discussing Judicial Watch Agreement

Written by Media Matters Staff

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Fox hosts repackaged old debunked smears and made several dubious claims about former Secretary of State Hillary Clinton's use of a private email system while discussing an agreement between the State Department and the conservative activist organization Judicial Watch, allowing the group to interview former Clinton aides regarding her server. Host Steve Doocy and Fox senior judicial analyst Andrew Napolitano repeatedly claimed the probe is a “criminal case,” even though the FBI has not said it is a criminal probe and several legal experts have explained that “there is clearly no evidence of any crime.” Napolitano and the co-hosts also claimed that the agreement would not allow Bryan Pagliano, who set up Clinton's sever, to take the Fifth Amendment, but Politico noted that he in fact could by citing the ongoing FBI investigation. In addition, they dismissed comparisons of Clinton’s email use to former Secretary of State Colin Powell's use of private email, despite the State Department determining his private email also contained now-classified information. From the April 18 edition of Fox News' Fox & Friends:

BRIAN KILMEADE (HOST): Hillary Clinton continuing to defend herself in the ongoing probe into her private email server. 

[...]

STEVE DOOCY (HOST): But the FBI showing its hand this weekend, unveiling its secret weapon in the case. A judge allowing Judicial Watch to interview some of Clinton's aides, including Huma Abedin and Cheryl Mills and Bryan Pagliano. And that's a big deal. 

AINSLEY EARHARDT (HOST): Here to explain why, Fox News senior judicial analyst Judge Andrew Napolitano. OK, Judge, why is this such a big deal? 

ANDREW NAPOLITANO: Well, at the same time the FBI is the investigating Mrs. Clinton for taking all of her emails, including those that contained state secrets, off the government server and putting it onto her own, the State Department is being sued by Judicial Watch. That’s 38 lawsuits, but two are relevant here, because the two that are relevant here -- two separate judges ordered her aides, the same people that the FBI wants in the criminal case, to testify in the Freedom ofInformation Act case. What does that mean? That means that two judges have already found that there was a conspiracy in the office of the the secretary of state, Mrs. Clinton when she was secretary of state, to avoid and evade federal law. And these federal judges want to find out about it. So the testimony in the civil case is compelled. The interviews in the criminal case is voluntary, but whatever they say under oath in the civil case can be used against them by the FBI when they interrogate them in the criminal case. 

DOOCY: And what’s interesting about this is, we famously saw a number of months back that Bryan Pagliano, the fellow who set up email server, he kept taking the Fifth. Can he take the Fifth this time, can any of them? 

KILMEADE: Now he's gotten immunity.

NAPOLITANO: He does not have any Fifth Amendment right, exactly, because they gave him immunity. Once they give you immunity, they can give it to you involuntarily. In this case, he accepted voluntarily. He's now the government's chief witness against Mrs. Clinton. 

DOOCY: So he is compelled to say everything. 

NAPOLITANO: Correct. And what did he do? He was paid $5,000 to commit the probably criminal act of migrating a public email stream to the secret servers and a secret email stream to the secret servers. 

KILMEADE: You told us, too, at the time that they wouldn't have given him this immunity if they didn't think they were going to get something for sure. 

NAPOLITANO: And use what they get in some manner.

KILMEADE: So he's not going to go, “I really have nothing to say. I wasn’t there, or I didn’t --” they already know that he's going to give up something, correct?

NAPOLITANO: Correct. What's also interesting is these interrogations, these depositions in the civil cases are probably going to be videotaped. We will probably see this very, very soon. 

EARHARDT: Right, we’ll see it all. Well, let’s listen to what Hillary Clinton has said about this, if she’s going to talk to the FBI.

[...]

DOOCY: Security review sounds so innocuous. It's a criminal case. 

NAPOLITANO: When she demeans the case, all the FBI agents and all the experts they've consulted and all witnesses they've interviewed and all work they did to extract information from the servers that she thought she wiped clean, when she demeans the case, she demeans them. It's crazy for her to do that. When she says --

KILMEADE: It gets personal.

NAPOLITANO: Right. When she says, “I can't wait to talk to them." Who in their right mind being investigated by the FBI for espionage can't wait to talk to them? 

KILMEADE: Right. It defies logic. Now, if you were representing any of her aides, would you recommend that they turn down the request for an interview? 

NAPOLITANO: Absolutely. 

KILMEADE: So if they do that -- but if they're loyal to Hillary Clinton, they won't do that, correct?

NAPOLITANO: Well, they all have conflicts. They have a conflict between their loyalty to her and their own exposure to criminal prosecution. She has a conflict. No white collar criminal defense lawyer would ever let his or her client talk to the FBI. That's the Martha Stewart case, where in an ordinary conversation with the FBI, she lied, she was prosecuted. She went to jail for it. But Mrs. Clinton, you just ran the tape, says she can't wait to talk to the FBI. 

EARHARDT: She has to say that.

NAPOLITANO: She'll be damned if she does and damned if she doesn't.

EARHARDT: She has to say that, she's running for president. 

KILMEADE: But the other thing is, she keeps bringing up this analogy with Colin Powell. Colin Powell did the same thing. Is that true? 

DOOCY: It was a private email account, not a server.

NAPOLITANO: No, it’s absolutely, absolutely not true. Colin Powell occasionally used his personal Gmail account to communicate with people in the State Department occasionally. Alberto Gonzales once brought some documents home in his briefcase and reported himself when he brought it home the next day. She did this for 4 years with 60,000 emails, 2,200 of which were classified.

KILMEADE: Many of which we’ll never see.

DOOCY: She had her own server. Big difference.