Fox News’ Judicial Analyst Falsely Claims Trump “Can’t Reveal” Classified Info To A Court

Written by Media Matters Staff

Published

Fox News senior judicial analyst Andrew Napolitano falsely claimed that President Donald Trump “can’t reveal” classified information to courts while defending his Muslim ban, “nor should he have to do it.”

On the February 13 edition of Fox News’ America’s Newsroom, Napolitano, in discussing comments made by senior White House policy adviser Stephen Miller, told host Bill Hemmer that if intelligence community officials had shared information about a potential terror attack with Trump and recommended an immigration ban, Trump would not have to cite that information when defending the ban in court. Napolitano claimed that Trump “can't reveal what the intelligence community told him, nor should he have to do it.”

But the United States legal code contains a set of procedures for properly handling classified information within the judicial system. A report published by the American Constitution Society for Law and Policy (ACS) says that federal “courts can require the executive to submit allegedly classified documents” in private and that “they are well-equipped to apply safeguards and protective procedures that would allow litigation to proceed without jeopardizing national security.” ACS also noted that courts have “successfully worked together” with other branches of government ”to manage classified evidence.” And Library of Congress constitutional scholar Louis Fisher told Congress that withholding classified information from a judge ruling on a case would only ensure the “the judge would be arms-length from making an informed decision.”

From the February 13 edition of Fox News’ America’s Newsroom:

BILL HEMMER (CO-HOST): If you, as commander-in-chief, were given an example that there’s an ISIS lone wolf or some kind of terror attack that could planned out there or could be in the offing, how would that fit based on the discussions and the arguments we're having now?

ANDREW NAPOLITANO: Let’s say the intelligence community said to the president, “There are some dangerous people about to come in from three of those countries, but they also” -- this is a hypothetical, Bill --  “but they also have multiple IDs and multiple passports,” a plausible hypothetical. “We think you have to impose a ban until we can isolate them.” That is absolutely sound thinking on the president's part to impose the ban. But he can't reveal that to a court. He can't reveal what the intelligence community told him, nor should he have to do it. Which is why, under the Constitution, the president makes foreign policy, not the Congress, and not the courts.