Melissa Joskow / Media Matters

If Fox News executives care at all about journalistic ethics -- and admittedly, the evidence suggests they do not -- President Donald Trump has trapped them in a very difficult spot.

Fox senior judicial analyst Andrew Napolitano argued in a scathing op-ed last Thursday that special counsel Robert Mueller “laid out at least a half-dozen crimes of obstruction committed by Trump,” adding that “ordering obstruction to save himself from the consequences of his own behavior is unlawful, defenseless and condemnable.” He made similar comments during a harsh Friday monologue on his show on the Fox’s streaming service, saying, “I am disappointed in the behavior of the president.”  

Trump reacted on Saturday (apparently responding to a Fox segment in which lawyer Alan Dershowitz rebutted Napolitano), alleging that Napolitano had soured on him in retaliation after Trump refused to appoint him to the Supreme Court and that the Fox analyst had also sought a “pardon for his friend.”

....Ever since Andrew came to my office to ask that I appoint him to the U.S. Supreme Court, and I said NO, he has been very hostile! Also asked for pardon for his friend. A good “pal” of low ratings Shepard Smith.

— Donald J. Trump (@realDonaldTrump) April 28, 2019

If true, Fox’s senior judicial analyst seeking a job and other favors from the president while commenting on his administration’s legal maneuvers on-air would represent a massive breach of journalistic ethics. But, of course, it’s hard to take Trump’s claims at face value because he is a notorious liar.

For his part, Napolitano denied Trump’s claims during a Monday morning appearance on Fox Business. Napolitano said that during a conversation before Trump’s inauguration “about the type of person that should replace Justice [Antonin] Scalia,” Trump asked him to provide “a spiel as to why I should put you on” and he did so because “who would turn that down.” He also said that at one point (it’s unclear whether this was during a separate conversation) Trump had asked him for information about the conviction of a “mutual friend of his and mine.”

On Fox Business this morning, Andrew Napolitano denies asking President Trump for a spot on the Supreme Court and says Trump is misleading about the pardon.



Is Fox News going to look into this at all? Are they going to at least pretend to care? pic.twitter.com/FozRl3YUVI

— Matthew Gertz (@MattGertz) April 29, 2019

Napolitano’s version of the conversations is much less damning, if still not the sort of exchanges one can imagine happening between an analyst at any other network and any other president. But, of course, it’s also difficult to take Napolitano’s word at face value, as he’s a conspiracy theorist who has, among other things, argued that the 9/11 attacks “couldn't possibly have been done the way the government told us.” And a Politico article from March 2017 may bolster Trump’s claim because it reported that Napolitano was telling friends that he was on Trump’s shortlist for his second Supreme Court pick.

A normal news outlet facing a charge from the president of ethical improprieties by its staffer would want to find out what actually happened and either repudiate the allegation or punish the employee. But going down that road would place Fox in a horrible conundrum.

If the network looks into it and finds that Napolitano is telling the truth, would Fox be willing to publicly stand by its staffer and say that Trump is lying, even if that risks driving a wedge between the network and the president (one in which its audience would likely side with the latter)?

If a network probe finds that Trump is telling the truth, would the executives punish their staffer (something they are usually loathe to do) or would they ignore it and risk the (unusually appropriate) ire of the president?

But if Napolitano does face discipline, it will be obvious that it is only happening because the president was angered by his commentary. Fox has set the precedent that the network has no problem with interactions between Trump and its personalities -- an arrangement no other outlet would accept. It’s difficult to draw a distinction between what Trump alleged and, say, his interactions with Fox host and pro-Trump sycophant Jeanine Pirro, other than that Trump approves of Pirro’s commentary and doesn’t approve of Napolitano’s.

These would all be difficult questions for a normal news outlet with a healthy regard for standards and ethics, but since we’re talking about Fox News, this is all functionally irrelevant.

The network is denying comment to reporters who ask about it and doing its best to keep its viewers in the dark. Napolitano was permitted to respond to the president only on Fox Business, which has low ratings, rather than on the main network, and no Fox News show has covered the story as of noon Monday, including the network’s purported media criticism show, MediaBuzz.

Fox’s nonresponse is in keeping with the network’s typical disregard for basic ethical principles. Fox is a propaganda apparatus that takes as little action as possible based on how much bad press the network is getting, what it thinks it can get away with, and the prominence of the staffer involved.

Fox’s PR team seems to have made a calculated bet that if the network stayed quiet the story would blow over. So far, that strategy appears to have worked.