Fox & Friends Touts Unfounded Claims About Clinton's Email, Including One From A Discredited Republican Lawyer

Fox & Friends Pushes Baseless Claims About The FBI Probe Into Clinton's Use Of Private Email. On the January 12 edition of Fox News' Fox & Friends, Fox's senior judicial analyst Judge Andrew Napolitano claimed Hillary Clinton instructed an aide to strip classification markings from a classified document and send it over a nonsecure fax machine, which he said “shows an intent and a willingness to violate the laws.” Napolitano also suggested Clinton herself could be the target of the FBI's investigation into her use of private email while in office. Fox & Friends host Steve Doocy then cited discredited Republican lawyer Joseph diGenova to claim that the FBI has “the goods on her” to secure an indictment, prompting Napolitano to assert that “you will see massive resignations ... the likes of which we saw at the time of Watergate” if the Justice Department does not prosecute Clinton: 

ANDREW NAPOLITANO: Good morning, Steve. There's two investigations going on now. And both are coming to a head shortly. The first is the email investigation. Did she or did she not fail to secure national security secrets? The evidence that she failed to do that is overwhelming. Over the weekend, we've got two smoking guns, two emails from Mrs. Clinton to two separate aides. One says that document that says secret on it that you can't get to me using a State Department fax machine, don't worry, use another fax machine. The other, that document that says secret on it, referring to another document, get rid of the word “secret” before you send to me. That shows an intent and a willingness to violate the laws that require that you protect secrets.

STEVE DOOCY (HOST): She was telling her aide how to break the law.

NAPOLITANO: Precisely. We don't know if the aide did it.

DOOCY: It doesn't matter, does it?

NAPOLITANO: No it doesn't. Because it shows a willingness and an intent to break the law.

[...]

DOOCY: She has said on numerous occasions, the stuff on my private emailthatwas unsecured?Nothing secret there. But now, as of yesterday, we're up to at least 1,340 classified emails.

NAPOLITANO: Correct. The other thing she said after Catherine's report came out yesterday, was, Fox News is wrong, I'm not being investigated. She would not know whether or not she's being investigated. Thereis no obligationofthe Justice Department to tell her she's being investigated until they get closerto the end of their work.

DOOCY: And real quick exit question: alright, it sounds like the FBI is amassing all this data. It sounds like, from what you'vesaid and whatothers have said, Joe diGenova said the other day, that they've got the goods on her. Next thing you know,OK,they just found it. They give it to theattorneygeneral. If they decide not to prosecute her, what'sgoing to happen inside the FBI?

NAPOLITANO: I think you will see massive resignations and almosta, if I could use the phrase,“SaturdayNightMassacre,”the likes of which we saw at the time of Watergate. [Fox News, Fox & Friends, 1/12/16] 

But The State Department Said Clinton's Requested Talking Points Were Transmitted Using A Secure Method, And Clinton Explained That Unclassified Information From Classified Documents "Can Be Appropriately Transmitted Unclassified

National Security Experts Say There's No Evidence That Hillary Clinton Broke Any Laws By Requesting Talking Points Be Sent To Her Over A “Nonsecure” Channel. As national security and legal experts told Media Matters, claims that the email toadvisor JakeSullivan proves lawbreaking are overheated. They cited the lack of evidence that anything classified was ever sent through any unsecure avenues -- and the fact that separating unclassified from classified information for separate treatment can be permissible:

“We don't know what was exactly in the email, but we also don't know that it contained any classified information,” said Steven Aftergood, Director of the Project on Government Secrecy at the Federation of American Scientists. “Not everything in a classified document is necessarily classified and it is entirely possible to separate out unclassified material from what is classified.”

J. William Leonard, former director of the U.S. Information Security Oversight Office under George W. Bush, said such requests must be handled “with care,” but also found no proof of illegality.

“It shows people dealing with the daily frustration in terms of trying to use somewhat cumbersome security accounts,” he said of Clinton's email. He later said that to prove anything illegal or improper occurred “you'd have to see the actual substance of what was eventually transmitted.”

Thomas S. Blanton, director of the National Security Archive at George Washington University who has testified before Congress on related issues, also found no evidence of an improper act being committed.

“It's certainly not illegal, it's unclassified information,” he said. “She has argued that she did not send [anything] classified, or marked classified. And I don't think they have come up with an example.” [Media Matters, 1/11/16]

Associated Press: State Department's “Records ... Turned Up A Secure Fax Transmission Shortly After Clinton's Email Exchange With Adviser Jake Sullivan.” On January 9, the Associated Press reported that the State Department “checked its records and found no indication that the document in question was sent to Secretary Clinton using nonsecure fax or email,” and “instead turned up a secure fax transmission shortly after Clinton's email exchange”:

The State Department provided more detail Saturday about a 2011 document at the center of Hillary Clinton's latest email controversy, as an official said the former secretary of state never received the paper by nonsecure fax. But many other questions remained unanswered.

Clinton, whose presidential campaign has been challenged by her use of a private email account while secretary of state, is facing questions anew after Friday's revelation that she asked an adviser to go around a secure fax system to transmit a set of “talking points” on an unspecified subject.

Clinton told the adviser to turn it “into nonpaper w/no identifying heading and send nonsecure.” Republicans immediately pounced on the exchange and suggested it proved impropriety.

The State Department said Friday that no such document was sent by email.

And on Saturday, a State Department official who wasn't authorized to speak publicly on the increasingly complicated review of Clinton's emails said the agency “checked its records and found no indication that the document in question was sent to Secretary Clinton using nonsecure fax or email.”

The official, who demanded anonymity, said records instead turned up a secure fax transmission shortly after Clinton's email exchange with adviser Jake Sullivan on June 17, 2011. The implication was that this was the same document. [Associated Press, 1/9/16]

Politico: “Officials See No Indication The Document Was Ever Sent To The Email Account Clinton Used.” In a January 8 article, Politico cited State Department spokesman John Kirby stating that the State Department has “found no indication that the document was emailed to former Secretary Clinton”:

The FBI has been investigating whether Clinton's homemade email ever put classified information at risk, and Republicans on the Hill have also been probing the matter. A key question they've asked is whether someone instructed aides to send classified information over unsecured accounts, which can be illegal.

The campaign in a statement Friday said Clinton would do no such thing.

“It is false that Hillary Clinton asked for classified material to be sent over a nonsecure system,” said spokesman Brian Fallon in a statement.

And State Department spokesman John Kirby said officials see no indication the document was ever sent to the email account Clinton used, which was hosted on a private server.

“We did do some forensics on that and found no evidence it was actually emailed to her,” Kirby said at a daily news briefing on Friday. “We have found no indication that the document was emailed to former Secretary Clinton. There are other ways it could have found its way to her for her use.”

Kirby also said the fact that the talking points were initially set to be sent via a secure system did not necessarily mean they were classified.

“Just because something, a document, is on a classified system doesn't necessarily make the document, the content, necessarily classified,” he added. He would not say if the document was classified. [Politico, 1/8/16]

Clinton On Face The Nation: “Oftentimes There Is A Lot Of Information That Isn't At All Classified” Within Classified Documents That “Can Be Appropriately Transmitted Unclassified.” On a January 10 appearance on CBS' Face the Nation, Hillary Clinton discussed the email in question and explained that “oftentimes there is a lot of information that isn't at all classified” in classified government documents, and that “whatever information can be appropriately transmitted unclassified often was”:

Hillary Clinton on Sunday defended instructing an aide to send information to her through a “nonsecure” channel, saying the data she requested was not classified and accusing her presidential rivals of seeking to score political points over a non-issue.

The State Department released more than 3,000 of Clinton's emails from her time as secretary of State on Friday. One of the emails has drawn scrutiny because in it, Clinton, who was awaiting a secure fax detailing talking points, instructed an adviser to turn the talking points into “nonpaper w no identifying heading and send nonsecure” because the fax wasn't coming through.

[...]

“This is another instance where what is common practice -- I need information, I had some points I had to make, and I was waiting for a secure fax that could give me the whole picture, but oftentimes there is a lot of information that isn't at all classified,” Clinton said Sunday on “Face the Nation.” “So whatever information can be appropriately transmitted unclassified often was. That's true for every agency in the government and everybody that does business with the government.”

[...]

The State Department release does not make clear what the contents of the email were or whether the information was classified. Clinton contends that she trusted Sullivan to respond appropriately. [The Hill, 1/10/16]

And Media Reports Have Repeatedly Confirmed That The FBI Probe Is Neither Criminal In Nature Nor Targeting Hillary Clinton

Washington Post: FBI Probe Is “Focused On Ensuring The Proper Handling Of Classified Material.” Hillary Clinton “is not a target” of the FBI investigation, which is “focused on ensuring the proper handling of classified material.” From The Washington Post's August 11, 2015, report:

The inquiry by the FBI is considered preliminary and appears to be focused on ensuring the proper handling of classified material. Officials have said that Clinton, the Democratic presidential front-runner, is not a target. [The Washington Post, 8/11/15]

NY Times: Hillary Clinton “Is Not A Target Of The Investigation.” In an August 14, 2015, article, The New York Times explained that Hillary Clinton is not a target of the FBI's investigation into her private email server. The Times wrote:

Law enforcement officials have said that Mrs. Clinton, who is seeking the 2016 Democratic nomination for president, is not a target of the investigation, and she has said there is no evidence that her account was hacked. There has also been no evidence that she broke the law, and many specialists believe the occasional appearance of classified information in her account was probably of marginal consequence. [The New York Times, 8/14/15]

CNN: Clinton “Has Not Personally Been Declared The Subject Of The Investigation Into Her Emails.” Recapping an August 19, 2015, interview between CNN host Chris Cuomo and Donald Trump, CNN.com noted that Clinton “has not personally been declared the subject of the investigation into her emails”:

Cuomo countered that Petraeus knew the information was classified and intentionally passed it along, but there has been no indication to date that the Justice Department believes Clinton intentionally shared information she knew was classified. She has not personally been declared the subject of the investigation into her emails. [CNN.com,8/21/15]

Joseph DiGenova Is A Discredited Republican Activist Who Pushed False Benghazi Claims And Suffered Criticisms For Unprofessional Conduct

DiGenova Falsely Claimed Members Of The Military Were “Relieved Of Their Duty Because They Insisted That There Be A Military Response” To Benghazi Attacks. On October 28, 2013, diGenova claimed on WMAL that some members of the military were “relieved of their duty because they insisted that there be a military response” the night of the September 2012 Benghazi attacks, despite the fact that a military response was ordered by then-Secretary of Defense Leon Panetta. These military forces included a Marine anti-terrorism team deployed from Spain and special operations forces that were stationed in Croatia and the United States, but they did not arrive until after the attacks were over. [Media Matters, 10/29/13; Media Matters, 10/28/13]

DiGenova Baselessly Alleged That Obama Administration Tried To Cover Up Theft Of Hundreds Of Surface-To-Air Missiles In Benghazi. In October 2013, diGenova claimed on WMAL that the Obama administration was trying to cover up the theft of 400 surface-to-air missiles that were somehow linked to the American presence in Benghazi. While diGenova told WMAL that he didn't whether the missiles were physically at the CIA annex the night of the attack, “it is clear that the annex was somehow involved in the process of the distribution of those missiles.” DiGenova did not name his sources for this claim, acknowledged that some of his information is not “verifiable,” and provided no evidence to back up the allegation. [Media Matters, 8/13/13; CNS News, 8/13/13]

DiGenova Has Been Criticized By Lawmaker For “Non-Stop Mugging” For The Press And For Lacking “Impartiality, Non-Partisanship, And Professionalism.” In 1998, Joseph DiGenova and his wife and legal partner Victoria Toensing, who were working as outside counsel for the House Committee on Education and the Workforce, were criticized for their actions in connection with the Monica Lewinsky scandal. A February 5, 1998, Roll Call article “Rep. Bill Clay (D-Mo) launched a stinging attack on the two lead attorneys investigating the Teamsters campaign finance scandal yesterday, alleging that the attorneys have lost their objectivity because of their frequent television appearances and 'participation' in the scandal involving ex-White House intern Monica Lewinsky.” The article also reported:

Clay's rebuke of former independent counsel Joseph diGenova and his wife and law firm partner, Victoria Toensing, who were hired in November by a House Education and the Workforce subcommittee, came in a letter to Chairman Bill Goodling (R-Pa) yesterday.

“Sadly, Mr. diGenova and Ms. Toensing have become so closely aligned with the President's critics and so personally identified with the scandal itself as to have relinquished the air of impartiality, non-partisanship, and professionalism required of leaders of a serious congressional investigation,” wrote Clay, the ranking member of the Education and the Workforce Committee.

“Put more bluntly,” Clay added, “the couple's relentless self-promotion and non-stop mugging for the likes of Geraldo Rivera - however good for business and their egos - is unseemly, undignified, unworthy of this committee, and generally detrimental to important Congressional functions.”

Clay said in his letter that a LEXIS/NEXIS search found 166 citations of diGenova and Toensing commenting on the Lewinsky affair between Jan. 21 and Feb. 4. The letter came even as Republicans approved an additional $750,000 for the diGenova-Toensing investigation. [Roll Call, 2/5/98 via Nexis; Media Matters, 7/13/10]

DiGenova Was Criticized For Conflict Of Interest Over Dual Role In Separate DOJ Investigations. DiGenova and Toensing were criticized for serving as special counsel in the House Education and the Workforce Committee probe into Justice Department oversight of the Teamsters union while also representing Dan Burton, the committee's chairman at the time, in a separate Justice Department probe. A December 18, 1997, Roll Call article reported: “Rep. Bill Clay (Mo), the full committee's ranking Democrat, has raised questions about the fact that the two attorneys are also representing Burton in the Justice Department's investigation of charges that the Government Reform and Oversight chairman tried to extort campaign money from a lobbyist during the 1996 election cycle.” The article also reported:

Democrats believe this creates a conflict of interest because [Rep. Pete] Hoekstra's [R-MI] subcommittee plans to investigate the Justice Department's decade-long oversight of the Teamsters, specifically the agency's handling of the union's 1996 presidential election.

Clay says that diGenova and Toensing, a former chief counsel for the Senate Intelligence Committee and a deputy assistant attorney general in the Reagan Administration, should not lead a Congressional investigation of the Justice Department while the department is conducting a criminal investigation of one of their outside clients. [Roll Call, 12/18/97 via Nexis; Media Matters, 7/13/10]

DiGenova Was Involved In Discredited And Retracted Article About President Clinton. DiGenova and Toensing were involved in a retracted Dallas Morning News article claiming that a Secret Service agent had witnessed President Clinton and Lewinsky in a “compromising situation.” From the February 27, 1998, report by The Washington Post's Howard Kurtz:

The melodrama began when Toensing was approached by an intermediary for a Secret Service agent who was said to be willing to testify that he saw Clinton and Lewinsky in a compromising situation. DiGenova passed this on to Morning News reporter David Jackson (“Joe and I exchanged a few words over that,” Toensing says), and the paper published the story in its Internet edition, attributing the account to an unnamed lawyer “familiar with the negotiations.” But by then the intermediary had told Toensing the agent was backing off.

Hours later, the Morning News retracted the report, saying the “longtime Washington lawyer” had said the information was “inaccurate.”

The couple now say that Toensing, taking a call from Jackson hours before deadline, told the reporter: “If Joe is your source, it's wrong.”

“The bottom line is, they were told not to print and they chose to print,” diGenova says. “I don't know how much more helpful you can be to a newspaper than to tell them not to print.”

Carl Leubsdorf, the paper's Washington bureau chief, says: “The reporter's recollection of that conversation is quite different. He was told that 'if Joe told you that, he shouldn't have.' If it had been the other way, the story of course would have been reassessed at that point.” [The Washington Post, 2/27/98]