In a new report about the FBI's investigation into the security of the private server Hillary Clinton used as secretary of state, Politico briefly mentioned the fact that the Department of Justice confirmed in a legal brief that Clinton had the authority to review and delete her personal emails. But Politico incorrectly went on to claim that the brief "stopp[ed] short" of confirming the appropriateness of such actions after Clinton left the State Department -- a claim contradicted by the brief itself.
New information and widespread media criticism of the highly flawed New York Times story that falsely implied Hillary Clinton was the target of a criminal investigation over her email practices as secretary of state confirm the paper conflated two different stories to scandalize a routine bureaucratic process. In fact, the current Freedom of Information Act (FOIA) review of Clinton's emails that has led to interagency disputes over retroactive classification would have taken place regardless of whether Clinton used a private email account.
The Washington Times misleadingly cited a government factsheet to claim that a "U.S. policy" could authorize the confiscation of Hillary Clinton's personal email server. In fact, the authority to which the Times refers explicitly notes that its "advisories are NOT binding upon U.S. Government departments and agencies."
On July 1, the Times published an article headlined "Admission Of Hillary's Classified Emails Opens Door For Feds To Seize Her Servers." The report suggested that because some information on Clinton's State Department emails has now been retroactively classified, the NSA could seize the private server on which she stored the emails in order to "destroy" it.
The emails in question are part of a collection of the former Secretary of State's official business correspondence, which was conducted on a non-government email account, and which the State Department is currently reviewing and releasing to the public. According to the Times, the classification of "two dozen" of her thousands of emails could "trigger a U.S. policy that authorizes the government to take control of her private server and sanitize the contents":
The State Department on Wednesday conceded that two dozen of Hillary Clinton's emails did contain classified information, a fact that could trigger a U.S. policy that authorizes the government to take control of her private server and sanitize the contents.
A former senior intelligence official told The Washington Times the policy also requires the government to check other Internet paths her secret information could have taken.
The procedures are spelled out by the National Security Agency's special panel on controlling leaked secrets, called the Committee on National Security Systems. It published a policy, "Securing Data and Handling Spillage Events," that fits Mrs. Clinton's unauthorized private server kept at her home while she was secretary of state, according to the retired officer's reading of the regulations.
Media outlets are reporting that Sen. David Vitter (R-LA) will attempt to block the confirmation of Loretta Lynch as U.S. attorney general on the grounds that the president's "illegal executive amnesty for illegal immigrants would be implemented" by the nominee. However, in reports about the January 28 hearing in which Vitter explained his "huge concern" about the "unconstitutional" executive actions on immigration, both mainstream and right-wing media failed to note that the statutory provision the senator relied on was not only the wrong one, it was out-of-date.
Lynch, the federal prosecutor for the Eastern District of New York, has been widely praised across the political spectrum, and multiple conservatives -- including current Republican senators -- support her nomination. Her credentials are so strong, even right-wing media favorites called to her confirmation hearing by GOP members of the Senate Judiciary Committee agreed she was unobjectionable. Nevertheless, from the moment President Obama nominated Lynch, conservative media have attempted to smear her -- attempts that have been riddled with spectacular mistakes.
Right-wing media are now hitching their opposition to Lynch to the positions of Vitter, who has repeatedly stated he will do his best to block the nominee's confirmation because she does not oppose the president's executive actions on immigration. On her radio show, Laura Ingraham hosted Vitter and agreed with his opposition to Lynch because of her support for "executive amnesty," repeating the debunked myth that Lynch believes there is a legal right for undocumented immigrants to work. Breitbart.com, which has struggled mightily to successfully criticize the nominee, also highlighted Vitter's obstructionist intentions toward Lynch, noting that "Lynch's outspoken support for President Obama's executive amnesty" was in part responsible for the current Republican delay on an up-or-down vote.
Mainstream outlets have reported on Vitter's antipathy toward Lynch as well, based on her support for the "reasonable[ness]" of the justification for the immigration actions. These reports have specifically noted that the senator laid out his case for the illegality of deferred action for certain undocumented immigrants at her recent hearing, where he accused the administration of flouting the law by assigning Deferred Action for Parental Accountability (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA) to the Department of Homeland Security. As Vitter said during the hearing, "I've read the plan, and the plan as I read it is for all of that to be done in the Department of Homeland Security. So my question would be, what is the statutory basis to allow that, when under the statute -- not some order, not some legal opinion -- the statute, the law, word by word it says the attorney general is in the middle of that decision[.]" The Washington Post, for example, included a photo of the oversized copy of 8 U.S. Code § 1182(d)(5) that Vitter displayed as he repeatedly questioned the nominee for agreeing with the White House's legal defense of the immigration actions. Vitter finally remarked, "Well, again, I'll have to be following up for the fourth time, but that'll be a central question. The plan is not for the attorney general to be in the middle of this at all. The statute says that 'the attorney general is.' Why aren't we following the statute?"
Unfortunately, both right-wing and mainstream media reporting on Vitter, the January 28 hearing, and his opposition to Lynch have failed to note that Vitter's questioning was referring to the wrong part of the law, which has since been superseded.
The witness list for the Senate Judiciary Committee's hearing on Loretta Lynch, the highly regarded nominee for attorney general, indicates the process will be a forum for right-wing media favorites and myths but will have little to do with her qualifications.
Lynch, the U.S. attorney for the Eastern District of New York, has long been praised across the political spectrum as a model federal prosecutor. Lynch has been confirmed twice as a U.S. attorney -- including by some of the same Republican senators now in control of the Judiciary Committee -- and news of her nomination in November brought a new round of support, including from conservative law enforcement sources.
Current New York Police Department Commissioner William Bratton called Lynch "a remarkable prosecutor with a clear sense of justice without fear or favor." Former FBI director Louis Freeh wrote in a letter to Judiciary Committee leadership that he couldn't think of "a more qualified nominee" and was "happy to give Ms. Lynch my highest personal and professional recommendation." Freeh also wrote that he had spoken with "several of my former judicial colleagues who echo this support, and note that Ms. Lynch has gained a terrific reputation for effectively, fairly and independently enforcing the law." Former New York City Mayor Rudy Giuliani, who worked with Lynch on an infamous police brutality case, has said "if I were in the Senate, I would confirm her."
Fringe right-wing media outlets and figures initially ignored this broad support and attacked Lynch anyway. The effort was spectacularly unsuccessful, as they mixed up the nominee with an entirely different Loretta Lynch and then claimed that her membership in Delta Sigma Theta, one of the country's leading African-American sororities, was "controversial."
Leading Fox News figures were better informed about the New York nominee, most notably News Corp. chairman Rupert Murdoch, who immediately noted Lynch had a "reputation for fairness and strict legality." In an O'Reilly Factor segment with Megyn Kelly on November 10, Bill O'Reilly said he was "heartened" she would be the new attorney general. In response, Kelly praised Lynch:
KELLY: I have to say that I think this is the person who should be the most acceptable to the right wing or the Republicans in this country of anybody who President Obama was considering. She is a straight shooter. First of all, she would be the first black female attorney general, right? I mean, that in and of itself is a pretty amazing accomplishment. Went to Harvard undergrad, went to Harvard Law School. She has no close ties to the White House. She is not some firm ideologue or partisan. She has prosecuted Democrats and Republicans. She's been a hero on gang crime, on terrorism.
Republican senators have been similarly honest about Lynch's record, admitting that she "seems to be a solid choice" and will instead use her hearing as a forum for grievances they have with the administration and outgoing Attorney General Eric Holder. The new chairman of the committee, Sen. Chuck Grassley (R-IA), told Politico: "All I can tell you is that immigration is going to be a big part of it. ... Not because of her views on immigration, but of the president's action on immigration and the extent of what she feels he's acted in a legal way."
Unfortunately, a review of the newly released witness list reveals that the Republican choices for this "proxy war of sorts" rely heavily on right-wing media favorites who frequently spread debunked smears and myths:
On January 20, the day before the five-year anniversary of Citizens United, the Supreme Court will hear yet another case that could roll back campaign finance restrictions, this time for judicial elections. Here is a media guide to some of the legal briefs filed by experts in that case, Williams-Yulee v. the Florida Bar, which warn that allowing judges to solicit campaign donations directly is a recipe for disaster.
As the current Supreme Court term winds down, a number of highly anticipated cases will be released in the coming week. Here are five of the decisions right-wing media have repeatedly misinformed about, as well as the top myths and facts.
USA Today allowed a deeply misleading op-ed to endorse the conservative plaintiffs challenging the Affordable Care Act's "contraceptive mandate" before the Supreme Court in Sebelius v. Hobby Lobby, without disclosing the author's professional connections to Hobby Lobby's owners.
On March 23, USA Today published an opinion piece by Ken Starr, former Clinton-era independent counsel and current president of Baylor University, arguing in favor of Hobby Lobby, the for-profit, secular corporation currently challenging the availability of women's preventive services in health insurance under the ACA. And yet USA Today did not disclose the fact that as part of its religious mission, Baylor has a professional relationship with the owners of Hobby Lobby.
Baylor explained its partnership with the Green family, Hobby Lobby's founding owners, in its alumni magazine:
Over the past few years, the Green family has become involved with the university through Baylor's Institute for Studies of Religion (ISR) and the Green Scholars Initiative (GSI). A partnership with the family has established Baylor as a major research partner and an academic home for the GSI's primary undergraduate program. Baylor plays a leadership role in providing undergraduate and graduate coursework and research.
The website of the Green Scholars Initiative confirms this close relationship between the Greens and Baylor.
This professional connection between Hobby Lobby and the author of an op-ed supporting the business' position before the Supreme Court should have been disclosed by USA Today, especially in light of Starr's extremely biased explanation of the case and outright inaccuracies. From his op-ed:
From the moment Debo Adegbile was nominated to the most recent smear in the Washington Examiner, right-wing media have made clear that their objection to President Obama's pick to head the Civil Rights Division of the Department of Justice (DOJ) is that he is one of the preeminent civil rights attorneys of his generation.
Paradoxical? Only if you believe in civil rights precedent and the idea that civil rights experts should be the ones bringing civil rights cases.
Right-wing media, apparently, believe in none of that.
Byron York's attempt in the Examiner to tenuously link Adegbile with guidance from the Equal Employment Opportunity Commission was just another example of right-wing media's concern that Adegbile might do his job a little too well. Resorting to invoking right-wing media's favorite civil rights bogeyman of the long-established legal doctrine for establishing impermissible racial discrimination from unjustified racial effects, York accused Adegbile of "embrac[ing]" the EEOC's "crazy" use of disparate impact precedent. From the March 3 column:
It's not unusual for businesses to conduct a check before hiring new employees. If the check uncovers that the applicant has, say, a felony conviction in his past -- well, that can put a quick end to the application process.
But Obama's Equal Employment Opportunity Commission has ruled that the use of background checks in hiring is racially discriminatory.
Hearing that, many employers might say: This is crazy. There are companies that will reject a job candidate because he posted something embarrassing on his Facebook page, and the Obama administration is warning businesses they'll be in trouble if they don't hire convicted felons?
Of course a business, after a background check, might well choose to hire a felon. But that is the employer's decision -- not the Obama administration's.
At the moment, EEOC "guidance" does not have the force of law, no matter the threats from top EEOC officials. That's where Debo Adegbile comes in. When he was with the NAACP, Adegbile praised the commission's guidelines. Now, if he becomes the assistant attorney general for civil rights, he will have the power to pursue the same or similar policies.
In written questions, Republican Sen. Chuck Grassley asked Adegbile whether he would, if confirmed, "take action to abridge or eliminate an employer's ability to perform criminal background checks on potential employees." Adegbile embraced the EEOC position and suggested it would guide his own actions in the Justice Department. "If employers do perform background checks, the EEOC has released guidance on the subject," he told Grassley.
But York is stretching in this failed attempt to land a new hit on Adegbile.
On March 5, the Supreme Court will hear oral arguments in Halliburton v. Erica P. John Fund, a class action brought on behalf of investors allegedly defrauded by false disclosures of the Texas oil giant. Halliburton has fought to deny a trial on the merits for over a decade, and is now asking the conservative justices to overturn decades of precedent that allows shareholder lawsuits under the rebuttable presumption that this type of misinformation is a "fraud on the market."