Fox's “news side” runs with a farcical report that the DOJ “ordered” the FBI not to charge Clinton

Last night's Special Report was a case study in how Fox's news team operates

Melissa Joskow / Media Matters

On Wednesday, Fox News opened its studios for an unprecedented meeting with the advertising industry. The network hoped to make the case that -- in spite of the constant controversies involving its biggest stars -- media buyers should continue to place ads on the network without fear of damaging the advertisers’ brands. Fox executives sought to focus attention on the network’s “news side,” arguing that advertisers should be proud to associate themselves with staffers like Special Report anchor Bret Baier who produce purportedly credible journalism akin to that at other networks.

Fox’s “news side” actually serves two distinct roles that are quite different from those of reporting bureaus at other networks, as I’ve noted before. First, as Wednesday’s meeting underscores, when there is an outcry caused by the right-wing hosts whose bigoted commentary is at the core of the Fox business model, network executives can point to the “news side” in order to shield the Fox brand. Second, the “news side” produces incremental reporting, often based on Republican claims, that advances conservative narratives, providing ammunition for Fox’s right-wing hosts to yell about.

A report that aired on Wednesday night’s Special Report provides a clear case study of this second role, with one of Fox’s premier “news side” journalists pushing along a Republican congressman’s effort to create a new scandal about the Department of Justice and the FBI’s investigation into former Secretary of State Hillary Clinton’s use of a private email server.

On Tuesday night, Rep. John Ratcliffe (R-TX) tweeted an exchange he had with former FBI attorney Lisa Page during a closed House Judiciary Committee hearing last July. Ratcliffe wrote, “Lisa Page confirmed to me under oath that the FBI was ordered by the Obama DOJ not to consider charging Hillary Clinton for gross negligence in the handling of classified information.”

This was not news, and there was no such “order.”

As Adam Goldman, who covers the FBI for The New York Times, pointed out in response, the Justice Department inspector general’s review of DOJ and FBI activities during the 2016 election laid all of this out when it was published in June. According to the report, DOJ prosecutors who analyzed the “gross negligence” statute which Ratcliffe and Page discussed had concluded that making that charge would require a great deal of evidence, which the FBI investigators concluded “was lacking.” The report also noted that the prosecutors' interpretation of the statute was consistent with ”prior cases under different leadership including in the 2008 decision not to prosecute former Attorney General Alberto Gonzales for mishandling classified documents."

Moreover, as Cato Institute senior fellow Julian Sanchez pointed out, the scandal Ratcliffe was attempting to generate is debunked by the simple fact that the conduct he and Page discussed was absolutely normal. The FBI doesn’t charge people -- prosecutors at the Justice Department do -- and it is entirely typical for DOJ prosecutors to explain to FBI investigators the precedents that govern what evidence they would need to bring a case. In fact, Page explicitly made this point elsewhere in her questioning by Ratcliffe. As Sanchez put it, the exchange shows “DOJ is giving obviously correct legal advice—‘the facts you’re describing aren’t the sort of thing that section of the statute would apply to, or that we’d charge under that section’—and Ratcliffe is trying to spin it as a (nonexistent) ‘order’ not to investigate.”

For credible journalists, that’s where the story would end.

But Page has been a frequent subject of baseless theories from right-wing media and congressional Republicans suggesting that senior FBI and Justice Department officials had conspired to prevent Clinton from being charged with crimes, while pushing through a politically motivated investigation of now-President Donald Trump. Ratcliffe’s claim fit into those narratives, and so it quickly spread through right-wing media.

By Wednesday night, Special Report, Fox’s flagship “news side” broadcast, was covering the story.

Baier, a Fox anchor often included in the ranks of the network’s legitimate journalists, introduced the story by pushing the “order” falsehood: “We are learning more tonight about what the Obama Justice Department ordered federal lawyers to do and not to do concerning the Hillary Clinton email investigation.”

Fox chief intelligence correspondent Catherine Herridge’s subsequent report focused on the transcript Ratcliffe tweeted. Throughout the segment, Herridge bolstered the sense that Radcliffe's tweet pointed to a real scandal. She claimed that Page's testimony “appears to conflict” with former FBI Director James Comey’s July 2016 statement that the FBI’s investigation was done “independently." She produced an FBI document that said “DOJ not willing to charge” on gross negligence. And she highlighted denunciations of the Justice Department from Trump and a Republican congressman. At no point did she note that the Justice Department inspector general had already explained that the normal DOJ/FBI process had been followed. 

Later in the program, Baier returned to the exchange Ratcliffe had highlighted, calling it “significant” and saying that it “seems to open up a lot of other questions.” Invoking a constant refrain from presidential mouthpiece and Fox colleague Sean Hannity, Baier later asked a guest, “Is this fair to say that this shows, Mo, two tiers of justice? I mean, is this the beginning of kind of saying it wasn't fair the other way either?”

The first Special Report segment caught the attention of the president, who was apparently watching and tweeted out the caption featured during the report.

As is typical for Fox “news side” reporting, Herridge’s segment provided grist for the network’s far-right stars. All three prime-time shows devoted time to the story, using it as fresh evidence of the purported corruption at the Obama Justice Department that supposedly let Clinton get away with crimes.  

“My question to you is simple,” Hannity asked Sen. Lindsey Graham (R-SC) in one such segment. “Based on what Lisa Page said, do we now have to go back right to Hillary Clinton if, in fact, the DOJ rigged that from the get-go?”

By Thursday morning, America’s Newsroom -- a Fox program typically described as part of the network’s “news side” -- was running scandalmongering coverage falsely claiming that “New Transcripts Show Lisa Page Said DOJ Ordered FBI To Stand Down On Charging Clinton.” (In adding “stand down” to the alleged order, Fox is invoking its endless coverage intended to push the myth that U.S. forces were issued a “stand down” order during the September 11, 2012, attacks on U.S. diplomatic facilities in Benghazi, Libya.)

This won’t be the last we hear of this nonsensical story. As Baier said on Wednesday’s show, “We're going to see a lot more of this angle, especially from the Judiciary Committee and the Senate and elsewhere.” And Fox’s “news side” journalists will be more than happy to support that narrative from Senate Republicans, regardless of how ridiculous their claims may be. That’s literally what they are there for.