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6 Times When Fox’s Judge Napolitano Got Things Very, Very Wrong


Since the recent faux-news debacle, in which Fox Chief Judicial Analyst Andrew Napolitano announced that according to his “inside sources,” a British intelligence agency wiretapped the Trump campaign, “The Judge” has found himself benched. Apparently, there are limits to Fox’s tolerance for propaganda, even in its workshop of sometimes fact-averse conspiracy theories and partisan hackery. While last week’s incidents seems to have pushed Fox over the edge, it sure wasn’t the first time Napolitano purveyed drivel disguised as “judicial analysis.” Here is a reminder of a few times Nap got it very wrong:

  1. April 2016: He claimed the SCOTUS decision ruling that voting districts should be based total population would inevitably lead to massive amounts of non-citizens fraudulently voting.  Well, we’ve had an entire presidential election since the decision came down, and so far, there’s been no credible evidence of massive voter fraud at the hands of non-citizens.  “Voter fraud” was a popular cry around election time, but everyone from state governors to Trump’s own counsel has definitively said there has been exactly zero evidence of the fraud Nap predicted.
  2. Fall 2016: Napolitano was “100-percent certain” Hillary Clinton was about to be prosecuted. Undoubtedly, emailgate was a significant factor in Clinton’s November loss; but real legal experts generally agreed that there wasn’t much in the way of actual indictable criminal offenses. Judge Nap, though, was absolutely certain that Hillary was about to become federal prison’s newest inmate. On air, he stated,”the evidence of her guilt is overwhelming,” and, that he was “100-percent certain” that the FBI has enough evidence to indict and convict.  Even FBI director James Comey publicly proclaimed Clinton to be careless, but not criminal, Napolitano persisted with his predictions. As of today, emails are old news, Hillary still roams free, and I think we can all agree that this “prediction” was really just a pipe dream for Hillary Haters.
  3. August 2015: Napolitano said that Clinton’s emails revealed the location of Ambassador Stevens, who was killed in Benghazi. Yeah, not really. There were emails that had Stevens’ location in them, but they were sent about 18 months before the Benghazi attacks. That’s kind of an important distinction given that Napolitano was using these half-truths to further vilify Hillary Clinton.
  4. April 2014: During a standoff in Nevada between federal agents and Cliven Bundy, Napolitano said the Constitution does not authorize the federal government to own land at all. Nap told Sean Hannity, “all of it is being held unconstitutionally and all of it should be returned to the private property owners from which it was taken or to the states in which it exists, period.” The problem? The Constitution has a little section called the “property clause” which exactly allows the federal government to own land. And that’s not a matter of opinion, either. In fact, in 2007, Congressional Research Services issued this report clarifying just that point. There are many matters of Constitutional interpretation ripe for meaningful debate- but this isn’t one of them.
  5. March 2014: On an episode of The Daily Show, Napolitano told John Stewart that President Lincoln “tried to arm the slaves.” In addition to being a legal analyst extraordinaire, this former Superior Court Judge fancies himself an expert on slavery and racism (I kid you not – he wrote a book called Dred Scott’s Revenge). Arming the slaves? Sure. I hear they were going to put that scene in the movie, but Daniel Day-Lewis just couldn’t get into character.
  6. March 2012: He accused President Obama of signing a “secret bill” to abridge free speech.

    In 2012, Congress passed the “Federal Restricted Buildings and Grounds Improvement Act” (HR347), a bill which slightly revised a 1971 trespass law.  Under HR347, it became a federal crime to trespass into areas guarded by the secret service. According to Fox’s chief judicial analyst, HR347 was President Obama’s way of “criminalizing free speech.”  Nap’s legal analysis about the functioning of HR347 was suspect at best, but his characterization of it as “secret” was flat out absurd.   President Obama did not sign the bill at a public ceremony, but his press secretary Jay Carney announced it at a formal press conference on the day it a signed. So that’s pretty much the opposite of “secret.”

Noticing a pattern yet? Legal analysts often disagree with one another about statutory interpretation, the meaning of various precedents, or the application of law to a set of acts. Reasonable minds can certainly differ over the outcome of many legal debates. But Andrew Napolitano often breaks the key rule of legal analysis – he doesn’t stick to facts. He apparently remains off the air at Fox News, but hasn’t been officially “suspended.” Sure. When a network’s “chief judicial analyst” is suddenly MIA during a Supreme Court confirmation hearing, I’m sure it doesn’t mean he’s been suspended. Good for Fox for finally taking action, even if they aren’t admitting it.


This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos