A new report claims the Obama transition team was warned in 2008 about problems with wait times at the VA. This morning on Fox and Friends, Judge Andrew Napolitano weighed in on the growing controversy.

Over 40 veterans at the Phoenix VA Medical Center died waiting for care. On Monday, VA whistleblower and former psychiatrist at the Phoenix VA hospital, Dr. Margaret Moxness, told Fox News that patients were only partially treated and two committed suicide while she was there.

The 2008 Department of Veterans Affairs report stated in part: “Audits of outpatient scheduling and patient waiting times completed since 2005 have identified noncompliance with the policies and procedures for scheduling, inaccurate reporting of patient waiting times and errors in [electronic waiting lists].”

Judge Napolitano called the administration’s failure to act “incompetence” with the hopes that the American people wouldn’t notice.

“It’s almost inconceivable that they did nothing in the five years until these deaths and these waiting lists became known to all of us,” he said. “It’s a head-scratcher. I can’t figure out why they would be so neglectful for just a sympathetic and well-deserving audience – veterans. There’s not political gain here.”

The judge said that if any of the waiting lists were created to make the records look better, that’s a federal crime. “You’re talking about a serious and large number of criminal prosecutions.”

It would also allow families of loved ones who died and veterans who suffered while waiting for care, to sue the federal government.