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When federal prosecutors are nearing the end of criminal investigations, they often invite the subjects of those investigations to speak with them. The soon-to-be defendants are tempted to give their version of events to prosecutors, and prosecutors are looking to take the legal pulse of the subjects of their work. These invitations should always be declined, but they are not.

Special counsel Robert Mueller — who is investigating President Donald Trump for obstruction of justice, pre-presidential banking irregularities and conspiracy to solicit or receive campaign aid from foreign nationals (the latter is what the media erroneously call collusion) — has made it known to former New York Mayor Rudolph Giuliani, the head of Trump’s legal team, that he wants to speak to the president.

Should Trump voluntarily speak with Mueller? In a word: No. Here is the back story.

Though I have been critical of some judgment calls made by Giuliani in his representation of Trump, I recognize, like anyone who has watched him or worked with or against him, that Giuliani is a smart and experienced lawyer. He has prosecuted directly or indirectly more than 5,000 criminal cases. He knows the criminal justice system, and he understands the power of prosecutors.

Yet the advice of most criminal defense lawyers and legal commentators familiar with the situation in which Giuliani finds himself today is to keep his client far away from the prosecutors. Here’s why.

Thanks to Giuliani’s numerous television appearances during which he has forcefully defended his client, Giuliani and Mueller have engaged in a very public series of negotiations on the limits, if any, that they might agree to as ground rules for an interview of the president.

Giuliani wants to limit the subject of questions to the alleged conspiracy between Trump’s campaign and Russians. After all, he argues, this is the stated purpose given by the Department of Justice for starting the special counsel’s investigation. And he wants to limit the number of questions and the time for all questions and answers. He argues that the president’s constitutional obligations transcend the needs of Mueller’s probe.

Mueller argues that he has an ethical obligation to follow whatever evidence of criminal behavior lawfully comes into his hands, about the president or his colleagues. As such, because he does not know in advance what Trump’s answers to his questions will be, he cannot consent to any limitations on his follow-up questions.

If I were Giuliani, I would tell Mueller that the negotiations are terminated and the president will not voluntarily sit for an interview with him. There are paramount and prudential reasons for this.

First, when prosecutors want to talk to a person they are investigating, the talk is intended to help the prosecutors, not the subject of the investigation. So why should Trump engage in a process that could only help those pursuing him?
Second, the prosecutors know their evidence far better than the president or his legal team possibly could know it, and these prosecutors know how to trip up whomever they are interviewing. So why should Trump give prosecutors an opportunity to trap him into uttering a falsehood in an environment where doing so can be a criminal act?

I recognize that Giuliani’s client is the most powerful person on earth, someone who is accustomed to having his way followed. And he has said countless times that he wants to talk to Mueller. Yet President Trump does not use an economy of words. Experience teaches that the undisciplined use of words by the subject of a criminal investigation is a prosecutor’s dream when it takes place in an official inquiry.

It is Giuliani’s job to prevent that dream from becoming reality by convincing his client, perhaps through an aggressive mock question-and-answer session conducted by Giuliani himself, that no good for Trump could come from a Mueller interview. I have seen many criminal cases in which potential defendants who thought they could talk prosecutors out of an indictment tried to do so and made matters worse for themselves.
But there is an elephant in the room.

That elephant is a grand jury subpoena. The Mueller interview is voluntary. If Trump agreed to it, he would not be under oath, and he could consult with counsel during it. Also, he could leave it whenever he wished. A grand jury subpoena compels a person to testify. The testimony is under oath, takes place without counsel present and can go on for as long as prosecutors and the grand jurors want to question the person. And they can ask him any questions they want to ask.

Surely, Trump would challenge a subpoena before a federal district court, and the challenge might land in the Supreme Court. Yet the controlling case, United States v. Nixon, is a unanimous 1974 Supreme Court decision requiring President Richard Nixon to surrender his infamous Oval Office tapes.

Though not directly on the point of compelled presidential personal oral testimony, the language in the Nixon case and the values underlying it all favor enforcement of a subpoena requiring personal testimony by the president. When the Ken Starr grand jury served a subpoena for the president’s testimony on Bill Clinton, whose crimes it was investigating, Clinton and his lawyers concluded that he needed to comply with it, which he did.

Of course, Trump could accept the subpoena and then invoke his Fifth Amendment-protected right to silence. However, he once publicly said, “If you’re innocent, why are you taking the Fifth?” So such an invocation would be catastrophic politically, but it would legally insulate him from helping Mueller to prosecute him.

Another president once weighed in on dealings with bureaucrats and prosecutors. Ronald Reagan quipped many times that the nine most terrifying words in the English language are: “I’m from the government, and I’m here to help.” Mr. President, beware of prosecutors bearing invitations.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Russia 
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In the past week, former New York Mayor Rudolph Giuliani, now the chief lawyer and principal spokesman for President Donald Trump’s legal team, has offered arguments more harmful to Trump than helpful. In a series of combative, disjointed and logically challenged television rants, Giuliani has essentially argued that Trump did not engage in any conspiracy with the Russians for them to provide help to his campaign and that even if he did, it wasn’t criminal.

In making this argument, Giuliani has played a word game in which he has effectively created a straw man and then denied it’s real because it’s made of straw. He has done this by avoiding the use of the word “conspiracy,” substituting the word “collusion” and then arguing that there is no crime of collusion and therefore Trump did not commit a crime. This is an argument based on a false premise.

Here is the back story.

When the FBI received word from a former British intelligence source in June 2016 that Russian intelligence agents might be providing assistance to the Trump campaign, it began an investigation of the campaign. After the British source gave the FBI a dossier that alleged salacious behavior by Trump in Moscow in 2013 — behavior he has denied — and purported to corroborate awareness of the behavior by Russian government officials, the FBI used the dossier as part of a presentation to the Foreign Intelligence Surveillance Court, which authorized surveillance of the Trump campaign.

Because one of the Trump campaign officials under surveillance, Jeff Sessions, became the attorney general in January 2017, he recused himself from the investigation, and the Department of Justice appointed former FBI Director Robert Mueller special counsel to head the investigation independent of the attorney general.

Mueller discovered dozens of contacts between the Trump campaign and Russians, many of them Russian intelligence agents. Mueller’s grand juries have indicted over two dozen Russians, some Russian intelligence officials, for interfering with the 2016 presidential campaign, and President Trump imposed heavy financial sanctions on many of them.

Mueller also discovered the existence of a June 2016 meeting in Trump Tower in New York between high-ranking campaign officials and Russian agents. When The New York Times revealed the meeting a year after it took place, the Trump folks claimed that the meeting was about the difficulties Americans were having adopting Russian children. Then emails emerged showing an offer to Donald Trump Jr. by a Russian agent to meet and provide help to the campaign in the form of dirt on Hillary Clinton. This was dirt allegedly obtained by hacking into her campaign’s computers. This was an offer that Don Jr. accepted.

The president has denied any knowledge of this meeting until it emerged publicly in July 2017, and Don Jr. has testified under oath before Congress that his father did not know of the meeting until the media revealed it. But last week, Michael Cohen, a lawyer who represented Trump for the 10 years preceding his inauguration and whose office was three doors down a hall from Trump’s, told Mueller and the media that Trump knew of the meeting beforehand and encouraged his campaign folks, including Don Jr., to make it happen.

Is any of this unlawful? That question brings us back to Giuliani.

In Giuliani’s zeal to represent his client, he has unleashed vitriolic verbal attacks on the credibility, morality and ethics of Cohen, using words and innuendo too lurid to recount here. Yet the ferocity of Giuliani’s attacks is now a problem for Trump. That’s because the rules of legal ethics prohibit lawyers from attacking the credibility of likely witnesses against their clients outside the courtroom. This is especially so for government witnesses.

Government witnesses meet with prosecutors and testify before grand juries in secret. When defense counsel attacks those witnesses in public, the government often views that as witness tampering — behavior that gives witnesses pause before testifying by freighting or threatening them. When defense counsel did that to government witnesses in cases that a young Rudy Giuliani prosecuted, he persuaded judges to remove those lawyers from the cases. That is the danger that confronts Giuliani and Trump now.

If Mueller has enough ammo (all of it from Giuliani’s mouth) to persuade a federal judge to bar Giuliani from continuing to represent Trump — and it appears he does — whoever replaces Giuliani will need to review and understand more than 1.4 million documents that the White House and the Trump campaign have surrendered to Mueller. That will be an enormous burden and a major financial, political and legal setback for Trump.

The case Mueller is investigating is not about collusion. Collusion is a Hollywood and a media word. The case is about conspiracy — and Giuliani knows this. A conspiracy is an agreement to commit a crime as a result of which at least one of those who agreed took at least one material step in furtherance of the agreement. Stated differently, Mueller is investigating an alleged agreement between Russian intelligence agents and Trump campaign officials for the Russians to provide dirt on Clinton to the campaign. The dirt need not have arrived — and whatever may have arrived need not have been dirt — for the crime of conspiracy to have taken place, because the essence of conspiracy is an agreement, whether consummated or not.

In one of his more bizarre rants on Fox News Channel early this week, Giuliani said there may have been a meeting at Trump Tower to plan the meeting with the Russians. Why would he reveal this? Because Mueller knows it and will reveal it. And both know that such a meeting would be the beginning of an agreement, as well as a material step in furtherance of it.
Sometimes even famous lawyers do more harm than good to their clients.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Russia 
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Last week, in Ridgewood, New Jersey, a 92-year-old unsung American patriot lost his battle with congestive heart failure. He had been surrounded by his wife and children and their spouses and their children. He left this vale of tears in his wife’s arms, peacefully and with dignity.

His was an American life.

He was born in Newark, New Jersey, during the Roaring ’20s, the son of Italian immigrants who had come to America as children. When he was 4 years old, he met a curly-haired little girl in the neighborhood who was just three days older than he. She would become his high school sweetheart and his best friend for 88 years and his wife for the last 70 of them.

In a large public high school, he did not excel in academics, but he was a superb athlete; and he had an unquenchable interest in electronics, a subject not taught in the public schools in those days.

His graduation from high school in 1943 was accelerated from June to January because the country was fighting in World War II and it needed the boys to join the effort quickly. Our boy enlisted in the Navy.

Four months after graduation, at age 17, he completed Navy boot camp and was excited about his first assignment — on a submarine in the north Atlantic. As he was boarding the submarine at a naval base in Rhode Island, he slipped and fell on a wet dock and broke his right foot. He was hospitalized for two months. The submarine he was about to enter never returned and was never found.

He was then assigned to a destroyer escort, which cruised the Mediterranean and supported Patton’s Army in the liberation of Italy. Aboard ship, he excelled in electronics and boxing — always the athlete yet reading about wires and batteries and electrical currents until late in the night.

One day, shortly after the liberation of Naples, the city of his father’s birth, he was on leave with his buddies and he saw an old man who resembled his grandfather sitting on a curb stone. The old man’s home had been destroyed by Allied bombing, and the old man himself was without shoes.

Our friend resisted the collective wisdom of his buddies and took off his military-issued boots and gave them to the old man. He had his buddies sneak him back aboard ship before his superiors could see him in his stocking feet.

When he was charitable, he hid it.

He returned home to New Jersey in 1946. The little girl had grown up to be a beauty and a brain. During the war, she worked in the Newark Public Library for 17 cents an hour. She borrowed and read a book a week in the 2 1/2 years of our man’s involvement in the war.

Two years after he came home, he and that grown-up girl got married.

His first and only adult job was with the New Jersey Bell Telephone Co. He started out climbing telephone poles, and he went on to install equipment in homes and offices. He soon moved into management and eventually went into teaching — his favorite job.

He taught electronics to new employees and colleagues and even to executives who wanted to advance themselves. This was the electronics he had learned in the Navy, supplemented by the electronics that he had taught to himself.

He and his wife had three boys, one of whom followed him into the telephone company and two of whom received scholarships to Ivy League schools. He taught tough lessons to his boys at home — lessons about honesty, humility, self-reliance and teamwork. His favorite one-liner was, “Anything worth doing is worth doing well.”

He practiced what he preached. He was a tough taskmaster who demanded much and gave much; and he always forgave. Always. He was an iron fist inside a velvet glove.

He was the first person in his family to vote Republican, and he took a lot of heat for that. FDR had catered to immigrant families in the big cities, and they formed a healthy part of the base of the Democratic Party in the 1930s and ’40s. But when the boys came home from Europe and the Pacific and started families and then when Ike ran and many of his soldier and sailor buddies could vote for their former supreme Allied commander, he did so.

Voting Republican in the late ’40s and early ’50s was anathema in an Italian-American Roman Catholic family in the Northeast. Today it is pretty much the norm.

He would explain to his parents and in-laws and sons that he feared the Democrats would give away the store to stay in office. Though he loved the Navy and respected the police, he was skeptical of government in general, and he loved Jefferson’s mantra that “that government is best which governs least.”

He was a devout Roman Catholic. He loved the New York Yankees, the New York Football Giants and Fox News — and he loved that girl he married, more with each passing day.

In his waning years, his wife sacrificed dearly for him because his tobacco-ravaged heart was unable to do its job alone. Yet modern science and a wife who overlooked nothing added many happy years to his life.

But nature has her rhythms, and they can be unforgiving. There is a time for living and a time for dying. Even God died. After this marvelous man received the Anointing of the Sick and he said a peaceful, loving goodbye, the angels came and brought his soul to heaven.

I knew this man well and loved him with all my heart. He taught me all his values.

His name was Andrew Alexander Napolitano.

He was my father.

Requiescat in pace, Dad.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
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As a trial judge in New Jersey during the Ronald Reagan and George H.W. Bush years, I spent much of my time trying to settle cases. This process involved bringing into my chambers the lawyers for the disputants and asking them in the absence of their adversaries to lay their cards on the table.

After I found out what the litigants truly wanted and I did some pushing and shoving and jawboning, more often than not, agreements were reached. The threat of an imminent jury trial — with its expenses, complexities and uncertainties — was often enough to bring the parties to a quick, sensible and relatively inexpensive resolution. Occasionally, flattery — even fatuous flattery — helped.

All trial judges in America are familiar with this process. It takes place in criminal, as well as civil, cases in every courthouse in the country nearly every day.

But it takes place in secret. I could not imagine announcing to the public the state of the negotiations or my opinions of any of the negotiators midstream. If compelled by some arcane custom to do so, I’d have praised the unpraiseworthy — to help bring about a favorable result.

I was reminded of all this earlier in the week as I watched the politically unpopular performance of President Donald Trump at an internationally televised — and now much-analyzed — joint news conference he held with Russian President Vladimir Putin.

It appears that because he did not utter anything like President Reagan’s “Mr. Gorbachev, tear down this wall,” referring to the Berlin Wall, or “trust but verify,” referring to U.S.-Soviet nuclear arms treaties and because he gave public credence to Putin’s private and incredulous denials of Russian meddling in the 2016 presidential election, he somehow came across as weak or insufficiently American.

At this writing, no nationally known Republican officeholder except Sen. Rand Paul of Kentucky has come publicly to the president’s defense. Some in the Democratic Party and some of my colleagues in the media have even accused Trump of treason. How misunderstanding they are.

Here is the back story.

For 18 months, Trump has sought to develop a personal relationship with Putin unlike any relationship that any modern American president has had with him or his predecessors. The Democrats and Republican never-Trumpers doubt Trump’s bona fides and even his intellect. “Who could cut a deal with a monster?” they have bellowed.

Make no mistake; Putin is a monster. He has invaded Ukraine, bombed rebels in Syria, shored up fanatics in Iran, imprisoned political opponents on false charges and stolen billions from Russian oligarchs and the Russian people.

To this litany of criminality, Trump has wisely asked: How have any of his monstrosities harmed the United States? Answer: None of this is morally sound, and all of it is profoundly unlawful, but none of it has harmed us.

This realization has led Trump — in defiance of the advice from his own secretary of state, CIA director and national security adviser — to try to understand Putin and to negotiate with him.

There is much to negotiate about. We want the Russians to stay out of our computers and away from our elections. We want them to stop trying to reorganize the Middle East. And we want them to reduce their nuclear and long-range offensive weaponry. Of course, they want the same from us.

I don’t know whether Putin can be reasoned with. But I believe that if anyone can do it, Donald Trump can. This is what made me think this past week of all those litigations I helped to resolve. Negotiations are often fluid. They take time and patience, as well as threats and flattery, and they cannot be successful under a microscope.

Stated differently, Trump knows how to negotiate, and his skills cannot be assessed midstream — because midstream is often muddy and muddled. Trump’s efforts this week were just a beginning. His public praise of Putin and giving moral equivalence to Putin and our intelligence services were not to state truths but to influence Putin’s thinking in order to bend Putin’s will — eventually — to his own.

But the neocons in Congress will have none of this. The power of American arms-makers is formidable and profound. They have acolytes in all branches of the federal government. They depend on the threats of foreign governments to animate taxpayer funding of their armaments.

They know that Russia is the only threat in Europe, and they fear that if President Trump reaches a meaningful rapprochement with President Putin, there will result a diminished American appetite for their weaponry.

And they know that Donald Trump understands that.

So they have jumped on a fluid long-term negotiation at its inception by mocking the president’s flattery. They would have mocked Franklin Roosevelt for calling monstrous Soviet dictator Josef Stalin “Uncle Joe” as he bent him to his will.
Where does this leave us? We have impatient media that hate the president, a bipartisan majority in Congress beholden to the military-industrial complex, and a president who knows more about negotiating with bad guys than any of them.

And unlike the warmongers, the president is willing to talk to anyone if there is a chance it could result in peace. President Lyndon B. Johnson often remarked that there are two things in life you never want to watch being made and only want to see when completed: legislation and sausages. We should add international peace to that short list.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Foreign Policy, Ideology • Tags: American Media, Donald Trump, Russia 
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When Donald Trump started running for the Republican nomination for president in June 2015, he began by attacking the Republican establishment in Washington, and he began his attack by calling the establishment “the swamp.”

His real target was the permanent government and its enablers in the legal, financial, diplomatic and intelligence communities in Washington. These entities hover around power centers no matter which party is in power.

Beneath the swamp, Trump argued, lies the deep state. This is a loose collection of career government officials who operate outside ordinary legal and constitutional frameworks and use the levers of government power to favor their own, affect public policy and stay in power. Though I did not vote for Trump — I voted for the Libertarian candidate — a part of me rejoiced at his election because I accepted his often repeated words that he would be a stumbling block to the deep state and he’d drain the swamp.

On Monday night, he rewarded the swamp denizens and deep state outliers by nominating one of their own to the Supreme Court.

Here is the back story.

The late Justice Antonin Scalia — my friend during the final 10 years of his life — and his neighbor and colleague Justice Anthony Kennedy often remarked to each other during the Obama years that each would like to leave the Supreme Court upon the election of a Republican president. Scalia’s untimely death in February 2016 denied him that choice, but Kennedy bided his time.

When Trump was elected president, Kennedy told friends that he needed to await Trump’s nominee to replace Scalia to gauge whether the judicially untested Trump could be counted upon to choose a nominee of Kennedy’s liking and Scalia’s standing.

Trump knew Kennedy’s thinking, and that guided him in choosing Neil Gorsuch for Scalia’s seat. Gorsuch believes in the primacy of the individual and natural rights and is generally skeptical of government regulators. He is also a former Kennedy clerk.

So the Gorsuch selection was intended to serve two purposes. The first was to pick a Scalia-like thinker for the court as candidate Trump had promised, and the second was to give Kennedy a comfort level so he could retire and give President Trump a second nominee. It worked.

When Kennedy paid an unprecedented visit to the Oval Office two weeks ago, ostensibly to tell the president of his intention to retire, he also had a secret purpose — to recommend his replacement. The announcement of Kennedy’s departure began a firestorm of lobbying in behalf of four people from a list of 25 potential nominees that Trump had published when searching for Scalia’s replacement.

The idea of a published list is novel. But it cemented loyalty from conservatives to Trump, who, of course, had no track record in evaluating or appointing judicial nominees. The standards used to put names on the list involved examining academic credentials and published works and, with the exception of one person, requiring judicial experience with a traditionalist bent, even if brief.

Social and religious conservatives pushed the president to nominate Judge Amy Coney Barrett, a fiercely Catholic mother of seven and former Notre Dame Law School professor who is a known opponent of abortion. Intellectual conservatives pushed for Judge Raymond Kethledge, a philosopher like Justice Gorsuch who believes in the primacy of the individual and who recognizes natural rights. The president’s sister Judge Maryanne Trump Barry had her brother convinced that her colleague Judge Thomas Hardiman, a blue-collar diamond-in-the-rough conservative, would fulfill his promise to his base.

But at the last minute, a gaggle of Washington lawyers and lobbyists — called the establishment when you agree with them and the swamp when you don’t — persuaded the president to reject his commitment to his sister and nominate Judge Brett Kavanaugh. He is the man Justice Kennedy had asked the president to nominate and is another former Kennedy clerk.

The suspense over all this was palpable earlier this week. The showman in the president beat a drum so effectively last weekend that we all watched with excited pulse rates on Monday night. I was and remain extremely disappointed. Donald Trump — whatever you think of him as a president — has been utterly faithful to his campaign promises in foreign and domestic policy. Until now.

Now he has given us a nominee to the highest court in the land who typifies the culture he railed against when he claimed he’d drain the swamp. This man and this culture accept cutting holes in the Fourth Amendment because they don’t believe that it should protect privacy. This man and this culture accept unlimited spying on innocent Americans by the National Security Agency because they don’t believe that the NSA is subject to the Constitution.

This man and this culture even looked the other way in the face of deep state shenanigans against President Trump himself. This man and this culture accept the federal regulation of health care and its command that everyone buy health insurance, called Obamacare. This man and this culture embrace the Nixonian mantra that if the president does it, it is not illegal.

What happened here?

The Kavanaugh nomination is not a question of his qualifications; it is a question of his values. It is dangerous for judges to embrace values that diminish personal freedom rather than expand it. When they do that, they reveal their view that freedom comes from the government, not from within us. Thomas Jefferson and all the Founding Fathers profoundly rejected the government-as-source-of-freedom argument, but Judge Kavanaugh accepts it.

Jefferson once remarked that unless you pick someone’s pocket or break someone’s leg, no one should care how you exercise your freedom or pursue happiness. I wish the president had nominated a person who believes that, as well. But he didn’t.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Supreme Court 
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The Declaration of Independence — which was signed on July 3, 1776, for public release on July 4 — was Thomas Jefferson’s masterpiece. Jefferson himself wrote much about the declaration in the 50 years that followed.

Not the least of what he wrote offered his view that the declaration and the values that it articulated were truly radical — meaning they reflected 180-degree changes at the very core of societal attitudes in America. The idea that farmers and merchants and lawyers could secede from a kingdom and fight and win a war against the king’s army was the end result of the multigenerational movement that was articulated in the declaration.

The two central values of the declaration are the origins of human liberty and the legitimacy of popular government.

When Jefferson wrote that we are endowed by our Creator with certain inalienable rights, he was referring to the natural law. The natural law teaches that right and wrong can be discerned and truth discovered by the exercise of human reason, independent of any commands from the government. The natural law also teaches that our rights come from our humanity — not from the government — and our humanity is a gift from our Creator.

Even those who question or reject the existence of the Creator — was Jefferson himself among them? — can embrace natural rights, because they can accept that our exercise of human reason leads us all to make similar claims. These claims — free speech, free association, free exercise or non-exercise of religion, self-defense, privacy, and fairness, to name a few — are rights that we all exercise without giving a second thought to the fact that they are natural and come from within us.

The view of the individual as the repository of natural rights was not accepted by any governments in 1776. In fact, all rejected it and used violence to suppress it. To the minds of those in government in the mid-18th century, the king was divine and could do no wrong, and parliament existed not as the people’s representatives but to help the king raise money and to give him a read on the pulse of landowners and nobility.

Jefferson and his colleagues had no difficulty breaking from this type of ancient regime. Unlike the French, who destroyed their monarchy, the American colonists seceded from theirs — and they did so embracing natural rights. Regrettably, they did not recognize natural rights for African slaves or for women. We all know and profoundly lament the sorry history of those errors.

The idea that each human being possesses inherent natural rights by virtue of one’s humanity is not just an academic argument. It has real-life consequences, which Jefferson recognized. Those consequences are implicated when government seeks to curtail rights for what it claims is the protection of another’s individual rights, the common good or the good of the government itself.

Jefferson recognized that you can consent to the curtailment of your rights but you cannot consent to the curtailment of mine. To Jefferson, government can take away your rights without your consent only if you have violated someone else’s rights.

Surrendering rights is also implicated in the second radical idea that underscores the Declaration of Independence. It is the concept that no government is valid unless it enjoys the consent of the governed. This, too, was unheard of in 1776, because British kings did not claim consent of the governed as the basis for legitimacy.

Yet consent of the governed is perfectly consistent with natural law. Under natural law, what is yours is yours and what is mine is mine. If I attempt to take your land or car or cellphone, you can stop me, either directly or through the government we have both consented to. If one of us has not consented to the government’s existence, it can still enforce natural rights as the agent of the person whose rights are being violated — just as it does for bank depositors when it captures a bank robber.

This idea of consent of the governed was a serious issue in the days and years following July 4, 1776, because about one-third of the adults living in the United States in the last quarter of the 18th century remained loyal to the king of England after the Revolution, and they did not consent to the new popular form of government that took the British government’s place. The new government was thrust upon them without their consent.

The last letter Jefferson wrote was to his enemy-turned-friend John Adams, in anticipation of the 50th anniversary of the declaration — a day on which both Jefferson and Adams would die. In that letter, Jefferson argued that the greatest achievement of the declaration was its arousing men to burst free from the chains imposed upon them by superstition and myth by bringing about a recognition of their individual rights and an embrace of self-government.

Today the Jeffersonian ideals of individual natural rights and government’s legitimacy’s being conditioned upon the individual consent of the governed have themselves become myths.

In Jefferson’s day, the voters knew all that the government did, and it knew nothing about them. Today government operates largely in secrecy, and it knows our every move and captures our every communication.

In Jefferson’s day, the government needed the people’s permission to tax and regulate them. Today the people need the government’s permission to do nearly everything.

Do you know anyone who has consented to the government? Do you know anyone who could avoid the government by not giving consent? Do you consent to the government by voting? Do you consent to the government if it is run by those you voted against? Did you consent to a government that steals liberty and property and prosperity and gives them away?

Happy Fourth of July.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory 
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Last weekend, President Donald Trump argued that those foreigners who enter the United States unlawfully should simply be taken to the border, escorted across it and let go. According to the president, this would save precious government resources, avoid the business of separating children from their parents and free up the Border Patrol and other federal assets to do their jobs.

He is undoubtedly correct on the beneficial consequences to the government of forced deportation without due process. Yet deportation without a trial is profoundly unconstitutional.
Here is the back story.

The nation has been torn apart by the images of immigrant children — some are babies — being forcibly separated from their parents by U.S. immigration authorities, who were getting orders from the Trump administration, which was misreading federal law so as to require the separation.

The government has essentially taken the position that those physically present in the U.S. illegally have few constitutional rights and thus family members who arrive together can be separated, no matter the psychological or physical consequences. This forced separation is not novel to the Trump administration, but its massive scale in the present toxic national political environment has painfully brought it to our collective conscience.

The forced separation by the government of children from their parents without a trial when neither is a danger to the other is child abuse or kidnapping or both. When federal authorities engage in such morally repellant behavior — whether as a negotiating technique to bring the president’s political adversaries to the bargaining table or to coerce the immigrants to go home — it exposes them to state prosecution because of the acute and long-term harm they have caused to the children.

After a tidal wave of public opinion against this practice finally resonated in the White House, President Trump signed an executive order last week that permitted, but did not require, immigration authorities to reunite the children and their parents. Then, in the wake of a slow reunification — some of the children had been sent from Texas to New York while their parents were kept in Texas — the president uttered his exasperation regarding due process.

If he had asked his lawyers first, he would have learned that there is no legal basis for his official antipathy to due process.

The president took an oath to preserve, protect and defend the Constitution. The Fifth Amendment to the Constitution provides in relevant part that “no person shall be … deprived of life, liberty, or property, without due process of law.” This is the so-called Due Process Clause, and it essentially prevents all governments from impairing the life, liberty or property of any human being on American-controlled soil without a fair trial.

Because the Supreme Court has ruled that there are no word choice errors in the Constitution and the words of its text mean what they say, the Framers must have carefully and intentionally chosen to protect every person, not just every citizen. “Person,” in this context, has been interpreted to mean any human being on American-controlled soil against whom the American government is proceeding, irrespective of how the person got there.

This protection is so profound and universally understood that when the George W. Bush administration rounded up what it thought were the collaborators, enablers, supporters and relatives of the 9/11 murderers whom it thought were here unlawfully, it recognized their due process rights and afforded them trials before deportation. The government actually lost many of those cases, and innocents were not deported.

Hundreds of books and law review articles have been written about due process. Here we are addressing procedural due process, which has three components. The first is notice. The person against whom the government is proceeding is entitled to a written statement specifically articulating his alleged wrongful behavior sufficiently prior to trial. Once notice is given, the government is hard-pressed to alter the charges.

The second component of due process is the requirement of the government to prove its charges against the person to whom it has given notice before a neutral judicial official, not one who works for the entity that is proceeding against him.

The third component of due process requires that the entire proceeding against the person be fair, that it appear to be fair and that the outcome be rational. The judge can decide whom to believe, but she cannot, for example, decide that 2+2=22, as that would be irrational. Fairness also includes the right to an appeal.

The dangers of rejecting the plain meaning of the Constitution (“person”) and the dangers of taking a class of people and refusing to recognize their fundamental constitutional rights because of an immutable characteristic of birth (alienage) cannot be overstated.

President Trump is my friend. I like him dearly and wish him well and want him to succeed. But he is profoundly wrong here. He cannot lawfully or morally reject his oath to uphold the Constitution. Denying due process on the basis of alienage is tantamount to denying the personhood of undocumented foreigners as the U.S. once did to slaves and does today to babies in the womb. And that denial is a slippery slope, at the bottom of which lie tyranny and misery.

Former Supreme Court Justice Felix Frankfurter warned against the denial of due process when he remarked that the history of human liberty has largely been the history of the observance of procedural safeguards by the government. The whole reason we thrive here and the reason others want to come here is that our Constitution guarantees respect for humans’ personhood, which has spawned freedom and prosperity. If the due process guarantee were to go by the wayside, all other liberties would soon follow.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
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When President Donald Trump appointed Atlanta lawyer Christopher Wray to succeed James Comey as the director of the FBI, my initial reaction was not positive. Wray is a veteran of the Department of Justice and is part of that good-old-boy DOJ network that knows how to protect its own. Indeed, when then-New Jersey Gov. Chris Christie, a former U.S. attorney, needed a good criminal defense lawyer — whose millions in fees were paid by New Jersey taxpayers — he hired Wray.

Christie was never indicted in the Bridgegate scandal, but defense counsel for those who were sought Christie’s cellphone to demonstrate to jurors the governor’s involvement in the plot to shut down lanes near the George Washington Bridge for political retaliation. Christie claimed that he gave his phone to federal prosecutors, but they told the court that they did not have the phone. Where was it? In a safe of the Atlanta law firm that employed Wray.

The FBI director-to-be, sitting in his office in Atlanta, failed to provide evidence he had that he knew a federal court in Newark was seeking. This sordid episode was not dwelled upon during Wray’s confirmation hearings, at the end of which he was confirmed to a 10-year term running the FBI. So Trump’s search for an outsider who would change the Comey-led culture of political justice and run the nation’s premier law enforcement agency according to the rule of law turned up the ultimate insider.

Earlier this week, Wray testified before the Senate Judiciary Committee on the behavior of FBI agents — including the former director and former deputy director — during the criminal investigation of former Secretary of State Hillary Clinton. Wray had to thread a small needle.

On the one hand, the FBI is an investigative entity only. It does not decide whom or what to charge; it merely reports its findings to federal prosecutors in conjunction with their presentation of evidence to grand juries. As such, the FBI is subject to the DOJ prosecutors for whom it works, and the DOJ, of course, works for the president.

On the other hand, because both the DOJ and the FBI are guided by the ethical rules that govern lawyers and by the values of the rule of law implicit in American culture and recognized by the courts, the DOJ enjoys some independence from the president, and the FBI enjoys some independence from the DOJ. Principles such as equal protection under the law and due process of law protect life, liberty and property and trump instructions of the president to the DOJ and instructions of the DOJ to the FBI. Stated differently, the FBI must go where the evidence of crime leads it, and the DOJ must prosecute when the evidence is lawfully sufficient, no matter the subject.

This obviously becomes complex and treacherous when the president is the subject of the FBI’s investigation, because one of the rule-of-law principles is that no one can be the judge or prosecutor in his own case. And it was in that context that Director Wray testified earlier this week. His testimony was largely about the response of the present-day FBI to the political excesses of the Comey-led FBI as articulated in a 568-page report issued by the inspector general of the DOJ.
That report found that there was political bias at the FBI and the DOJ in favor of Clinton while she was the subject of a criminal investigation and that there was political prejudice against Trump at the same time. But it also found that the bias and prejudice were not the deciding factors in the ill-advised decision by Comey to announce that Clinton would not be charged and then to recount all the damning evidence the FBI had amassed against her or in his decision to reopen and then reclose the investigation.

In Wray’s testimony, I detected not a political defense of the FBI but rather a careful assessment of the constitutional relationship between Congress and the FBI that demonstrated a grasp of nuance and a defense of the rule of law.
Wray has been battling the House Intelligence Committee over its demands to get a peek at a portion of special counsel Robert Mueller’s files on the president. The committee has threatened Wray and his boss, Deputy Attorney General Rod Rosenstein, with censure, contempt and even impeachment if Wray fails to deliver the files. Wray’s message to the committee, uttered in his Senate testimony, was that the FBI will follow the law and not surrender privileged information.
A privilege is the ability of the entity that enjoys it to prevent the revelation of information that the privilege covers. The attorney-client and priest-penitent privileges, for example, permit the client or the penitent to prevent the lawyer or the priest from revealing their communications. Wray knows that law enforcement, too, enjoys privileges, such as the obligation to keep matters that have been presented to a grand jury, the thoughts and impressions and strategies of investigators and prosecutors, and information developed from confidential sources secret.

By signaling that he will honor those privileges in the investigation of President Trump, Wray is upholding the rule of law. Were he not to do this, he’d be spilling the contents of a criminal file to the political allies of the subject of the file — a spill that the law would not condone because it would put the president above the law.

In defending these rule-of-law privileges, Director Wray is upholding the independence of the FBI against an unforgiving political onslaught orchestrated by the president’s allies. I hope this is resolved in a court of law and not in the court of public opinion. Public opinion is a reed that moves with the wind. The rule of law is a rock that keeps us free.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, FBI 
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Amid all the happy hoopla over President Donald Trump’s trip to Singapore, where he began the process for what he hopes will be the normalization of relations between the United States and North Korea and the denuclearization of the Korean Peninsula, has come an effort by the House Intelligence Committee to interfere with the criminal investigation of the president.

The committee’s chairman, Devin Nunes, a Republican from California, and the Republican majority on the committee have demanded that the Department of Justice turn over documents pertaining to the origins of the investigation of President Trump by special counsel Robert Mueller.

And Nunes has threatened Mueller’s superior, Deputy Attorney General Rod Rosenstein, with censure, contempt and even impeachment if he fails to comply. Can Congress interfere in an ongoing federal criminal investigation? Can it get its eyes on law enforcement’s active files? In a word: No.

Here is the back story.

In the pre-9/11 era, when the FBI and the DOJ devoted their work primarily to investigating criminal activity, they both answered not only to the president but also to the House and Senate Judiciary committees. This long-standing relationship came about by way of a check on the exercise of prosecutorial power by the DOJ and the FBI.

These congressional committees approve the budget for law enforcement, the argument went, and as watchdogs, so to speak, they are entitled to know how the taxpayers’ money — and money borrowed in the taxpayers’ name — is being spent.

The relationship between the congressional committees on one hand and federal law enforcement on the other has been a give-and-take, push-me-pull-you relationship that generally led to compromise between Congress and federal law enforcement.

After 9/11, Congress passed the Patriot Act, which, in addition to authorizing FBI agents to write their own search warrants for all sorts of custodians of records — legal, medical, postal and banking enterprises, supermarkets, and libraries, to name a few — gave the FBI a domestic intelligence mission not unlike that of the National Security Agency, which is America’s domestic spying apparatus.

The intelligence mission enabled the FBI to utilize new tools for law enforcement, under the guise of intelligence gathering. Stated differently, by pretending to be looking for spies, the FBI found crooks. Because the legal threshold for spying for intelligence purposes is far lower than the legal threshold for obtaining a traditional search warrant, FBI agents often took the easier route.

But the FBI’s spying mission also subjected it to the scrutiny of two additional congressional committees, one in the House and one in the Senate. This cross-pollination of law enforcement and intelligence gathering — this mixture of two distinct roles, one traditional for the FBI and the other novel to it, one clearly regulated by the Constitution and the other purporting to be outside of it — tempted not only FBI agents to use the tools of spy-craft for law enforcement (even though it’s prohibited by the Fourth Amendment) but also Congress.

Now back to Rep. Nunes and the House Intelligence Committee.

The Republicans on that committee are determined to use their regulatory powers over federal intelligence gathering to investigate federal law enforcement. They are doing this because they claim to smell a rat in the origins of the special counsel investigation and they want to get to the bottom of it. In order to get to the bottom of it, they have demanded to see documents in the custody of special counsel Mueller to determine whether there was sufficient probable cause to commence the criminal investigation of Trump back in November 2016.

But it is not the role of Congress to do this in the midst of a criminal investigation, and it is not the role of a congressional intelligence committee to scrutinize law enforcement.

There are two dangers to the rule of law here. The first is that members of this committee could use their security clearances to examine classified materials and then use what they have seen for a political narrative. They cannot lawfully, except on the floor of Congress, publicly reveal classified documents they have seen, but they can (and they have done so in the past) summarize them publicly — and with a political spin.

That endangers the sources of criminal investigators, many of whom are people who communicate with investigators at great personal risk and to whom confidentiality has been promised. That confidentiality is recognized in the law as the informant’s privilege, and it keeps confidential criminal matters from public and peering congressional eyes until the investigation is concluded.

The second and equally harmful danger is that members of the committee could leak what they have seen. To prevent this, prosecutors have a privilege to keep their files secret until they charge or exonerate their targets or subjects.

Under the Constitution, we enjoy the separation of powers. Congress writes the laws; the executive branch enforces them; and the courts interpret them. Congress can no more constitutionally interfere with ongoing law enforcement for political purposes than the DOJ can interfere with the passage of congressional legislation that it doesn’t like.

The down and dirty fear that the DOJ and the FBI have is that revealing the contents of the criminal file on the president to his political allies in Congress in the midst of an investigation of him would be a dangerous precedent, one that would pollute the investigation and give present and future politically powerful potential defendants advantages that no one else has.

That disparate treatment of the president as defendant strikes at the heart of the rule of law. And the rule of law is what protects us from politicians who can’t restrain themselves from violating their oath to uphold the Constitution.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump 
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This past weekend, President Donald Trump and the most visible member of his legal team, former New York Mayor Rudolph Giuliani, fired up their campaign against special counsel Robert Mueller. They attacked people at the Department of Justice whom Trump appointed. They smeared career DOJ lawyers and FBI agents by offering allegations without showing any supporting evidence. And they purported to challenge the legitimacy of Mueller’s office itself.

The legitimacy question is an opinion Giuliani offered six times to my colleague Bill Hemmer on “Fox News Sunday.” Surely, Giuliani is entitled to any opinion on any matter, but he must know that his illegitimacy opinion is baseless.

Mueller’s work, though a constant irritant to Trump, is quite legitimate. It is authorized by the Federal Rules of Criminal Procedure, which were approved by Congress. It was created by Deputy Attorney General Rod Rosenstein, a Trump appointee. It has been ratified by six different federal judges.

The president himself has even accepted the legitimacy of some of Mueller’s work. Trump unilaterally imposed financial sanctions on the Russian intelligence agents whom one of Mueller’s grand juries indicted for computer hacking and other crimes allegedly committed during the 2016 election.

The recent claim by Trump and Giuliani that the investigatory process is rigged against Trump betrays insincerity by Giuliani and an effort to gin up the base by Trump. From his years as a federal prosecutor, Giuliani knows the prosecutorial mindset. It is not one of patiently examining law and facts to ascertain guilt or innocence. That is the judicial mindset.

Prosecutors target folks they believe are guilty and then look for enough lawfully acquired evidence to prove guilt. That is a legitimate use of government assets — a use geared to charging defendants, not evaluating their moral worth for high office.

One of the tools available to prosecutors — and often used in white-collar cases — is to dispatch a friendly person to chat with those at the periphery of an investigation to see whether any spoken words can lead prosecutors to credible evidence. This process of using an informant to gather evidence is so stunningly normal that it ought not even be of note. That’s often how criminal investigations of nonviolent crimes begin — with conversations between intermediaries who spill the beans.

One of the most successful practitioners of this technique was a U.S. attorney in Manhattan named Rudy Giuliani. Today, as the spokesman for Trump’s defense team, Giuliani is condemning this process he once perfected — a process he knows to be lawful — and he is doing this by calling the intermediary not an informant but a spy. Calling an informant a spy depends on where you sit. When he is your guy, he’s an informant. When he is the other side’s guy, he’s a spy.

The Giuliani claim — unsupported by any public evidence — is that the Obama administration sent an unnamed FBI undercover agent to inveigle the inner circle of the Trump campaign. If this is true and if it was done without a search warrant, it was a monumental violation of the civil rights of Trump campaign officials, including those of the man who would become the president. But Giuliani has shown no evidence for this.

How did we get here?

All of this spying and informing — this mishmash of law enforcement and intelligence gathering — is today the byproduct of the federal government’s post-9/11 mentality. Before 9/11, the CIA gathered intelligence from outside the U.S., and the National Security Agency gathered intelligence from inside the U.S. The FBI constitutionally, for the most part, gathered evidence of crimes.

Pre-9/11, the intelligence community and the law enforcement community were prohibited from communicating with each other, for well-grounded historical and practical reasons. Because the intelligence community uses unconstitutional and often unlawful means to acquire data and because law enforcement must use constitutional and lawful means to acquire evidence for a court not to suppress it, they did not exchange notes.

But pursuant to the commands of the wildly unconstitutional Patriot Act (six federal judges have held portions of it unconstitutional), the intelligence community and law enforcement began blending their work.

FBI agents soon realized that by portraying their work as intelligence gathering and not emphasizing the law enforcement aspects, they could go to a different court — the FISA court, with its unconstitutionally low bar for obtaining a search warrant (namely, probable cause of speaking to a foreign person) — to get search warrants. This proved far easier than obtaining a constitutional search warrant, which requires probable cause of a crime. An easier warrant means less work. That was a temptation too great to resist.

The intelligence community soon realized it could share with law enforcement what it found by spying on Americans, in return for law enforcement’s looking the other way at the lawlessness of domestic spying. All of this produced a cowboy culture of utter disregard for constitutional norms in much of federal law enforcement and domestic intelligence gathering.

This is a form of corruption — the knowing governmental violation of constitutional norms and the intentional toleration of it, set below the radar.

Now back to Trump and Giuliani. If they are successful, they will have assaulted the rule of law by persuading the public to accept innuendo and known untruths. I am often on the side of the individual against the government, but if legitimate law enforcement has been or is undermined for political purposes, whether by President Barack Obama in 2016 or by President Trump in 2018, all of us will suffer from more corruption.

Giuliani’s job is not to be Trump’s lawyer; rather, it is to effect public sentiment. For the government, as Abraham Lincoln once said, with public sentiment, nothing can fail; without it, nothing can succeed. Trump and Giuliani understand that better than they understand the rule of law.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump 
Andrew Napolitano
About Andrew Napolitano

Judge Andrew P. Napolitano is a graduate of Princeton University and the University of Notre Dame Law School. He is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995, when he presided over more than 150 jury trials and thousands of motions, sentencings, and hearings. Judge Napolitano taught constitutional law and jurisprudence at Delaware Law School for two years and at Seton Hall Law School for 11 years. He was often chosen by the students as their most outstanding professor. He returned to private practice in 1995, and began television work in the same year.

As Fox News’ Senior Judicial Analyst since 1998, Judge Napolitano broadcasts nationwide on the Fox News Channel throughout the day, Monday through Friday. He is nationally known for watching and reporting on the government as it takes liberty and property.

Judge Napolitano lectures nationally on the U.S. Constitution, the rule of law, civil liberties in wartime, and human freedom. He has been published in the New York Times, the Wall Street Journal, the Los Angeles Times, and numerous other publications. His weekly newspaper column is seen by millions every week.

The Judge is the author of seven books on the U.S. Constitution, two of which have been New York Times best sellers. His most recent book is Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.


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