The Unz Review - Mobile
A Collection of Interesting, Important, and Controversial Perspectives Largely Excluded from the American Mainstream Media
 
Email This Page to Someone

 Remember My Information



=>
 TeasersAndrew Napolitano Blogview

Bookmark Toggle AllToCAdd to LibraryRemove from Library • BShow CommentNext New CommentNext New Reply
🔊 Listen RSS

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 
🔊 Listen RSS

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 
🔊 Listen RSS

This past weekend, President Donald Trump suggested that his presidential campaign may have been the victim of spies or moles who were FBI informants or undercover agents. He demanded an investigation to get to the bottom of the matter.
At the same time that the president was fuming over this, Republican congressional leaders were fuming about the reluctance of senior officials at the Department of Justice and the FBI to turn over documents that might reveal political origins of the current criminal investigation of the president by special counsel Robert Mueller.

Can the president intercede in a federal criminal investigation of which he himself is a subject? Can Congress intercede in a DOJ criminal investigation? Here is the back story.

Mueller was named special counsel so he could investigate serious and demonstrable evidence of Russian government interference in the 2016 presidential election. Because the Trump campaign met with Russian intelligence officials offering campaign assistance, implicit in that investigation is an inquiry into whether the Trump campaign invited foreign interference and agreed to accept or facilitate it.

Mueller is seeking to determine whether there was an agreement between the Trump campaign and any foreign person, entity or government to receive anything of value for the campaign. Such an agreement plus a material step in furtherance of it taken by any of those who joined the agreement would itself constitute the crime of conspiracy, even if the agreed-upon thing of value never arrived.

In the course of examining evidence for the existence of this alleged conspiracy — which Trump has forcefully denied many times — Mueller’s prosecutors and FBI agents have come upon evidence of other crimes. They have obtained 19 indictments — some for financial crimes, some for lying to FBI agents and some for foreign interference in the election — and four guilty pleas for lying, in which those who pleaded guilty agreed to assist the government.

Nine of the indictments are against Russian intelligence agents, whom the president himself promptly sanctioned by barring their travel here and their use of American banks and commercial enterprises, even though he has called Mueller’s investigation a witch hunt.

Mueller has also come upon evidence of obstruction of justice by the president while in office and financial crimes prior to entering office, all of which Trump has denied. Obstruction of justice consists of interfering with a judicial proceeding — such as a grand jury’s hearing evidence — for a corrupt purpose.

Thus, if Trump fired FBI Director James Comey because he didn’t trust him or because he wanted his own person in that job, that was his presidential prerogative, but Trump’s purpose was corrupt if he fired Comey because Comey would not deny that the president was the subject of a criminal investigation — a basis for firing surprisingly offered publicly by one of the president’s own lawyers.

The potential financial crimes appear to be in the areas of bank fraud — making material misrepresentations to banks to obtain loans — and money laundering, or the passage of ill-gotten gains through numerous bank accounts so as to make the gains appear lawful. These, too, Trump has denied.

It seems that the deeper Mueller and his team dig the more they find. As lawyers and as federal prosecutors, Mueller’s team members have ethical obligations to uncover whatever evidence of crime they come upon and, when professionally feasible and legally appropriate, either prosecute or pass the evidence on to other federal prosecutors, as they did in the case of evidence of fraud against Michael Cohen, a former confidant and lawyer for Trump before he was president.

Now, back to Trump’s eruption about FBI spies or moles.

The president cannot interfere with criminal investigations against himself without running the risk of additional charges of obstruction of justice — interference with a judicial process (the gathering of evidence and its presentation to a grand jury) for a corrupt purpose (impeding his own prosecution or impeachment). Nor can members of Congress see whatever they want in the midst of a criminal investigation, particularly if they might share whatever they see with the person being investigated.

Prosecutors have a privilege to keep their files secret until they reach the time that the law provides for them to go public. Because Mueller is faced with the legal equivalent of assembling a 10,000-piece jigsaw puzzle, he is not yet ready to show his cards. If his cards contain materials from confidential sources — people whose identities he promised not to reveal — or if his cards contain evidence he presented to a grand jury, he may not lawfully reveal what he has until it is time to exonerate the president, indict him or present a report to Mueller’s DOJ superiors that is intended for the House of Representatives.

Can the president investigate his investigators?

Yes — but not until the investigation of him is completed. That’s because no one can fruitfully examine the legitimacy of the origins of the case against Trump without knowing the evidence and the charges. Trump’s allegations are of extreme scandal — the use of FBI assets by the Obama administration to impede his presidential campaign. Yet if he is exonerated, those allegations will lose their sting. If he is charged with crimes or impeachable offenses that do not have their origins in politically charged spying, then his allegations will be moot.

But if he were to force the DOJ to turn over raw investigative files now to politicians who want to help him, he might very well be impeding the criminal case against him. That would be profoundly threatening to the rule of law, for it provides that no man can be the prosecutor or the judge in his own case. Even Trump’s lawyers acknowledge that he could not lawfully do that.

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

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump 
🔊 Listen RSS

In 1992, Congress passed a statute authored by then-Sen. Bill Bradley of New Jersey, who was a former Princeton University and New York Knicks basketball superstar, prohibiting the states from authorizing sports betting. At that time, gambling in Atlantic City was flourishing, and notwithstanding one of its own senators’ efforts to keep gambling away from competitive sports, the state of New Jersey wanted to duplicate Las Vegas’ success with sports betting.

When Bradley’s legislation grandfathered the state of Nevada, legislators in New Jersey came up with an idea to get around the federal legislation that would permit Atlantic City casinos to compete with those in Las Vegas by repealing all laws about sports betting, thereby escaping the federal prohibition on “authorizing” sports betting. It would be up to the casinos to set up their own betting parlors for college and professional sports, and in so doing, they could increase their own bottom lines and thus the state’s tax revenues.

When major professional sports leagues and the NCAA challenged this, a federal district court in Newark read the ‘thou shalt not authorize’ language to mean ‘thou shalt not permit under any circumstances.’ That ruling was upheld by a federal appeals court in Philadelphia, and New Jersey appealed its case to the U.S. Supreme Court, which ruled in its favor earlier this week.

Get ready to call your bookie.

The Supreme Court decision reinforces the anti-commandeering jurisprudence of the 10th Amendment, which was dormant from the New Deal era to the mid-1990s. Recall that the states formed the federal government, not the other way around. When they did so, they delegated certain areas of governmental authority to the feds, and as new states were added to the Union, they did the same.

The 10th Amendment is the constitutional recognition of the truism that the legislative powers that the states did not delegate to Congress they retained for themselves.

The anti-commandeering jurisprudence prohibits Congress from telling the states how to govern or legislate or spend their tax dollars in any governmental areas not delegated to the Congress. This congressional practice was condemned in a case called Printz v. United States, in which Congress had ordered state law enforcement officials to establish certain gun registration protocols consistent with congressional standards and made state legislatures pay for the enforcement of the protocols.

The Supreme Court, through the late Justice Antonin Scalia, characterized this federal legislation as “commandeering” — taking the discretion away from — state officials and legislatures. The Supreme Court’s sports gambling decision this week followed the rationale of the Printz case and characterized the federal legislation that prohibited the states from permitting sports gambling as commandeering their legislative processes.

The reason that federal commandeering of state legislative processes is unconstitutional — Justice Samuel Alito’s sports betting opinion likened commandeering to having a federal agent on the floor of each state legislature give a thumbs-up or -down to proposed legislation — is that it flies in the face of the Guarantee Clause of the Constitution.

That clause guarantees a representative form of government in each state. A representative form of government requires that the representatives in the government be free to vote their consciences and not be prohibited or restrained from doing so because of a federal command.

Did Bill Bradley make a mistake?

I am a longtime fan and friend of Sen. Bradley’s, notwithstanding our general ideological differences over the constitutional role of government in our lives. Bradley is smart, fair and open-minded, and I miss him in the public forum. Yet he ought to have known that the legislation he authored was unconstitutional, and he ought to have known that Congress could have outlawed sports betting had it chosen to do so.

Had Congress made sports betting criminal — which it has not yet done — the sports gambling case this week would have been moot. Congress undoubtedly has the power under the Commerce Clause to prohibit any item from interstate commerce that it wishes, and it could have done so to communications that further sports betting. But of course, federal laws cost the feds money to enforce, and Congress did not want to foot that bill — hence Bradley’s scheme of transferring the cost of preventing sports betting to the states.

If Congress had outlawed sports betting, such a law would not have implicated the anti-commandeering jurisprudence because it would have been a restraint on individual personal behavior and not a restraint on the discretion of state law enforcement or elected state representatives.

What are the unintended consequences of this ruling?

All of this bodes well for the independence of the states in the areas where they are free to govern. There, they can be laboratories of democracy, dependent upon the public sentiment of their voters and the freely exercised consciences of their state representatives.

In an odd couplet, however, it also helps the sanctuary city movement, insofar as that movement purports to require that state and local law enforcement agencies not actively enforce federal immigration laws or policies because compelling them to do so would violate anti-commandeering jurisprudence. The commandeering would consist of removing the discretion of state and local law enforcement as to the disposition of law enforcement resources and the discretion of state legislatures as to how state tax revenue is spent.

And all of this underscores the wisdom of the Framers, who created a federal union that, even after the Civil War, is still subject to the sovereignty of the states. The beauty of the Union is that no two states are alike and we can all get ourselves to states where the laws are more to our liking. Ronald Reagan once whimsically captured these constitutional values when he argued that only in America can you vote with your feet.

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

 
• Category: Ideology • Tags: Gambling, Sports 
🔊 Listen

Late last week, a federal judge in Alexandria, Virginia, questioned the authority of special counsel Robert Mueller to seek an indictment and pursue the prosecution of former Trump campaign manager Paul Manafort for alleged financial crimes that, according to the indictment, began and ended well before Donald Trump ran for president. Mueller was appointed special counsel by Deputy Attorney General Rod Rosenstein because of allegations that Rosenstein accepted of a conspiracy by members of the Trump campaign to accept assistance from a foreign person, entity or government, which is a felony.

The application by Manafort’s lawyers before Judge T.S. Ellis III was actually a motion to dismiss the indictment against Manafort for want of jurisdiction. Stated differently, Manafort argued that Mueller exceeded the authority granted to him by the Department of Justice and thus he has no legal ability — jurisdiction — to prosecute Manafort. During the course of the oral argument on this motion, the judge opined that in his view, Mueller is only prosecuting Manafort for bank and tax fraud to squeeze him to testify against President Trump on matters that might be impeachable.

The judge’s comments as to Mueller’s motivation are dicta. Dicta are the unsolicited, unnecessary and often personal opinions of the court on matters not strictly before the court and not integral to the court’s ruling. Stated differently, there is an abundance of speculation in the media but zero evidence in the record before Judge Ellis — zero — on which he could base his opinion; and his opinion of the prosecutor’s motivation is irrelevant. It made national headlines because Trump supporters agree with it, and it is probably accurate — but it is legally meaningless.

Even if Judge Ellis were to dismiss the indictment against Manafort for want of Mueller’s jurisdiction, the dismissal would mean only that Mueller cannot prosecute Manafort, not that Manafort cannot be prosecuted on these charges.
If the present indictment were to be dismissed, the local federal prosecutors in Alexandria would present the Mueller-gathered evidence against Manafort to another grand jury and ask it to issue a new indictment that makes the identical charges as those now pending. Then they would prosecute Manafort on the same charges that Mueller originally brought. The financial crimes charged, though unrelated to Mueller’s initial duty of looking for a conspiracy between the Trump campaign and foreigners, are real, and no federal prosecutors with jurisdiction could ethically overlook them.

Judge Ellis’ actual ruling — clouded by the fog of his dicta — gave Mueller two weeks to demonstrate his lawful jurisdiction. He can easily do that with a letter from Rosenstein. The letter can even be retroactive. Thus, all this focus on Judge Ellis’ personal opinion of Mueller’s motivation is much ado about national politics and has little to do with the rule of law. Who cares what a judge thinks about the motivations of the prosecutors?

The practice of indicting a person for a matter utterly unrelated to the core of the government’s investigation in order to turn the indicted person into a government witness, though often repellant, is commonplace and has received approval by numerous Supreme Court opinions. Clearly, obtaining a guilty plea from retired Lt. Gen. Michael Flynn, the president’s former national security adviser, for lying to FBI agents about the existence of a lawful telephone conversation and obtaining a guilty plea from Rick Gates, Manafort’s former business partner and deputy Trump campaign manager, for lying about who said what at a lawful meeting are parts of a plan to get these folks to give evidence or testimony about the president that prosecutors want to hear.

I have characterized this prosecutorial behavior as extortion or bribery, but I am in a small minority in the legal and judicial communities. The courts have made clear that prosecutors can nullify prison exposure by reducing charges to induce the testimony they want from a witness. Yet if defense counsel gave the same witness so much as a lollipop to shade his testimony, both would be indicted for bribery.

All this leads to the question: How independent are these prosecutors? The modern, post-Nixon Department of Justice has a little bit of unaccountability intentionally built into it based on natural law principles of right and wrong and on fear of an imperial presidency. President Richard Nixon believed he could do as he pleased with his DOJ — and even boasted that if he did something, by definition it was not unlawful.

But prosecutors have ethical and moral obligations to prosecute crimes, and those duties transcend politics. Suppose President Trump told prosecutors not to prosecute his former friend Harvey Weinstein or his former lawyer Michael Cohen? I expect they would rightly ignore him.

I know this argument offends the belief of many of my colleagues that the Constitution gives the president sole and total command over all behavior in the executive branch of the federal government. But the natural law is superior to the Constitution and superior to the government.

The natural law teaches that through the exercise of reason, we know in our hearts what is right and what is wrong. Some things are right no matter what the government says, and some things are wrong no matter what the government says. The limited quasi-independence of the modern Department of Justice, born in the ashes of a presidency that publicly proclaimed that it could do no wrong, is a hallmark to these principles.

I offer these arguments because it now appears that the feared clash between President Trump and special counsel Mueller will soon come to a head, and one can only hope that the rule of law will prevail. But the rule of law is only a safeguard of our liberties when the people in whose hands we repose it for safekeeping are faithful to it though, in the motto of the DOJ, the heavens fall.

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

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump 
🔊 Listen RSS

In a startling revelation earlier this week, The New York Times published what it claims are 49 questions that special counsel Robert Mueller sent to lawyers for President Donald Trump. The questions are apparently a road map of inquiry that Mueller and his prosecutors and FBI agents plan to put to the president if the president agrees to sit down for an interview with them.

I have been arguing for months that the president should not agree to an interview with Mueller. My reasons are fairly boilerplate: It is nearly impossible to talk prosecutors who are determined to seek an indictment into changing their minds. As well, the person being interviewed cannot possibly know as much about the case as the team doing the interview, and he will be prone to error.

In the interview environment, one small lie can result in one big headache of an indictment, even if the lie is about an extraneous matter. When federal prosecutors question a potential defendant, who appears voluntarily and is not under oath, the questioners can lie to the person being interviewed, but he cannot lie to them without risk of indictment. Just ask Martha Stewart. This is exquisitely unfair, but it has been federal law for generations.

The Supreme Court has ruled that federal prosecutors and FBI agents can use trickery, deceptions and outright falsehoods — even disguises, verbal traps and fraud — to help them extract information from a witness or person they are investigating. Given the president’s well-known propensity to talk at length on many disjointed matters and to think both aloud and unfiltered — witness his 30-minute unannounced telephone interview on live cable television with my colleagues on “Fox & Friends” last week — there is a very serious danger that he would contradict himself and even contradict facts for which the special counsel has hard evidence.

Donald Trump is the subject of a criminal investigation. When prosecutors interview a person they are investigating, it is to help the investigation, not the subject of it.

As if all of this were not enough to dissuade a self-confident Trump from sitting down with an all-knowing Mueller and his crew, now come the 49 questions Mueller has told Trump’s lawyers he wants to ask the president. Though many of these at first blush appear not to challenge the president’s memory or command of facts, consider a deeper analysis.

There are two species of questions here. One set of questions is intended to get the president off on a disjointed monologue to see whether he — as he did on “Fox & Friends” — will admit to something without actually being accused or even asked about it. The others are questions to which Mueller already knows the answers and for which he has irrefutable hard evidence — and the quest is to see whether the president will be truthful.

As well, both types of questions are mere starting points — intended to lull Trump into a comfortable but false sense of security — which would then be followed with curveballs he would have great difficulty trying to hit.

One of Mueller’s questions is profound, and I have not seen anything like it in all the literature and legal arguments preceding the Times’ revelation this week: “What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?”

Prosecutors need a factual or good-faith basis to trigger their questions. This question goes to the heart of the so-called collusion issue. I say “so-called” because “collusion” is a media and a political word; it does not describe anything in the law. What Mueller is looking for is a conspiracy, which is the easiest crime for prosecutors to prove because the crime need not have been successful. The late Justice Robert Jackson, himself a former U.S. attorney general, famously called conspiracy prosecutors’ favorite crime.

The essence of conspiracy is an agreement — here, an agreement to accept campaign assistance from a foreign person, entity or government, which is illegal, even if the assistance never arrived. The essence of the crime is the agreement, not the receipt of something of value. The conspirators need not have met together or even be known to each other, providing at least one of them took at least one material step — such as a phone call or a meeting with Russians offering help — in furtherance of the agreement.

If there is truth underlying this question — if Mueller has hard evidence that the true answer is “yes” — it could only have come to Mueller from Rick Gates, Manafort’s former business partner and co-defendant and now Mueller’s star witness. Gates could have told Mueller in return for Mueller’s dropping charges against him that Manafort reached out to the Russians, in which case Mueller would want to test Trump’s knowledge, understanding and truthfulness on this white-hot issue.

If Trump were to answer “no” and Gates told the grand jury that Trump did know of this, Mueller could claim Trump lied and ask the same grand jury to indict Trump for that. If Trump were to answer “yes,” that would be the end of his presidency. If he were to give a rambling non-answer, Mueller would make the most of it.

Are prosecutors fair? Many are, but their common view is that they need not always be fair because they are after bad guys who don’t play by the rules. To the prosecutorial mind, it is for judges and juries to be fair.

What should Trump do? He should go about the business of being president. He should do what is most difficult for him: stay silent. Don’t trust a man who owns a grand jury. Don’t help him undo your presidency.

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

 
• Category: Ideology • Tags: Donald Trump 
🔊 Listen RSS

A popular way to begin the first day of class in constitutional law in many American law schools is to ask the students what sets the U.S. Constitution apart from all others. Usually, they answer that it’s the clauses that guarantee the freedom of speech, privacy and due process.

Yes, each of those guarantees — if upheld — is vital to restraining government, but the overarching and most important unique aspect of the Constitution is the separation of powers. The constitutions of many totalitarian countries pay lip service to free speech, privacy and due process, but none has the strict separation of powers that the U.S. does.

Under our Constitution, the Congress writes the laws, the president enforces them and the courts interpret them; and those powers and functions may not constitutionally be mixed or exchanged. The Congress also declares war. The president also wages war. The courts also invalidate the acts of the other two branches when they exceed their constitutional powers.

The Supreme Court has ruled that the separation of powers is integral to the Constitution not to preserve the prerogatives of each branch of government but to divide governmental powers among the branches so as to keep power diffused — and thereby limited and protective of personal freedom.

James Madison, who wrote the Constitution, wanted not only this diffusion by separation but also tension — even jealousy — among the branches so as to keep each in check.

Thus, even if one branch of government consented to ceding an essential power to another branch, such a giveaway would be unconstitutional, the Supreme Court has ruled, because the core functions of each branch of the federal government may not be delegated away to either of the other two without violating the separation of powers.

I am writing about this not as a history or constitutional law mini-lesson but rather because it’s necessary background information to address a real and contemporary problem. Two weeks ago, on the basis of evidence so flimsy that his own secretary of defense rejected it — and without any legal or constitutional authority — President Donald Trump dispatched 110 missiles to bomb certain military and civilian targets in Syria, where the president argued the Syrian government manufactured, stored or used chemical weapons.

Trump did not seek a congressional declaration of war, nor did he comply with the U.N. Charter, a treaty to which both the U.S. and Syria are signatories. Though Trump did not articulate any statutory basis for his use of the military, his predecessors often cited as legal support for their unconstitutional uses of military force two statutes — one enacted in 2001 and the other in 2002, each known as the Authorization for Use of Military Force, or AUMF.

The AUMFs refer to either the Taliban or al-Qaida or their affiliated forces in Afghanistan or Iraq as targets or to pursuing those who caused the attacks in America on 9/11 or those who harbor weapons of mass destruction.
Can the president legally use military force to attack a foreign land without a serious threat or legal obligation or a declaration of war from Congress? In a word: No. Here is the back story.

The Constitution is clear that only Congress can declare war and only the president can wage it. Federal law and international treaties provide that — short of defending the country against an actual attack — without a congressional declaration of war, the president can only constitutionally use military force to repel an enemy whose attack on America is imminent or to defend U.S. citizens and property in foreign lands from foreign attack or in aid of an ally pursuant to a treaty with that ally.

In the case of Trump’s bombing Syria earlier this month, none of those conditions was met.

Prior to the strike on Syria — but no doubt prodded by the prospect of it — a bipartisan group of senators offered legislation supported by the president that would rescind both AUMFs, which are now seriously outdated and of no useful moral or legal authority, in favor of an unconstitutional mishmash that would permit a president to strike whomever and wherever he pleases. The president would be restrained only by a vote of Congress — after hostilities have commenced.

Such a statute would give the president far more powers than he has now, would directly violate Congress’ war-making powers by ceding them away to the president, would defy the Supreme Court on the unconstitutionality of giving away core governmental functions, would commit the U.S. to foreign wars without congressional and thus popular support, and would invite dangerous mischief by any president wanting to attack any enemy — real or imagined, old or new — for foreign or domestic political purposes, whether American interests are at stake or not.

The proponents of this legislation will argue that Congress would retain its war-making powers by its ability to restrain the president. That is a naive contention because congressional restraint, which can come only in the form of prohibitory legislation or withdrawal of funds, would certainly be met by a presidential veto — and a veto can be overridden only by a two-thirds vote of both the House and the Senate.

What’s going on here? It is little more than the lust of the military-industrial complex and its allies in both major political parties in Congress for war. War unifies disparate politics, arouses deep patriotic instincts, enhances the government’s success in obtaining the people’s sacrifices, enriches arms-makers and kills innocents. War is the health of the state.

The Constitution, written in war’s aftermath, strictly limits its offensive use only to when the people’s representatives in Congress have recognized a broad national consensus behind it.

When Donald Trump ran for president, he condemned foreign wars that have served no real American purpose and he condemned presidential war-making; and he promised to end both. Where is that Donald Trump today?

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

 
🔊 Listen RSS

A few weeks ago, President Donald Trump was an outwardly happy man because of the utterance of one solitary word from the lips of special counsel Robert Mueller to one of Trump’s lawyers. The word that thrilled the president and his legal team was “subject.”

It seems that Mueller and one of Trump’s lawyers had been negotiating the terms under which the president would submit to an informal interrogation by Mueller and his team of prosecutors and FBI agents. Mueller’s request for such an interview was not unusual.

Investigators are usually looking to trap an unwary potential defendant into lying to them — a crime in that environment, even though the potential defendant is not under oath — or unwittingly admitting to them an allegation for which they need proof. The potential defendant often believes — foolishly, as history has shown — he can actually talk the investigators out of indicting him.

In preparation for this type of interview, the government often tells the lawyer for the person being interviewed whether that person is a witness, a subject or a target. A witness is a person whose knowledge and memory the government wishes to examine. A subject is a person whose behavior is under criminal investigation. A target is a person whom the government plans to indict.

When Trump and his team learned that he was just a subject and not a target, they rejoiced. And then, in a series of bizarre events, all hell broke loose, and his joy turned to gloom. Here is what happened.

In the course of its continuing investigation of Trump, Mueller’s team came across evidence of criminal behavior on the part of Michael Cohen, Trump’s longtime New York City lawyer. Because the evidence was related to activities that took place in New York City, Mueller sent the evidence to the chief federal prosecutor in Manhattan.

After a team of federal prosecutors there examined whatever Mueller brought them, in conjunction with what they already knew about Cohen, they applied to a federal judge for search warrants of venues where they believed Cohen kept files of his work. The search warrants were executed simultaneously at 5:30 in the morning two Mondays ago.

Cohen’s lawyers then filed a motion that asked a federal judge to prevent the federal prosecutors in Manhattan from examining what the FBI seized — enough to fill a small pickup truck — arguing that it was Cohen’s records of the legal work he had performed for his clients and thus was protected by the attorney-client privilege.

In opposition to Cohen’s motion, federal prosecutors argued that Cohen and Trump have engaged in behavior together that may have been criminal or fraudulent and that they used the attorney-client privilege to mask their communications.
The federal prosecutors also argued that Cohen was not truly performing legal work for Trump; rather, they said, he was a fixer of Trump’s image and a trickster to Trump’s adversaries. Then they revealed that the source of their purported knowledge of the Trump-Cohen relationship was surveillance of Cohen, whose telephone calls, emails and text messages the feds had been capturing for months.

That means that federal prosecutors have overheard the president of the United States in telephone conversations he believed were protected by privilege, in which he was talking to a man under criminal investigation who he has said was his lawyer.

When all this came to a head this past Monday in the federal courtroom of Judge Kimba Wood, she confronted a legally unusual situation. Trump’s lawyers demanded that everything seized from Cohen be turned over to Trump because he was and is — as far as Trump knew — Cohen’s sole client.

Cohen claimed he has three clients, and he demanded that all that was seized be examined by a neutral special master to determine what is privileged and what is not. The prosecutors demanded that they have access to all that was seized, because the seizure had already been approved by another federal judge when he signed the search warrants that triggered the FBI’s seizures.

Judge Wood ordered the FBI to copy all that was seized and send copies to lawyers for Trump and for Cohen and to federal prosecutors; and then the lawyers can argue to the court what is privileged and what is fair game for the prosecutors’ use. In the course of those arguments, federal prosecutors will see what was seized, whether privileged or not.

The attorney-client privilege protects from scrutiny or revelation the confidential communications of a client to his lawyer that are integral to the lawyer’s legal work for the client. The privilege does not apply to casual conversations between client and lawyer or if the lawyer is doing nonlegal work or if the client is committing a crime, a fraud, a tort or a regulatory violation and is consulting the lawyer about that.

Now we have a very perilous situation for the president. Records of whatever work Michael Cohen has been doing for him in the past 10 years will soon be in the custody of federal prosecutors who expect it to be evidence of wrongdoing on the part of the president himself. These are the best federal prosecutors in the country. They are civil service-protected and can only be fired for cause, and they have been listening to the president’s phone calls to his confidant and “fixer” and will soon see the fixer’s files.

Has Trump been in cahoots with a bad guy as federal prosecutors have alleged? Is this prosecutorial team in Manhattan more dangerous to Donald Trump than Mueller and his crew in Washington? Was evidence about Trump the real goal of those early-morning FBI raids? Is the president no longer just a subject and now a target of a new team of federal prosecutors? Who can safely confide in a lawyer after this?

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

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump 
🔊 Listen RSS

In the midst of worrying about North Korea, Syria and Democrats taking control of the House of Representatives this fall, President Donald Trump is now worrying about a government assault on his own business, which targeted his own lawyer.

Michael Cohen has been the personal lawyer for Trump and for the Trump Organization — the umbrella corporation through which Trump owns or manages nearly all entities that bear his name — for many years. Cohen is so closely connected to the Trump Organization that one of his two law offices is located on the 26th floor of Trump Tower, just a few doors from the corner office formerly occupied by Trump himself.

On Monday, shortly before dawn, a team of FBI agents bearing a search warrant from a federal judge broke in to the offices of the Trump Organization and removed computers, files, tax returns and telephones from Cohen’s office. At about the same time, three other teams of FBI agents performed raids. One was at another of Cohen’s offices a few blocks away, and his vacant New York City apartment and hotel rooms he had been occupying were searched, too; and agents also seized personal and professional files and equipment from those venues.

Did the FBI lawfully break in to the headquarters of the president’s family business and cart away files and equipment from his lawyer, as well as legal and financial files of the president himself? The short answer is: yes.

Here is the back story.

In October 2016, when the federal government began its investigation of alleged attempts by the Russian government to interfere with the 2016 presidential election, then-Attorney General Loretta Lynch managed the work.
After Trump became president and Jeff Sessions became attorney general and Sessions recused himself from this investigation, the No. 2 person in the Department of Justice appointed former FBI Director Robert Mueller as special counsel in charge of the Russia investigation. The investigation in Washington is 18 months old and has been run by Mueller for about 11 months.

If a criminal investigation stumbles upon evidence of crimes substantially removed by geography or subject matter from the location and principal responsibilities of the investigation, it is the prosecutors’ duty either to prosecute those crimes if feasible or to pass whatever evidence has been found on to another prosecutor closer to the place of the alleged crime.

Sometimes, keeping that evidence is a temptation too great to resist. That’s because one of the techniques that prosecutors in America use to gather evidence about a crime is to indict those at the fringes of the behavior they are investigating and then attempt, by coercion and bribery, to turn those indicted individuals into cooperating witnesses. Sometimes the indicted crime is truly at the fringes, both rationally and geographically. But the targets of these fringe prosecutions are rarely attorneys who are representing a person who is a subject of the investigation.

Until now.

Though Cohen does not represent Trump in the Mueller investigation, he does represent him in nearly all other legal matters, and his files contain a treasure-trove of confidential and financial materials from and about Trump. Judges are very reluctant to sign search warrants authorizing the seizure of legal files, with two exceptions.

The first is the so-called crime/fraud exception. Under this rule, if the client is using his confidential communications with his lawyer to further an ongoing crime, fraud or tort, the communications are not privileged, and evidence of them may be seized.

The other exception is the independent criminal activity of the lawyer. That appears to be the case here. It seems that Cohen — who claims he borrowed $130,000 from a bank to pay an adult-film actress to remain silent about her relationship to Trump, which Trump denies was sexual — did not tell the bank from which he borrowed the funds the true purpose of the loan.

If so, that may be evidence of bank fraud on Cohen’s part. If he wired those funds over interstate lines, that is evidence of wire fraud. If he used the U.S. Postal Service to facilitate a material part of the deal with the actress, that would be considered mail fraud. Each of these fraud charges carries a prison term of five years.

When FBI agents arrive for a raid, they rarely take the time to examine fully all the documents they have seized — even if the documents are protected by the attorney-client privilege and even if the client is the president of the United States. Needless to say, there are safeguards in place to prevent the prosecutors who dispatched the agents from viewing the privileged materials.

When Mueller in Washington came upon evidence of Cohen’s bank fraud in Manhattan, he passed it along to the U.S. attorney’s office in Manhattan. That office — not Mueller — examined the evidence and obtained the search warrants for Cohen’s personal and professional premises, authorized the raids of those premises and received the fruits of the raids.

What will become of Cohen? Federal prosecutors in Manhattan will now decide whether to ask a grand jury to indict him on the fraud charges, and if he is indicted, Mueller will enter the picture looking to make a deal.

Trump’s lawyer was Mueller’s bait.

All of this has understandably infuriated Trump. His rights as a client were violated. His attorney of many years and on many matters will soon be a defendant. Can Trump restrain himself from offering to pardon those who could harm him or firing those who are tormenting him or waging war against real or imagined enemies? Will his anger, frustration and disgust at the violation of his financial and personal privacy push him and America into what even congressional

Republicans fear would be a constitutional crisis?

The potential failure of self-restraint is the real threat he now faces.

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

 
• Category: Ideology • Tags: Donald Trump 
🔊 Listen RSS

Robert Mueller is the special counsel appointed by Deputy Attorney General Rod Rosenstein in May 2017 to probe the nature and extent of Russian interference in the 2016 presidential campaign. The investigation began in October 2016 under President Barack Obama when the FBI took seriously the boast of Carter Page, one of candidate Donald Trump’s foreign policy advisers, that he had worked for the Kremlin.

The FBI also had transcripts of telephone conversations and copies of emails and text messages of Trump campaign personnel that had been supplied to it by British intelligence. Connecting the dots, the FBI persuaded a judge on the Foreign Intelligence Surveillance Court to issue a search warrant for the surveillance of Page, an American.

Page never registered as a foreign agent, and working for the Kremlin and not registering as a foreign agent is a crime for which the FBI should have investigated Page. Such an investigation would have included surveillance, but not from the FISA court. Surveillance in a criminal case requires a search warrant from a U.S. District Court based upon the constitutional requirement of probable cause of crime — meaning that it is more likely than not that the thing to be searched (internet and telephone communications) will produce evidence of criminal behavior.

But the FBI didn’t seek that. Instead, it sought a warrant to surveil Page’s communications based on the Foreign Intelligence Surveillance Act standard, which is probable cause of communicating with a foreign power. This lower, easier-to-demonstrate and unconstitutional standard is the tool of choice these days for FBI agents because it requires less effort and is used in a court that grants 99.9 percent of search warrant applications.

The temptation to use the FISA court and its easy standard instead of a U.S. District Court and its privacy-recognizing constitutional standard to get a search warrant is often too much for the FBI to resist. This is a form of corruption because it presents a path for criminal investigators to invade the privacy of Americans that the Constitution protects.

Yet the FBI used whatever it learned from the surveillance of Page to get that surveillance extended. Even the Trump Department of Justice went to the FISA court to spy on Page. Lost in all this is the purpose of FISA — to prevent government surveillance of Americans and limit it to agents of foreign powers.

When Jeff Sessions became attorney general, he recognized that he himself would most likely be a witness in the Mueller investigation because of his involvement in the Trump campaign, so he removed himself from all matters pertaining to Russia, and his deputy, Rosenstein, appointed Mueller to run the investigation.

What is Mueller looking for?

When the feds are examining a potential crime committed by a group, their treasure-trove of evidence can often be a member of the group who reveals the criminal behavior of his former colleagues. That’s why the feds often indict people for crimes that appear to be irrelevant to the ones they are investigating — in this case, lying to the FBI and bank fraud allegedly committed before the 2016 election.

When such an indicted person can then be persuaded to turn on his former colleagues in return for a lesser charge or a lighter sentence, prosecutors can have a field day. This is a form of bribery — you tell us on the witness stand what we want to hear and we’ll go easy on you — that is permitted only to prosecutors; and the courts condone it. If defense counsel gave as much as a lollipop to a witness to shade his testimony, both would be indicted.

From the backgrounds of those whom Mueller’s grand juries have indicted and from the deals they have cut with him, it appears that Mueller is looking at three areas of potential criminal behavior. Mueller has already established as a base line the saturation of the 2016 presidential campaign by Russian intelligence agents. If his indictments of these Russians are accurate, they were here virtually and physically and they spent millions to help Trump. But the indicted Russians are not coming back to the U.S. for their trials.

Mueller is examining their potential American confederates for the crime of conspiracy — or, as my colleagues in the media call it, collusion. This would be an agreement by campaign officials to accept something of value from a foreign person, entity or government, even if the thing of value — for example, Hillary Clinton emails — was never actually delivered. The crime is the agreement, and it is prosecutable after at least one of those who agreed takes a material step in furtherance of the agreement.

Mueller’s second area of examination is possible obstruction of justice by President Trump himself. Obstruction is the interference with a judicial proceeding for a corrupt purpose. Was FBI Director James Comey fired because Trump couldn’t work with him or because he was hot on the president’s trail and Trump wanted to impede that? If it was the former, it would have been licit. If it was the latter, it could have been criminal.

The third of Mueller’s areas is financial dealings by the pre-presidential Trump. These bear little surface relationship to Russian involvement in the campaign, yet evidence of wrongdoing must have come to Mueller from his FBI agents or his cooperating witnesses, and he is following the money as prosecutors do.

Where will all this go? The president cannot seem to find an experienced criminal defense lawyer. Mueller has 16 experienced federal prosecutors and a few dozen FBI agents passionately at work. And he also has witnesses he legally bribed and a few hundred thousand documents from the White House and from Trump’s financial affairs that the president has not personally reviewed.

And now Mueller wants to interview the president. Who will have the upper hand if that happens?

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

 
• Category: Ideology • Tags: Donald Trump, Government Surveillance, Russia 
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.


PastClassics
The evidence is clear — but often ignored
The unspoken statistical reality of urban crime over the last quarter century.
The major media overlooked Communist spies and Madoff’s fraud. What are they missing today?
The “war hero” candidate buried information about POWs left behind in Vietnam.
Are elite university admissions based on meritocracy and diversity as claimed?