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When James Madison drafted the First Amendment — “Congress shall make no law … abridging the freedom of speech” — he made sure to use the article “the” in front of the word “freedom.” What seemed normal to him and superfluous to moderns was actually a profound signal that has resonated for 227 years. The signal was that because the freedom of speech existed before the government that was formed to protect it came into existence, it does not have its origins in government.

The freedom of speech has its origins in our humanity. It is a natural right. It exists in the absence of government. By the exercise of normal human reasoning, all rational people are drawn to exercise this freedom. Madison understood this. He could have written, “Congress shall grant freedom of speech.” He did not because that freedom is not Congress’ to grant or to abridge.

I am presenting this thumbnail sketch of the historical and philosophical underpinnings of the freedom of speech by way of background to a hot dispute now raging off the front pages. The dispute addresses whether the president of the United States can use federal courts to block the exercise of this right. CBS News wants to air an interview with an adult-film actress who alleges a sexual relationship with Donald Trump — a relationship he denies — and President Trump wants to prevent the airing.

The actress, whose stage name is Stormy Daniels, signed an agreement in October 2016 to accept $130,000 in return for remaining silent about her alleged sexual relationship with Trump, which she claims occurred shortly after the birth of his son Barron, who is now almost 12. The lawyer who negotiated the agreement with Daniels’ lawyer claimed that he was doing this on his own, that the hush money came from him and not Trump, and that Trump was not his client.

That claim raises profound campaign finance issues, but they are not the point of this piece. The point of this piece is about the freedom of speech.

Daniels, whose present lawyers have sued to invalidate the agreement, recently gave an interview about her relationship with Trump to the CBS News program “60 Minutes.” CBS plans to air that interview in the coming weeks, and Trump wants to prevent that from happening. The stated legal basis for Trump’s lawyers asking a court to block the broadcast is the existence of the hush agreement, which, in plain words, bars Daniels from discussing anything about her alleged sexual relationship with Trump. Obviously, Trump does not want any allegations from Daniels — true or false — to become a topic of public conversation and a distraction to his presidency.

Can the president legally persuade a federal court to enjoin the airing of an interview? In a word: no. Here is the back story.

In 1931, in a famous case called Near v. Minnesota, the Supreme Court generally rejected the concept of “prior restraint.” Prior restraint is the use of the courts to prevent the media from disseminating materials they already have. The Near case dealt with an anti-Catholic, anti-Semitic, anti-African-American newspaper that Minnesota state courts had silenced. The Supreme Court overruled the state courts and held that the freedom of speech presumes that individuals will decide for themselves what to read and hear and the First Amendment keeps the government — which here includes the courts — from censoring the marketplace of ideas, even hateful ideas.

Forty years later, in the Pentagon Papers case, the Supreme Court made a similar ruling. There, Daniel Ellsberg, an employee of a contractor to the Department of Defense, stole highly classified documents that demonstrated that then-President Lyndon B. Johnson and his generals had knowingly deceived the American public about the war in Vietnam.

When Ellsberg gave the documents to The New York Times and The Washington Post, the Nixon administration hurriedly persuaded a federal judge in New York to enjoin the Times from publishing the documents. Before a federal judge in Washington could rule on a similar request — and bypassing the intermediate appellate courts — the Supreme Court took the case and ruled in favor of the freedom of speech and reinforced the judicial condemnation of prior restraint.

But the Pentagon Papers ruling went a step further than the Near opinion had. It ruled that no matter how a media outlet has acquired matters material to the public interest — even by theft of top-secret documents — the outlet is free to publish them. This, of course, does not absolve the thief (though the case against Ellsberg was dismissed because of FBI misconduct), but it makes clear that no court can block the media from revealing what they reasonably believe the public wants to hear.

Now back to the president and the adult-film star. Because whatever Daniels said to CBS arguably speaks to Trump’s fitness for office, individuals have the right to learn of it, to hear Trump’s denials and to form their own opinions. In Trump’s case, he has a bigger megaphone than CBS does — via his adroit use of social media — and the volume and ferocity of his denials might carry the day.

But the point here is that individuals can make up their own minds about the president’s character; they don’t have to endure the prior restraint of a court’s silencing a voice in the debate, even a tawdry voice.

What if the hush money agreement Daniels signed — and the president did not — is valid? Could that trigger prior restraint? In a word: no. The Madisonian values underpinning the freedom of speech, as articulated consistently by the Supreme Court, will prevail. Anything short of that would prefer government censorship over personal choices in matters of speech, a preference the First Amendment profoundly rejects.

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Censorship, Constitutional Theory, Donald Trump 
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Late Monday afternoon, we were treated to a series of bizarre interviews on nearly every major cable television channel except Fox when a colorful character named Sam Nunberg, a former personal and political aide to Donald Trump, took to the airwaves to denounce a grand jury subpoena he received compelling the production of documents and live testimony.

The grand jury is one of two summoned by special counsel Robert Mueller in his investigation of whether President Trump or his colleagues engaged in any criminal activity prior to or during the presidential campaign, or during his presidency.

At several points in the rambling and seemingly alcohol-infused rant, Nunberg insisted he would not comply with the subpoena, and he challenged Mueller to force him to do so, proclaiming at least three times, “Let him arrest me!” I can tell you from my years on the bench in New Jersey, this is not a good gauntlet to lay down; and it is one often addressed swiftly. Be careful what you ask for.

Here is the backstory:

Nunberg is a 36-year-old New York lawyer who has been involved in conservative politics since his teenage years. He was hired by Trump in 2011 for the purpose of burnishing Trump’s image as a political conservative. Like most people hired by Trump before his presidential candidacy, Nunberg signed a contract that provided for liquidated damages of $10 million should he publicly reveal any private matters he learned about Trump during his employment.

Trump did fire Nunberg in 2014 because of an unflattering op-ed that he believed Nunberg’s odd behavior had induced and sued Nunberg for $10 million. Nunberg counterclaimed that Trump was using corporate funds from the Trump Organization to fund his then-nascent presidential campaign, a potential felony. Soon, the litigation was dropped and Nunberg was rehired. And in 2015, he was fired again, in a very public and humiliating way by candidate Trump himself.

Last month, Nunberg agreed to be interviewed by Mueller’s prosecutors and FBI agents. After the five-hour interview, he told friends and media folks that he discerned from the questions that Mueller has “something bad” on Trump. Nunberg thought his involvement with the special prosecutor was over when he received a grand jury subpoena and then reacted in a most unlawyerly fashion.

For a few reasons, this is not good news for the president.

First, whatever Nunberg told the prosecutors and FBI agents who interviewed him last month, they revealed it to one of their grand juries; and they asked and received from the grand jury a subpoena compelling Nunberg to recount to the grand jury what he said in his interview. This is the same interview from which he claimed he learned that Mueller & Co. have “something bad” on Trump. The president’s lawyers would surely like to see whatever Mueller’s prosecutors told the grand jury Nunberg told them. So would we all.

Second, during his rants on Monday, he opined that the president is an “idiot” who no one hates “more than me,” and that Mueller had offered him immunity in return for his testimony. Immunity? That is the highest and best gift a prosecutor can give a witness or target. If done in accordance with the rules, it bars all prosecution of the immunized person no matter what he admits to in testimony, unless he lies under oath. If Mueller did offer Nunberg immunity, it can only mean that Mueller desperately needs Nunberg’s testimony against the president to be recounted to one of his grand juries, and that Nunberg has some criminal exposure.

At the end of his day of rage, Nunberg had a change of heart. I suspect it was induced by a compassionate on-camera plea to Nunberg by my Fox colleague Charles Gasparino, a friend of Nunberg who told him to talk to his lawyers and his doctors soon. After six hours of wild on-air gyrations and threats, Nunberg agreed to testify, Gasparino says.

Nunberg’s doctors must have calmed him down, and his lawyers must have reminded him that the remedy for the persistent willful failure to comply with a grand jury subpoena is incarceration. That would mean incarceration for the life of the grand jury, which now seems as though it will be sitting well into 2019. His lawyers no doubt also reminded him that it is insane to taunt an alligator before crossing the stream. The FBI does not like being provoked.

While all this was going on, the same grand jury subpoenaed all emails between or among Trump’s inner circle of 10 persons — including the president himself. Given the roles each has played in Trump’s recent life, it is clear that the president remains in Mueller’s legal crosshairs.

There are actually three sets of legal crosshairs, so to speak. One seeks to determine whether the Trump campaign received “anything of value” from any foreign national or foreign government, and whether Trump personally approved of it — a felony. Another inquiry seeks to determine whether the president himself attempted to obstruct the work of the Mueller grand juries by firing then-FBI Director James Comey for a corrupt reason, one that is self-serving and lacking a bona fide governmental purpose — also a felony.

The third inquiry seeks to examine whether Trump misused or misrepresented corporate funds or bank loans in his pre-presidential life — another felony. On this last point, he has already been accused by Nunberg; and the grand jury no doubt will hear about it.

It has often been argued that out of the mouths of babes and drunks comes the truth, as both lack a filter and any moral fear. Is Nunberg dumb like a fox? Did he impeach himself? Would you believe Sam Nunberg?

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Donald Trump, Russia 
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The Ash Wednesday massacre at Marjory Stoneman Douglas High School in Parkland, Florida, seems to have broken more hearts than similar tragedies that preceded it. It was no more senseless than other American school shootings, but there is something about the innocence and bravery and eloquence of the youthful survivors that has touched the souls of Americans deeply.

After burying their dead, the survivors have mobilized into a mighty political force that loosely seeks more laws to regulate the right to keep and bear arms. The young people, traumatized and terrified with memories of unspeakable horror that will not fade, somehow think that a person bent on murder will obey gun laws.

Every time I watch these beautiful young people, I wince, because in their understandable sadness is the potential for madness — “madness” being defined as the passionate and stubborn refusal to accept reason. This often happens after tragedy. After watching the government railroad Abraham Lincoln’s killer’s conspirators — and even some folks who had nothing to do with the assassination — the poet Herman Melville wrote: “Beware the People weeping. When they bare the iron hand.”

It is nearly impossible to argue rationally with tears and pain, which is why we all need to take a step back from this tragedy before legally addressing its causes.

If you believe in an all-knowing, all-loving God as I do, then you accept the concept of natural rights. These are the claims and privileges that are attached to humanity as God’s gifts. If you do not accept the existence of a Supreme Being, you can still accept the concept of natural rights, as it is obvious that humans are the superior rational beings on earth. Our exercise of reason draws us all to the exercise of freedoms, and we can do this independent of the government. Stated differently, both the theist and the atheist can accept the concept of natural human rights.

Thomas Jefferson, who claimed to be neither theist nor atheist, wrote in the Declaration of Independence that all men are created equal and are “endowed by their Creator with certain unalienable Rights.” Such rights cannot be separated from us, as they are integral to our humanity. Foremost among our unalienable rights is the right to life — the right to be and to remain alive.

And that right implies the right to defend life — the right to self-defense. If I am about to assault you in the nose, you can duck, run away or punch me first. If I am about to strike your children, you can strike me first. If I am about to do either of those things with a gun, you can shoot me first, and no reasonable jury will convict you. In fact, no reasonable prosecutor will charge you.

The reason for all this is natural. It is natural to defend yourself — your life — and your children. The Framers recognized this right when they ratified the Second Amendment. They wrote it to ensure that all governments would respect the right to keep and bear arms as a natural extension of the right to self-defense.

In its two most recent interpretations of the right to self-defense, the Supreme Court characterized that right as “pre-political.” That means the right pre-existed the government. If it pre-existed the government, it must come from our human nature. I once asked Justice Antonin Scalia, the author of the majority’s opinion in the first of those cases, called the District of Columbia v. Heller, why he used the term “pre-political” instead of “natural.” He replied, “You and I know they mean the same thing, but ‘natural’ sounds too Catholic, and I am interpreting the Constitution, not Aquinas.”

With the Heller case, the court went on to characterize this pre-political right as an individual and personal one. It also recognized that the people who wrote the Second Amendment had just fought a war against a king and his army — a war that they surely would have lost had they not kept and carried arms that were equal to or better than what the British army had.

They didn’t write the Second Amendment to protect the right to shoot deer; they wrote it to protect the right to self-defense — whether against bad guys, crazy people or a tyrannical government bent on destroying personal liberty.

In Heller, the court also articulated that the right to use guns means the right to use guns that are at the same level of sophistication as the guns your potential adversary might have, whether that adversary be a bad guy, a crazy person or a soldier of a tyrannical government.

But even after Heller, governments have found ways to infringe on the right to self-defense. Government does not like competition. Essentially, government is the entity among us that monopolizes force. The more force it monopolizes the more power it has. So it has enacted, in the name of safety, the least safe places on earth — gun-free zones. The nightclub in Orlando, the government offices in San Bernardino, the schools in Columbine, Newtown and Parkland were all killing zones because the government prohibited guns there and the killers knew this.

We all need to face a painful fact of life: The police make mistakes like the rest of us and simply cannot be everywhere when we need them. When government fails to recognize this and it disarms us in selected zones, we become helpless before our enemies.

But it could be worse. One of my Fox News colleagues asked me on-air the other day: Suppose we confiscated all guns; wouldn’t that keep us safe? I replied that we’d need to start with the government’s guns. Oh, no, he said. He just meant confiscation among the civilian population. I replied that then we wouldn’t be a civilian population any longer. We’d be a nation of sheep.

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Constitutional Theory, Gun Control 
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Last Friday, a federal grand jury sitting in Washington, D.C., indicted 13 Russian nationals and three Russian corporations for conspiracy and for using false instruments and computer hacking so as to influence the American presidential election in 2016. The indictment alleges a vast, organized and professional effort, funded by tens of millions of dollars, whereby Russian spies passed themselves off as Americans on the internet, on the telephone and even in person here in the U.S. to sow discord about Hillary Clinton and thereby assist in the election of Donald Trump.

Though an indictment is a charge only, it presumably relies on hard evidence of a wide and deep Russian project — so wide and so deep that it could only have been approved and paid for by the Kremlin. President Trump’s national security adviser, Lt. Gen. H.R. McMaster, characterized the allegations in the indictment as “incontrovertible.” The New York Times reported over the weekend that its Russian sources have now revealed that more than 1,000 people in Russia were involved for over three years.

The project was run out of an office building in St. Petersburg, Russia, which also houses the Kremlin’s favorite caterer, a company owned by one of Russian President Vladimir Putin’s close friends. The techniques outlined in the indictment include using false and fictitious names, bank accounts and websites; organizing rallies and marches in the U.S.; making thousands of phony web posts; and aggressively revealing embarrassing data about Clinton.

The Russian work even included the orchestration of a few pro-Clinton rallies so as to deflect suspicion away from all these new pro-Trump entities that appeared to have come out of nowhere.

Though Donald Trump told folks as far back as 2011 of his interest in running for president and though Clinton ran in the Democratic primaries in 2008 and 2016, as well as in the general election in 2016, the Russian scheme appears to have materialized at some point in 2014.

The dates are important because we know from the revelations of Edward Snowden that the National Security Agency, the federal government’s domestic spying apparatus, began its pursuit of capturing all electronic data on everyone in the U.S. in 2001 and succeeded in mastering the capture of all keystrokes, telephone calls and digital traffic by 2005. We also know that the NSA traffic proceeds through FBI computers and that the CIA keeps constant tabs on Russian spies in Russia and elsewhere.

Why didn’t the CIA or the NSA or the FBI pick this up?

That is the $64,000 question that the indictment does not address, and we may never know the answer to it. If the purpose of all the warrantless spying — in direct contravention of the Constitution, no less — is to keep the country safe from foreign assault, whether by bombs in a subway or by guns in an office building or by hacking into computers, why didn’t our 60,000 domestic, and God only knows how many foreign, spies catch this Russian interference?

One answer is information overload. By spying on everyone all the time, the spies have too much data through which to sift, and they miss the evidence of coming terror — just as they did with the killings in Orlando, in San Bernardino, at the Boston Marathon, on a New York bike path and even recently at a school in Florida, all of which were preceded by internet chatter that would have tipped off a trained listener to the plans of the killers.

Special counsel Robert Mueller’s efforts to uncover the Russian interference are not a “hoax” or a “witch hunt” as President Trump has argued. They are serious and professional efforts that have now borne fruit. But Mueller was not appointed until after the election — after the Russians ran unchecked through our computer systems and the American marketplaces of ideas.

The joke in the D.C. legal community this week is, “We all want a front-row seat at the arraignments of the Russians.” That’s a joke because a defendant must be physically present at his arraignment, meaning — since the Kremlin will surely not send its indicted spies here — no arraignments will occur. And no trials will occur.

These folks the grand jury indicted could be lured to other countries and arrested or even kidnapped there, but that would be very dangerous and would most likely invite violent retaliation. Even if these defendants ended up in a federal courtroom by murky or illegal means, that would not impair their prosecution.

However, because the American intelligence community has done similar “disinformation” projects in foreign countries (though not on this scale), these defendants and these indictments will go nowhere.

That leaves a question: Why would Mueller seek indictments of folks he knows he cannot prosecute? He did so for a few reasons. One was to reveal the scope of the unlawful activity that he has found. The American people are entitled to know what went on under our noses and who knew about this and looked the other way. As well, this indictment gives credibility to Mueller’s work.

The other reason for the indictment is to smoke out any American collaborators. He has identified American collaborators, but not by proper name, and the Department of Justice has said — not in the indictment, in which case it would be bound by what it says, but in a press statement, which binds no one — that the American collaborators were unwitting dupes of the Russians. My guess is that Mueller’s American targets are under electronic and visual surveillance and that he is listening to their (premature) sighs of relief.

It is a felony for foreign nationals to participate in American federal elections, and it is a felony for any Americans knowingly to assist them.

This is not the end of these indictments related to the 2016 election. It is the beginning.

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Foreign Policy • Tags: Donald Trump, Russia 
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Imagine you open the faucet of your kitchen sink expecting water and instead out comes cash. Now imagine that it comes out at the rate of $1 million a minute. You call your plumber, who thinks you’re crazy. To get you off the phone, he opines that it is your sink and therefore must be your money. So you spend it wildly. Then you realize that the money wasn’t yours and you owe it back.

Now imagine that this happens every minute of every day for the next three years. At the end of the three years, you owe back more than $6 trillion. So you borrow $6 trillion to pay back the $6 trillion you owe.
Is this unending spigot of cash reality or fantasy?

I am not speaking of Amazon or Google or Exxon Mobil or Apple. They deliver products that appeal to consumers and investors. They deal in copious amounts of money because they sell what hundreds of millions of people want to purchase and they do it so efficiently that hundreds of thousands want to invest in them. If they fail to persuade consumers to purchase their products and investors to purchase their financial instruments, they will go out of business.
My analogy about all that cash in your kitchen sink that just keeps coming is not about voluntary commercial transactions, which you are free to accept or reject. It is about the government’s spending what it doesn’t have, the consequences of which you are not free to reject.

Government produces no products that consumers are willing to pay for voluntarily, and it doesn’t sell shares of stock in its assets. It doesn’t generate wealth; it seizes it. And when it can no longer politically get away with seizing, it borrows. It borrows a great deal of money — money that it rolls over, by borrowing trillions to pay back trillions to prior lenders, and thus its debt never goes away.

Last week, after eight years of publicly complaining that then-President Barack Obama was borrowing more than $1 trillion a year to fund the government — borrowing that the Republicans silently consented to — congressional Republicans, now in control of Congress and with a friend in the Oval Office, voted to spend and hence borrow between $5 trillion and $6 trillion more than tax revenue will produce in the next three years; that’s a few trillion more than they complained about in the Obama years.

That’s borrowing $1 million a minute.

Obviously, no business or household or bank can survive very long by borrowing from Peter to pay Paul. Yet the federal government, no matter which party controls Congress or the presidency, engages in staggering borrowing — borrowing that will cripple future generations by forcing them to pay for goods and services that were consumed before they were born.

The government has often borrowed to meet critical emergency needs, typically during wartime. Indeed, the country was born in debt when Alexander Hamilton, the father of big government, offered the idea that the new federal government created by the Constitution could purchase the fidelity of the states by assuming their Revolutionary War debts.

But those debts were paid back using inflation, gold and tax dollars, and the country enjoyed sporadic periods of nearly debt-free government. Then three unhappy events coincided about 100 years ago: Woodrow Wilson — the father of modern-day big government — was elected president, and he brought us into the useless battle over national borders among old European royalty called the Great War, and he financed American participation in that first world war using the new printing presses owned by the new Federal Reserve System.

The $30 billion President Wilson borrowed from the Federal Reserve and others has been rolled over and over and has never been repaid. The federal government still owes the $30 billion principal, and for that it has paid more than $15 billion in interest. Who in his right mind would pay 50 percent interest on a 100-year-old debt? Only the government.

Wilson’s $30 billion debt 100 years ago has ballooned to $20.6 trillion today. At the end of President Donald Trump’s present term — because of the Republican budget signed into law last week — the government’s debt will be about $27 trillion.

That amount is a debt bomb waiting to explode. Here’s why. Every year, the federal government collects about $2.5 trillion in revenue and spends it all. It borrows another $1.5 trillion to $2 trillion and spends it all. To avoid paying back any of the $27 trillion it will owe, the federal government will need to spend about $1 trillion a year in interest payments.

That $1 trillion is 40 percent of the revenue collected by the federal government; that’s 40 cents on every dollar in tax revenue going to interest on old debts — interest payments that are legally unavoidable by taxpayers and voters.

Will the taxpaying public tolerate this much longer? What would happen if taxpayers stopped paying taxes because 40 percent of what they’ve been paying has produced nothing for them? Would investors stop lending money to the government because of fear that the government could not pay them back? The Constitution requires the government to pay its debts. Would the government’s creditors acquire control of the government’s fiscal policy in order to pay themselves back? The government’s biggest creditor is one of its biggest menaces — the government of China.

Borrowing money at $1 million a minute is digging a hole out of which we will never peacefully climb. President Obama’s and President Trump’s own military and intelligence chiefs have argued that the national debt — not the Russians or the Islamic State group or the North Koreans — is the greatest threat to freedom and security that we face today.

Why are Congress and President Trump not listening?

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Government Spending 
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We remain embroiled in a debate over the nature and extent of our own government’s spying on us. The Foreign Intelligence Surveillance Act, which was enacted in 1978 as a response to the unlawful government spying of the Watergate era, was a lawful means for the government to engage in foreign surveillance on U.S. soil, but it has morphed into unchecked government spying on ordinary Americans.

The journey that domestic spying has taken in 40 years has been one long steady march of massive increase in size and scope. The federal government now employs more than 60,000 people to spy on all Americans, including the White House, the Pentagon, the federal courts and one another. As well, the National Security Agency and the intelligence arm of the FBI have 24/7 access to the computers of all telecoms and computer service providers in the U.S. And certain politicians have access to whatever the NSA and the FBI possess.

Last week, we witnessed a new turn as politicians engaged in cherry-picking snippets from classified raw intelligence data that support their political cases — pro-Trump and anti-Trump.

Raw intelligence data consists of digital versions of telephone conversations and copies of text messages, emails and other communications, as well as fiber-optic internet traffic (legal, medical and banking records, for example) and secret testimony and briefings intended only for the eyes and ears of those who possess a security clearance.

The surveillance state is now here.

The Republican members of the House Intelligence Committee fired the first salvo by releasing a memo derived from classified raw intelligence, which they claimed would show a conspiracy in the Obama Department of Justice, including the FBI, to spy on Donald Trump’s campaign and pass along the fruits of that spying to the Democrats. The issue they chose to highlight is the DOJ application to a Foreign Intelligence Surveillance Court judge for surveillance on Carter Page, a former foreign policy adviser to candidate Trump who once boasted that he also advised the Kremlin.

The memo’s authors wrote about intelligence data they did not personally see; they selectively extracted and purported to summarize raw intelligence data but quoted none of it verbatim; they intentionally sat on their conclusions that the feds regularly have abused FISA authorities throughout the congressional debate to expand FISA; and a principal drafter of the memo — Rep. Trey Gowdy — advises that the raw data he saw and the memo he wrote have nothing to do with special counsel Robert Mueller’s investigation of the president.

The Republican memo also reveals that former MI6 agent Christopher Steele, the author of the dossier that accuses Trump of pre-presidential money laundering and grossly inappropriate personal behavior but has many parts that have not been publicly verified, was a “longtime FBI source,” and a summary of his work was part of the DOJ’s application for continued surveillance of Page.

That quoted phrase is today a major headache for the DOJ, as the American and British governments, which regularly share intelligence and occasionally spy for each other, have agreed not to recruit the services of each other’s agents. But the FBI obviously recruited Steele. If Steele was an FBI asset while still a British spy — if he was spying for the FBI and MI6 at the same time — he may be exposed to a criminal prosecution in Britain.

The Democrats on the committee have written their own memo, which the committee voted unanimously to release. It will be up to the president to permit or bar its full or partial release. The Democrats claim that their memo will show that the DOJ was candid and truthful when it sought a FISA surveillance warrant on Page and that the application for the renewal included far more than Steele’s tainted work.

Why should anyone care about these political games?

The loss of liberty rarely comes about overnight or in one stroke. In a democracy, that loss is normally a slow process, often pushed along by well-intentioned folks who do not even realize until it is too late that they have created a monster. FISA is a monster. It began as a means of surveilling foreign agents in the U.S., and today it is used for surveilling any American at any time.

If you call a bookstore in Florence from a telephone in New Jersey, the government’s computers will be alerted. A federal agent will download the digital copy of your conversation, even though it was only about ordering a book. Then that communication may be used to justify surveillance of you whenever you talk to anyone else, in the U.S. or in any foreign country.

This is blatantly unconstitutional, and it is often fruitless. And we know it can happen to anyone.

The Supreme Court has ruled that electronic surveillance constitutes a search under the Fourth Amendment. That amendment prohibits warrantless searches and requires probable cause of crime as the sole trigger for judges to sign search warrants. FISA only requires probable cause relating to a foreign agent on one end of a phone call — a far lower standard — to trigger a warrant. The government has convinced the FISC that it should grant warrants based on probable cause of talking to someone who has ever spoken to a foreign person, whether an agent of a foreign government or an innocent foreign bookseller.

That judicially created standard is so far afield from the Fourth Amendment as to render it legally erroneous and profoundly unconstitutional. Yet the FISA expansion that the president signed into law last month — after the debate during which House Intelligence Committee Republicans intentionally remained mute about their allegations of FISA abuses — purports to make this Stasi-like level of surveillance lawful.

The political use of intelligence data makes the owner of the data a serious threat to personal liberty, and it renders his instruments monstrous.

Copyright 2018 Andrew P. Napolitano. Distributed by

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I have argued for a few weeks now that House Intelligence Committee members have committed misconduct in office by concealing evidence of spying abuses by the National Security Agency and the FBI. They did this by sitting on a four-page memo that summarizes the abuse of raw intelligence data while Congress was debating a massive expansion of FISA.

FISA is the Foreign Intelligence Surveillance Act of 1978, which was written to enable the federal government to spy on foreign agents here and abroad. Using absurd and paranoid logic, the secret Foreign Intelligence Surveillance Court, which only hears the government’s lawyers, has morphed “foreign intelligence surveillance” into undifferentiated bulk surveillance of all Americans.

Undifferentiated bulk surveillance is the governmental acquisition of fiber-optic data stored and transmitted by nearly everyone in America. This includes all telephone conversations, text messages and emails, as well as all medical, legal and financial records.

Ignorant of the hot potato on which the House Intelligence Committee had been sitting, Congress recently passed and President Donald Trump signed a vast expansion of spying authorities — an expansion that authorizes legislatively the domestic spying that judges were authorizing on everyone in the U.S. without individual suspicion of wrongdoing or probable cause of crime; an expansion that passed in the Senate with no votes to spare; an expansion that evades and avoids the Fourth Amendment; an expansion that the president signed into law the day before we all learned of the House Intelligence Committee memo.

The FISA expansion would never have passed the Senate had the House Intelligence Committee memo and the data on which it is based come to light seven days sooner than it did. Why should 22 members of a House committee keep their 500-plus congressional colleagues in the dark about domestic spying abuses while those colleagues were debating the very subject matter of domestic spying and voting to expand the power of those who have abused it?

The answer to this lies in the nature of the intelligence community today and the influence it has on elected officials in the government. By the judicious, personalized and secret revelation of data, both good and bad — here is what we know about your enemies, and here is what we know about you — the NSA shows its might to the legislators who supposedly regulate it. In reality, the NSA regulates them.

This is but one facet of the deep state — the unseen parts of the government that are not authorized by the Constitution and that never change, no matter which party controls the legislative or executive branch. This time, they almost blew it. If just one conscientious senator had changed her or his vote on the FISA expansion — had that senator known of the NSA and FBI abuses of FISA concealed by the House Intelligence Committee — the expansion would have failed.

Nevertheless, the evidence on which the committee members sat is essentially a Republican-written summary of raw intelligence data. Earlier this week, the Democrats on the committee authored their version — based, they say, on the same raw intelligence data as was used in writing the Republican version. But the House Intelligence Committee, made up of 13 Republicans and nine Democrats, voted to release only the Republican-written memo.

Late last week, when it became apparent that the Republican memo would soon be released, the Department of Justice publicly contradicted President Trump by advising the leadership of the House Intelligence Committee in very strong terms that the memo should not be released to the public.

It soon became apparent that, notwithstanding the DOJ admonition, no one in the DOJ had actually seen the memo. So FBI Director Chris Wray made a secret, hurried trip to the House Intelligence Committee’s vault last Sunday afternoon to view the memo. When asked by the folks who showed it to him whether it contains secret or top-secret material, he couldn’t or wouldn’t say. But he apparently saw in the memo the name of the No. 2 person at the FBI, Deputy Director Andrew McCabe, as one of the abusers of spying authority. That triggered McCabe’s summary departure from the FBI the next day, after a career of 30 years.

The abuse summarized in the Republican memo apparently spans the last year of the Obama administration and the first year of the Trump administration. If it comes through as advertised, it will show the deep state using the government’s powers for petty or political or ideological reasons.

The use of raw intelligence data by the NSA or the FBI for political purposes or to manipulate those in government is as serious a threat to popular government — to personal liberty in a free society — as has ever occurred in America since Congress passed the Alien and Sedition Acts of 1798, which punished speech critical of the government.

What’s going on here?

The government works for us; we should not tolerate its treating us as children. When raw intelligence data is capable of differing interpretations and is relevant to a public dispute — about, for example, whether the NSA and the FBI are trustworthy, whether FISA should even exist, whether spying on everyone all the time keeps us safe and whether the Constitution even permits this — the raw data should be released to the American public.

Where is the personal courage on the House Intelligence Committee? Where is the patriotism? Where is the fidelity to the Constitution? The government exists by our consent. It derives its powers from us. We have a right to know what it has done in our names, who broke our trust, who knew about it, who looked the other way and why and by whom all this was intentionally hidden until after Congress voted to expand FISA.

Everyone in government takes an oath to preserve, protect and defend the Constitution. How many take it meaningfully and seriously?

Copyright 2018 Andrew P. Napolitano. Distributed by

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During the past three weeks, Congress passed and President Donald Trump signed into law vast new powers for the NSA and the FBI to spy on innocent Americans and selectively to pass on to law enforcement the fruits of that spying.

Those fruits can now lawfully include all fiber-optic data transmitted to or in the United States, such as digital recordings of all landline and mobile telephone calls and copies in real time of all text messages and emails and banking, medical and legal records electronically stored or transmitted.

All this bulk surveillance had come about because the National Security Agency convinced federal judges meeting in secret that they should authorize it. Now Congress and the president have made it the law of the land.

This enactment came about notwithstanding the guarantee of the right to privacy — the right to be left alone — articulated in the Fourth Amendment to the Constitution and elsewhere. Though the surveillance expansion passed the Senate by just one vote, it apparently marks a public policy determination that the Constitution can be ignored or evaded by majority consent whenever it poses an obstacle to the government’s purposes.

The language of the Fourth Amendment is an intentional obstacle to the government in deference to human dignity and personal liberty. It reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This specific language was expressly written to prevent the bulk suspicionless surveillance that the British government had used against the colonists. British courts in London issued general warrants to British soldiers in America, authorizing them to search wherever they wished and seize whatever they found. These warrants were not based on probable cause, and they did not describe the place to be searched or the people or things to be seized.
The Colonial reaction to the British use of general warrants was to take up arms and fight the American Revolution.

Last week, Congress and the president chose to ignore our history and the human values underlying the right to privacy. Those values recognize that the individual pursuit of happiness is best actualized in an atmosphere free from the government’s prying eyes. Stated differently, the authors and ratifiers of the Fourth Amendment recognized that a person is not fully happy when being watched all the time by the government.

Yet the constitutional values and timeless lessons of history were not only rejected by Congress but also rejected in ignorance, and the ignorance was knowingly facilitated by the members of the House Intelligence Committee.

Here is the back story.

The recent behavior of the leadership of the House Intelligence Committee constitutes incompetence at best and misconduct in office at worst. The leadership sat on knowledge of NSA and FBI surveillance abuses that some committee members have characterized as “career-ending,” “jaw-dropping” and “KGB-like,” while both houses of Congress — ignorant of what their 22 House Intelligence Committee colleagues knew — voted to expand NSA and FBI surveillance authorities.
Stated differently, the 22 members of the committee knowingly kept from their 500 or so congressional colleagues incendiary information that, had it been revealed in a timely manner, would certainly have affected the outcome of the vote — particularly in the Senate, where a switch of just one vote would have prevented passage of this expansion of bulk surveillance authorization.

Why were all members of Congress but the 22 on this committee kept in the dark about NSA and FBI lawlessness? Why didn’t the committee reveal to Congress what it claims is too shocking to discuss publicly before Congress voted on surveillance expansion? Where is the outrage that this information was known to a few in the House and kept from the remainder of Congress while it ignorantly voted to assault the right to privacy?

The new law places too much power in the hands of folks who even the drafters of it have now acknowledged are inherently unworthy of this trust. I argued last week that House Intelligence Committee Chairman Devin Nunes was up to something when he publicly attacked the trustworthiness of the NSA and FBI folks whose secret powers he later inexplicably voted to expand. Now we know what he was talking about.

What can be done about this?

The House Intelligence Committee should publicly reveal the contents of its four-page report that summarizes the NSA and FBI abuses. If that fails, a courageous member of the committee should go to the floor of the House — as Sen. Dianne Feinstein once took the CIA torture report to the floor of the Senate — and reveal not just the four-page report but also the underlying data upon which the report is based. Members of Congress enjoy full immunity for anything said on the House or Senate floor, yet personal courage is often in short supply.

But there is a bigger picture here than House Intelligence Committee members sitting on valuable intelligence and keeping it from their colleagues. The American people are entitled to know how the government in whose hands we have reposed the Constitution for safekeeping has used and abused the powers we have given to it. The American people are also entitled to know who abused power and who knew about it and remained silent.

Does the government work for us, or do we work for the government? In theory, of course, the government works for us. In practice, it treats us as children. Why do we accept this from a government to which we have consented? Democracy dies in darkness. So does personal freedom.

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Foreign Policy • Tags: Government Surveillance 
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Late last week, Rep. Devin Nunes, R-Calif., chairman of the House Permanent Select Committee on Intelligence, repeated his public observations that members of the intelligence community — particularly the CIA, the NSA and the intelligence division of the FBI — are not trustworthy with the nation’s intelligence secrets. Because he has a security clearance at the “top secret” level and knows how others who have access to secrets have used and abused them, his allegations are extraordinary.

He pointed to the high-ranking members of the Obama administration who engaged in unmasking the names of some people whose communications had been captured by the country’s domestic spies and the revelation of those names for political purposes. The most notable victim of this lawlessness is retired Lt. Gen. Michael Flynn, President Donald Trump’s former national security adviser, a transcript of whose surveilled conversation with then-Russian Ambassador to the United States Sergey Kislyak found its way into print in The Washington Post.

During the George W. Bush and Barack Obama years, captured communications — digital recordings of telephone conversations and copies of emails and text messages — did not bear the names of those who sent or received them. Those names were stored in a secret file. The revelation of those names is called unmasking.

Nunes also condemned the overt pro-Hillary Clinton bias and anti-Trump prejudice manifested by former CIA Director John Brennan, former Director of National Intelligence James Clapper, former FBI Director James Comey and their agents in the field, some of whose texts and emails we have seen. The secrets that he argued were used for political purposes had been obtained by the National Security Agency pursuant to warrants issued by the Foreign Intelligence Surveillance Court.

Yet Nunes voted to enhance federal bulk surveillance powers.

Bulk surveillance — which is prohibited by the Constitution — is the acquisition of digital versions of telephone, email and text communications based not on suspicion or probable cause but rather on geography or customer status. As I have written before, one publicly available bulk surveillance warrant was for all Verizon customers in the United States; that’s 115 million people, many of whom have more than one phone and at least one computer. And it is surveillance of Americans, not foreigners as the Foreign Intelligence Surveillance Act contemplates.

How did this happen?

It happened in the dark. The NSA has persuaded the FISC, which meets in secret and only hears the government’s arguments, to permit it to spy on any American it wishes on the theory that all Americans know someone who knows someone else who knows someone who could have spoken to a foreign person working for a foreign government that could wish us ill.

This is the so-called judicial logic used to justify the search warrant on all of Verizon’s customers. This is what happens when judges hear only one side of a dispute and do so in secret.

The FISA amendments for which Nunes and other House members voted, which are likely to pass in the Senate, would purport to make bulk surveillance on all Americans lawful. At present, it is lawful only because the FISC has authorized it. The FISA amendments would write this into federal legislation for the next six years.

And these amendments would permit the FBI and any American prosecutor or law enforcement agency — federal, state or local — to sweep into the NSA’s databases, ostensibly looking for evidence of crime. If this were to become law, there would no longer be any unmasking scandals, because the stored data contains the names of the participants in the communications and would be readily available for harassment, blackmail or political use.

It would also mean that the Fourth Amendment to the Constitution — which guarantees privacy in our persons, houses, papers and effects — would have been gutted by the very officeholders who swore an oath to preserve, protect and defend it.
Does the American public know this? Does the president?

Last week, I made an impassioned plea on Fox News Channel directly to the president. I reminded him that he personally has been victimized by unlawful surveillance and the political use of sensitive surveillance-captured data; that the Constitution requires warrants for surveillance and they must specifically describe the place to be searched and the person or thing to be seized; that warrants must be based on probable cause of individual behavior, not an area code or customer list; that the purpose of these requirements is to preserve personal privacy and prohibit bulk surveillance; and that he took an oath to preserve, protect and defend the Constitution.

About an hour later, the president issued a tweet blasting bulk surveillance and unmasking. Two hours after that, he issued another tweet supporting the enactment of the FISA amendments.
What’s going on here?

I suspect that leaders in the intelligence community hurriedly convinced the president that if he sets aside his personal unhappy experiences with them and any constitutional qualms, they will use the carte blanche in the FISA amendments to keep us safe. This is a sad state of affairs. It means that Donald Trump changed his mind 180 degrees on the primacy of personal liberty in our once-free society.

The elites in the federal government and the deep state — the parts of the government that are unauthorized by the Constitution and that operate in the dark, what candidate Trump called “the swamp” — have formed a consensus that marches the might of the government toward total Orwellian surveillance.

This is a march that will be nearly impossible to stop. This is the permanent destruction of the right to privacy. This is the exaltation of safety over liberty, and it will lead to neither. This is the undoing of limited government, right before our eyes.

Copyright 2018 Andrew P. Napolitano. Distributed by

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Hidden beneath the controversy stirred up last week by the publication of a book called “Fire and Fury,” a highly critical insider’s view of the Trump White House that the president has not only denounced on national television but also tried to prevent from being published and distributed, are the efforts of the Trump administration and congressional leadership to bypass the Fourth Amendment to the Constitution.

Here is the back story.

After the excesses of the Watergate era, during which the Nixon administration used the FBI and the CIA unlawfully to spy without warrants on the president’s real and imagined domestic political opponents, Congress passed the Foreign Intelligence Surveillance Act. FISA prohibited all domestic surveillance except that which is pursuant to warrants signed by federal judges.

The Fourth Amendment — which guarantees privacy in our persons, houses, papers and effects — permits the government to invade that privacy only when a judge has signed a warrant that authorizes surveillance, a search or a seizure. And judges may only issue warrants when they have found probable cause to believe that the government surveillance or invasion of the target’s privacy will produce evidence of criminal behavior. The Fourth Amendment further requires that the judicial warrant describe specifically the place to be searched or the person or thing to be seized.

All these requirements are in the amendment so as to prevent any court from issuing general warrants. Before the Constitution, general warrants were issued by British courts that met in secret in London. They were not issued based on probable cause of crime but issued based on the government’s wish to invade the privacy of all Americans living in the Colonies to find the more rebellious among them. This was the king and Parliament’s version of protecting national security.

General warrants did not describe the place to be searched or the person or thing to be seized. They authorized the bearer — usually a British soldier physically located in the Colonies — to search where he wished and seize whatever he found.

FISA did not interfere with the standard understanding or use of the Fourth Amendment by the government and the courts. But it did add another way for the government to invade privacy when its wish is to surveil people for national security purposes — a return to general warrants — as opposed to solely gathering evidence of crimes.

The FISA-created procedure, enacted in defiance of the Fourth Amendment — which makes no distinction between government evidence gathering and government intelligence gathering — permits a secret court in Washington to issue general warrants based on the government’s need to gather intelligence about national security from foreigners among us. It pretends that the standard is probable cause of foreign agency, but this has now morphed into the issuance of general warrants whenever the government wants them.

Since 1977, the Foreign Intelligence Surveillance Court has issued well over 99 percent of the warrants that the government has requested. And these warrants do not specifically describe the place to be searched or the person or thing to be seized. A typical FISC-issued warrant authorizes government surveillance on all landlines, mobile devices and desktop computers in a given area or ZIP code. One infamous FISC-issued search warrant permitted the feds to surveil all Verizon customers in the U.S. — in excess of 115 million people — without any evidence of crime or even suspicion about any of them.

Now back to the Trump administration’s work below the radar. Even in the fresh aftermath of 9/11, when the government’s respect for constitutional norms was at a lamentably low point, the government interpreted the Fourth Amendment as requiring the government to separate its intelligence functions from its law enforcement work. The government recognized that its trigger for mass surveillance — namely, looking for a foreign agent among the populace — was a far lower standard than probable cause of crime, which is what the Fourth Amendment requires.

Today, the federal government’s computers are permanently connected to the mainframes of all telecoms and computer service providers in America, so the spying is in real time. Today, the federal government employs more than 60,000 domestic spies — one spy for every 5,500 Americans. Today, if any of them come across evidence of crimes while listening to your telephone calls or reading your texts or emails ostensibly for intelligence purposes, there is little they can do about it.

Until now.

Now, hidden beneath the “Fire and Fury” controversy is the muffled sound of the Trump administration and Republican congressional leaders plotting the enactment of an addition to FISA that would permit the use of evidence of crimes in federal court even when it is discovered during mass surveillance authorized by general warrants.

If enacted, this radical, unconstitutional hole in the Fourth Amendment would bring the country full circle back to the government’s use of general warrants to harass and prosecute — general warrants so odious to our forebears that they took up arms against the king’s soldiers to be rid of them.

I am surprised that President Donald Trump supports this. He has himself been the target of unlawful foreign surveillance and unconstitutional FISC-authorized domestic surveillance. “Fire and Fury” even quotes former British Prime Minister Tony Blair warning a newly elected Trump about this. And now he wants to unleash upon us all the voracious appetite for surveillance that was unleashed upon him and prosecute us for what is found, the Constitution be damned.

Whatever happened to the public promise to preserve, protect and defend the Constitution as it is written? That’s in the oath all in government have taken. That is the oath that the president and his Republican allies reject.

Copyright 2018 Andrew P. Napolitano. Distributed by

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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