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The litigation brought by Stormy Daniels against Donald Trump has had its day of reckoning. The adult-film star who sued the president for defamation not only lost a portion of her lawsuit but was ordered to pay the president’s legal bills. All this was a resounding victory for the freedom of speech.

After the right to life, protected by the Fifth and 14th amendments, and the right to be left alone, protected by the Fourth, the freedom of speech, protected by the First, is our most cherished. James Madison, who drafted the Bill of Rights, was careful to refer to speech as “the” freedom of speech so as to underscore the Framers’ unambiguous belief that free speech is pre-political. Stated differently, it existed before the government did and thus did not come from the government. As it does not originate in the government, Madison and company believed it originates in our humanity.

Earlier this week, a federal judge in Los Angeles ruled that Daniels’ efforts to use the courts to punish the president for his exercising the freedom of speech were frivolous.

Here is the back story.

Daniels claims that she and Trump had a consensual sexual encounter in a Lake Tahoe hotel room in 2006, shortly after Trump’s youngest son, Barron, was born. On CBS’ “60 Minutes” program, she told Anderson Cooper of the sexual experience in vivid and graphic detail. Trump has denied many times that he had a sexual encounter with Daniels.

Daniels also told Cooper that she had been with Trump in public after their encounter, and she produced a photo of them together in a public place. She then told him that after she and Trump had ended their friendship, a stranger approached her in the parking lot of a Las Vegas fitness center and threatened to harm her if she failed to keep the existence of her relationship with Trump quiet.

She even produced a sketch of a man she said depicted the person who threatened her. In the same interview, she revealed that Michael Cohen, then Trump’s personal lawyer and today a government witness against him, paid her $130,000 to remain quiet about her alleged affair with Trump, and she accepted the money and agreed to stay quiet.

Trump wasn’t having any of this. He tweeted that the depiction of the man Daniels claimed threatened her bears a striking resemblance to her former husband and that she had made up the story of their sexual encounter, as well as the story of the parking lot threat. He called the version of events she gave to Cooper a “con job.”

While Daniels’ back-and-forth with Trump was going on, her lawyers filed litigation in federal court seeking to invalidate the nondisclosure agreement she signed with Cohen and accusing Trump of defamation when he said she had pulled off a con job. On Monday of this week, at Trump’s request, a judge dismissed the defamation claim.

Bad cases often make good law, and this is one of them. Whether one believes Daniels or Trump about what may have happened in a Lake Tahoe hotel room 12 years ago, one can appreciate the free speech values at play here. The Bill of Rights in general — and the First Amendment in particular — articulates negative rights. Stated differently, the First Amendment doesn’t grant the freedom of speech (we know that from Madison’s use of the word “the” preceding the word “freedom”); rather, it negates the ability of the government, which includes the courts, to infringe upon speech.

The “free” in “free speech” means free from government infringement. So, if Daniels calls Trump directly or by implication an adulterer on national television, he can take to Twitter to proclaim that she has perpetrated a con job — and he can do so with impunity.

The failure of the courts to protect Trump’s right to challenge his accuser’s veracity in public — or the use of the courts to attempt to intimidate Trump from proffering that challenge by making him pay for it — would have constituted an infringement by the government of Trump’s free speech rights.

Sending a signal that there was no legal basis to claim that “con job” in reply to “adulterer” was defamatory and unwilling to be the instrument through which speech — even the rough-and-tumble variety Trump often employs — could be punished, deterred or infringed upon by the government, the court found Daniels’ defamation claim to be frivolous. She and her lawyers ought to have known the defamation claim would not prevail, and thus she or they (at this writing, it is unclear who) were ordered to pay the legal bills Trump incurred for defending the defamation claim.

The United States has a long and storied history with the freedom of speech. The same generation that ratified the First Amendment — in some cases, the same human beings — also enacted the Alien and Sedition Acts, which prohibited speech defamatory of the government. Thomas Jefferson pardoned all who were convicted under this dreadful and unconstitutional law, including a member of Congress. Yet Abraham Lincoln, Woodrow Wilson and Franklin Roosevelt all punished dissenters for the anti-war speech they uttered in wartime, and they got away with punishing them.

But since a unanimous opinion in 1969 involving hateful words uttered by a Ku Klux Klansman, the Supreme Court has held that all innocuous speech is absolutely protected from government interference and that all speech is innocuous when there is time for more speech to challenge or rebut it. This has led to our robust modern jurisprudence, which declares that individuals decide for themselves what to say and hear. The government does not decide for us.

In America, it may take a tawdry tale of sex in a hotel room to bring these values to light.

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

 
• Category: Ideology • Tags: Donald Trump, Free Speech 
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What if the whole purpose of an independent judiciary is to be anti-democratic? What if its job is to disregard politics? What if its duty is to preserve the liberties of the minority — even a minority of one — from the tyranny of the majority? What if that tyranny can come from unjust laws or a just law’s unjust enforcement?

What if we have a right to insist that judges be neutral and open-minded rather than partisan and predisposed to a particular ideology? What if presidential candidates promise to nominate judges and justices who they believe will embrace certain ideologies?

What if history shows that Supreme Court justices appointed by Democratic presidents typically stay faithful to their pre-judicial ideologies? What if history shows that justices appointed by Republican presidents tend to migrate leftward, toward the middle of the ideological spectrum? What if some Republican-appointed justices — such as Sandra Day O’Connor, Anthony M. Kennedy and David Souter — migrated across the ideological spectrum so far that they became pillars of the high court’s abortion jurisprudence even though the presidents who appointed them publicly expected the opposite?

What if the real business of judging is interpreting words in the Constitution and federal statutes? What if there is no ideologically neutral way to do that?

What if one theory of constitutional interpretation — espoused by people who say we have a “living Constitution” — informs that the words written decades or centuries ago should be interpreted and understood in accordance with their ordinary meaning today? What if this theory lets judges decide what those words mean today?

What if the opposite theory of constitutional interpretation — called “originalism” — informs that the meanings of words in the Constitution and federal statutes were permanently fixed at the time of their enactment? What if this theory binds judges to well-grounded historical meanings of words and the values they express? What if there is no reconciliation between these two theories of constitutional interpretation? What if judges and justices must choose one or the other or variants of each?

What if the Constitution proclaims itself to be the supreme law of the land? What if that means that all laws and presidential prerogatives that are contrary to the Constitution are unconstitutional and the courts before which those laws and prerogatives are challenged have a duty to declare them unconstitutional?

What if judges and justices — when confronted with laws they like that are clearly unconstitutional — often find creative ways to uphold those laws? What if that is not what judges and justices are supposed to do but they do it anyway?
What if the Fourth Amendment to the Constitution prohibits searches and seizures by the government without a search warrant issued by a judge and based on probable cause of a crime? What if that amendment also requires that all search warrants issued by judges specifically describe the place to be searched and the person or thing to be seized?

What if the Supreme Court has consistently held that surveillance constitutes a search under the Fourth Amendment? What if the British practice of spying on colonists was one of the forces that animated the Fourth Amendment?

What if the Foreign Intelligence Surveillance Act of 1978, the Patriot Act and their various amendments authorize federal courts to issue warrants that are not based on probable cause of a crime and authorize warrantless surveillance for intelligence-gathering purposes? What if the George W. Bush, Barack Obama and Donald Trump administrations have taken the extreme position that these laws permit warrantless surveillance on everyone in America, even those who are not suspected of wrongdoing?

What if this warrantless surveillance has subjected every person in America to the loss of rights protected by the Fourth Amendment? What if the Supreme Court has characterized the principle of those rights as being among the highest-protected by civilized society — namely, the right to be left alone?

What if a young lawyer who helped to write the Patriot Act in 2001 and its amendments in 2005 and who advised President Bush that he could spy on all people all the time was rewarded for that work with a lifetime appointment to the federal appeals court in Washington, D.C.?

What if this same lawyer, by now a federal appellate judge, was confronted with a case in which the feds had spied on Americans in blatant violation of the Fourth Amendment? What if this judge was publicly committed to originalism — which informs that the Fourth Amendment prohibits (SET ITAL) all (END ITAL) warrantless surveillance of people in America, no matter its purpose?

What if this judge employed linguistic acrobatics in ruling on this conflict between domestic warrantless surveillance — which he advised a former president was constitutional — and the original meaning of the Fourth Amendment, which he knew bars government spying without warrants?

What if this judge — claiming a loyalty to originalism but nevertheless embracing its opposite, the concept of a “living Constitution” — ruled that the feds can spy without warrants on anyone at any time, as long as they do so for intelligence-gathering and not law enforcement purposes? What if this intelligence-gathering exception to the Fourth Amendment exists only in this judge’s mind and not in the Fourth Amendment itself? What if the Patriot Act permits the sharing of intelligence data with law enforcement? What if in this judge’s mind, every bit of data on your mobile device or computer — financial, legal, medical, personal, professional, intimate — is available for government surveillance on a whim and without a search warrant?

What if that judge just joined the Supreme Court? What if his perverse views of privacy and the Fourth Amendment were never discussed at his confirmation hearings but his adolescent drinking habits and sexual proclivities were? What if it is too late to preserve, protect and defend the Constitution? What do we do about it?

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

 
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Harsh winds are blowing on Capitol Hill. The hoped-for and feared clash between Judge Brett M. Kavanaugh and his principal accuser, Dr. Christine Blasey Ford, has come and gone, with all of its calculated and spontaneous outbursts, as well as gut-wrenching emotion.

Dr. Ford subjected herself to the public humiliation of revealing an intimate and horrific event, and she did so with grace and credibility. Judge Kavanaugh subjected himself to absurd questions about his youth, and he offered compelling denials with ferocity and indignation.

At the end of the Ford testimony, it seemed Kavanaugh was at the bottom of a pit. At the end of his testimony, it seemed he had climbed out. His denials of having sexually assaulted Ford 36 years ago lacked the dignity and impartiality that the law requires of federal judges, but his anger and political accusations were understandable for a man who believes he has been falsely accused in such a way as to taint his reputation for the rest of his life.

Whom should we believe?

In this setting, there were few rules and no burdens of proof. Ford surely did not prove that a youthful Kavanaugh assaulted her, and Kavanaugh surely did not disprove it. But the setting was not a court of law. It was a political setting utilizing legal tools — taking oaths to tell the truth, confronting one’s accuser, being subjected to cross-examination — the goal of which was to create a general impression of believability. In that respect, both Ford and Kavanaugh succeeded.

Then a strange series of events happened.

After all interrogations were completed and after all Senate Judiciary Committee members made public statements, the committee voted along party lines, 11 to 10, to recommend sending Kavanaugh’s nomination to the floor of the Senate.

This was only a symbolic vote, because committee approval is not required under Senate rules as a precondition for a full Senate vote. Then the committee voted by consensus to ask the White House to dispatch the FBI to reopen its background investigation of Kavanaugh for seven days.

It is quite simply unprecedented and unheard of for the Senate Judiciary Committee to ask for FBI agents to investigate a nominee after he has testified about the subject of the investigation and after the committee has approved his nomination. If the new FBI investigation is a genuine search for evidence, there should be no time limit imposed. What will the committee do if the FBI finds evidence of unworthiness for office or if it needs more time? Will the committee reopen hearings and take another meaningless vote?

This is a perilous investigation for Judge Kavanaugh because he has already testified under oath about the subjects of the investigation. It would have been fairer to all involved had the FBI been called in before last Thursday’s testimony as was done in the similar Anita Hill/Clarence Thomas episode in 1991.

In his testimony, Kavanaugh gave the clear impression to the Senate Judiciary Committee that in his youth he was not a heavy drinker who became belligerent or who blacked out. Drinking to excess and becoming belligerent or somnolent after drinking in one’s youth are, of course, not criminal acts unless someone is harmed thereby.

However, lying about any of this under oath can constitute perjury, and giving a false impression about any of it to Congress or to congressional investigators — even if one’s words are literally accurate — can constitute the independent crime of misleading Congress.

If the FBI finds credible evidence to substantiate perjury or misleading Congress by Kavanaugh, his nomination and his current tenure as a federal judge are doomed.

And the FBI will dig. Its agents have legal responsibilities and ethical obligations that transcend instructions given to them by their superiors. If agents come upon evidence of crimes, they are required to pursue the evidence, no matter the time consumed or the political consequences.

Why is this nomination the subject of such rancor?

I have argued countless times that the federal government has grossly exceeded the limitations the Constitution imposes on it. Wherever you are as you read these words, look around you and try to find something in your line of sight that is not regulated by the federal government. It will be nearly impossible. Today the feds regulate not only our personal private behavior but also the states that created the federal government. More than half of each state’s budgetary expenditures are mandated by the feds.

And passing final judgment on all this — ratifying the Wilsonian view of the federal government (the feds may do whatever there is a political will to do, except that which the Constitution expressly prohibits) and eschewing the Madisonian view (the feds may do only what the Constitution expressly authorizes) — is the Supreme Court.

As the reach of federal power has expanded, the power of the Supreme Court to restrain or unleash that reach has expanded. Add to this the life tenure of Supreme Court justices and the mania for re-election of members of Congress and you can recognize the slow transfer of governmental power from the elected branches to the unelected one.

Should the right to life and the extent of the imperial presidency and whether the government is obligated to provide health care be decided by elected representatives or by the Supreme Court? From those who expect the high court to decide these issues — a court now evenly split, 4 to 4, along ideological lines — is it any wonder the Kavanaugh nomination is worth a bitter battle?

The Supreme Court should not be political. It is the anti-democratic branch of government. Its constitutional obligation is not to do the people’s will but to preserve personal liberty from the tyranny of the majority.

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

 
• Category: Ideology • Tags: Supreme Court 
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Until two weeks ago, President Donald Trump’s nomination of Judge Brett Kavanaugh to a seat on the U.S. Supreme Court seemed a sure thing. He ably handled more than 1,200 questions put to him by members of the Senate Judiciary Committee. He demonstrated even to his adversaries a masterful command of constitutional jurisprudence. The FBI had completed six background investigations of Kavanaugh throughout his career in government, and it found no blemishes.

Trump promised that he would appoint federal judges and justices who generally share his views on life, guns and administrative regulations and who have a minimalistic view of federal power. When he announced the Kavanaugh nomination, it appeared he had found his man.

The nomination requires Senate confirmation by a majority vote. The Senate currently has 51 Republicans and 49 Democrats. A few Republican senators do not share the president’s stated views on the judiciary, and a few Democrats do. The inside consensus was that enough Democratic senators running for re-election in states that Trump carried in 2016 would vote to confirm Kavanaugh and those Democrats would handily offset the few Republicans who might oppose him.

During his confirmation hearings, Kavanaugh dutifully followed the pattern of all current sitting justices at their confirmation hearings by declining to answer hypothetical questions which sought answers as to how he might vote on certain issues likely to come before the court. He survived the grueling cross-examination by Committee Democrats and even won begrudging praise from a few.

Then, Sen. Dianne Feinstein, a Democratic member of the Judiciary Committee, dropped a bombshell.

She revealed that a constituent who wished to remain anonymous had written a letter to a member of the House of Representatives, who had turned the letter over to Feinstein. The letter contained allegations by the writer, Dr. Christine Blasey Ford, that Kavanaugh had drunkenly attempted sexual assault against her 36 years ago. Feinstein had the letter for two months before she revealed its existence — a week after the Kavanaugh confirmation hearings had ended.

This is reminiscent of allegations leveled by Professor Anita Hill against then-Judge Clarence Thomas, though those allegations were of inappropriate words in the workplace and the Ford allegations are of force and violence in a bedroom. When Hill’s allegations were published, President George H.W. Bush dispatched the FBI to resume its background investigation of Thomas, and it did so.

Trump has declined to dispatch the FBI to investigate Ford’s allegations, and other allegations that have now followed hers, because he and Senate Republicans are determined to seat Kavanaugh by next week.

In the absence of an FBI investigation, Ford gave an interview to The Washington Post in which she aired her complaints in graphic detail, despite missing facts and fuzzy recollections. Democrats demanded that the Judiciary Committee hear from her and again from Kavanaugh. They appear to be assuming that Kavanaugh should not enjoy the American presumption of innocence and — without hearing a word from Ford or seeing any corroborating evidence – have concluded that Kavanaugh must be guilty of this alleged offense and thus cannot be confirmed.

Then the folks in the White House who are managing the Kavanaugh nomination advised him to violate Criminal Procedure 101: Don’t deny publicly an allegation before it has credibly and publicly been made. So, Kavanaugh was interviewed by my Fox News colleague Martha MacCallum. Her questions were far better than his answers.

His answers to the allegations contained in a newspaper story were three-fold — he didn’t do it, he wants a fair process and — unthinkably — he was a virgin during his high school and college years. I say “unthinkably” not because virginity is beyond belief but because this claim was not in response to any of MacCallum’s questions and it bore so deeply into Kavanaugh’s personhood as to be none of the public’s business. And it is not a defense to the Ford allegations.

What’s going on here?

What’s going on is crisis and panic. The pro-choice Democrats are in crisis: They are so fearful of a decisive vote to limit the Supreme Court’s abortion jurisprudence that they are willing to destroy a qualified judge’s career to block his advancement. And Kavanaugh’s handlers, who, at this writing, probably lack the votes for confirmation, have recklessly put him on the offensive, even if it is debasing and invasive.

Now we await a potentially tragic confrontation on national television between Ford and Kavanaugh, which will come down to perception rather than reality. The issue is not whether he did it. Rather, it is whether his denials are more believable than her allegations. At the end of their Judiciary Committee confrontation, will the general public perception be that Ford was more credible or that Kavanaugh was more credible?

There are no rules here. Ford has no legal obligation to prove her allegations, and Kavanaugh has no legal obligation to disprove them.

A tie — the public perception that Ford and Kavanaugh are equally credible — will be very troublesome for Kavanaugh. No woman would go through what Ford is going through if she lacked a personal commitment to the truth. So Kavanaugh can only win if Dr. Christine Ford is generally disbelieved.

The Kavanaugh nomination was supposed to be Trump’s gift to his pro-life, conservative, evangelical base. It has become anything but that. If Judge Brett Kavanaugh is confirmed, will he ever lose the taint of these allegations? If he is not confirmed, can he return to the second-highest court in the land, on which he now sits? Is this how the framers expected the selection process for the Supreme Court to play out? In a word: No.

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

 
• Category: Ideology • Tags: Supreme Court 
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If you have been following the serious destruction brought about by Hurricane Florence in North Carolina and the political turmoil caused by the allegations of teenage sexual misconduct made by Dr. Christine Blasey Ford against Judge Brett Kavanaugh, along with his firm and unbending denials, you might have missed a profound event in a federal courtroom in the nation’s capital late last week.

The Florence damage may take years to repair, and the Kavanaugh nomination to the U.S. Supreme Court, which once seemed assured, at this writing is in a sort of limbo, pending an Anita Hill/Clarence Thomas-like confrontation before the Senate Judiciary Committee next week. But when Paul Manafort, President Donald Trump’s one-time campaign chair, entered a guilty plea in federal court last week, it created the potential for a political earthquake.

Here is the backstory.

Manafort was indicted by two federal grand juries — one in Arlington, Virginia, and the other in Washington, D.C. — for financial crimes committed before and during his time running the 2016 Trump presidential campaign. Both prosecutions have been led by Robert Mueller, the Department of Justice-appointed special counsel charged with investigating whether there was a conspiracy between the Trump campaign and people working for the Russian government.

Often, when prosecutors are looking for evidence of crime A, they find evidence of crime B. This is what happened to Manafort. Yet, as the trial judge said in Manafort’s Virginia trial last month, which ended in convictions on 8 of 18 charges, the feds were indeed looking for evidence of crime B as well. We all know that the principal reason for pursuing Manafort on financial crimes has been to squeeze him for what he knows about Trump.

Last week, on the eve of Manafort’s second trial, that prosecutorial strategy paid off when he entered a guilty plea before a federal judge in Washington, D.C. Manafort’s guilty plea is unique and extraordinary. In the plea, Manafort, who only pleaded guilty to two federal crimes — witness tampering and conspiracy to defraud the government — also admitted that he committed dozens of other federal and state crimes.

This was intentionally maneuvered by Mueller as part of the plea agreement so as to make it bulletproof from a presidential pardon. I have never seen this before. The president can only pardon federal crimes. Should he do so for Manafort, state prosecutors in New York, Virginia and California — the states where these crimes (mainly bank fraud) to which Manafort admitted under oath actually took place — can seek indictments immediately. It will be easy to indict and easy to convict Manafort because of his public admissions last Friday.

The pattern of crimes to which Manafort admitted but for which he did not plead guilty is breathtaking. It involves tens of millions of dollars, the highest-ranking former government officials in the Ukraine, an unnamed Obama Cabinet member and a few Russian oligarchs. The only good news for Trump in all this is that he and his Republican congressional colleagues will be spared the daily barrage of negative headlines from a second Manafort trial, which was scheduled to start this week and which would have led up to the midterm elections, had it not been aborted by the guilty plea. But the president surely fears a beast in the night in the form of whatever Manafort privately tells Mueller.

The plea agreement — all 117 pages of it — does not spell out what evidence Manafort gave Mueller to persuade him to agree to cap Manafort’s prison time exposure at 10 years when he could have gotten 60. But it does spell out Manafort’s willingness and now legal obligation to assist Mueller.

We know that Manafort’s personal offer of assistance to Mueller took place over the course of two days of negotiations on Monday and Tuesday of last week. That type of meeting, during which Manafort tipped his hand as to what evidence he could give Mueller about Trump, has been called a “Queen for a Day” by federal prosecutors and FBI agents because the defendant gets to say whatever he wants and if the negotiations fail to produce a deal the feds cannot use what the defendant has told them. The meeting obviously intrigued and excited Mueller’s team, and hence a deal was struck.

What did he tell them?

Manafort was present at the July 2016 Trump Tower meeting between campaign officials and Russian intelligence agents, and he made notes. He was present at the preparatory meeting for that Trump Tower meeting. He can probably explain the circuitous and mysterious route of Russian money transfers that followed the Trump Tower meeting. He can explain the 80 times the campaign was in contact with the Russians while he was the campaign chair, and he probably knows if Trump personally knew of the Trump Tower meeting in advance and of any agreements made there.

Stated differently, Manafort can help Mueller paint the Trump Tower meeting and whatever followed it as an agreement by the campaign to accept something of value from a foreign entity, even if the thing of value never arrived: That would be a criminal conspiracy, which my media colleagues call “collusion,” a non-legal term. Manafort can also inform Mueller of his financial deals with Trump that preceded Trump’s candidacy, at least one of which involved Russian money.

The president’s lawyers have shrugged off the Manafort guilty plea as unrelated to the president. This is false bravado for public consumption only, and I don’t blame them for it when their client is the president. But if their client has been candid with them, then they can prepare for the Manafort bombshells that are coming.

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

 
• Category: Ideology • Tags: Donald Trump, Russiagate 
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Last week, The New York Times published a scathing critique of Donald Trump — the man and the president. The Times said the critique was written by a senior Trump administration official who insisted on remaining unnamed. This bitter and harsh editorial, which portrays the president as dangerous to the health of the republic and his White House as slouching toward dysfunctionality, has understandably infuriated him.

Trump first accused the Times and its unnamed writer of treason, and then he publicly asked for a Department of Justice investigation to find the writer. Then, to change the subject, he threatened to declassify documents submitted to the Foreign Intelligence Surveillance Court in 2016 — before he was president — that he believes were used to commence the Robert Mueller-led investigation of his presidential campaign.

I am deeply disappointed that the president uttered the word “treason.” This is wrong under the law and a dangerous charge to make. The Times op-ed is protected political speech and personal opinion. Treason is the only crime defined in the Constitution, thereby preventing Congress and the courts from changing its meaning. It consists only of either waging war against the United States or any of the states or providing aid and comfort to those who are waging such a war.

The president should know that it is nearly impossible to commit treason by expressing an opinion. Even calling for a Nazi victory over the U.S. during World War II — as hateful and harmful as such speech was — constituted protected speech and was hardly treasonous.

Preventing a repeat of the long, sordid, barbaric history of treason prosecutions by British monarchs for the expressions of political, personal or trivial opinions about the Crown or the government (Henry VIII once ordered that it was treasonous to make eye contact with him in public, absent his overt invitation) is the basis for its strict constitutional definition.

The DOJ investigates criminal acts, not workplace disputes or government leaks of unclassified materials. Had the unnamed Times writer revealed classified materials, there would be a basis for a DOJ investigation, but the president’s torment cannot form the basis for one. However, that does not bar the president’s lawyers from conducting their own investigation, as the president is surely entitled to senior administration officials who share his goals, confidence and secrets.

The Foreign Intelligence Surveillance Act needs more than exposure; it needs extinction. I have been arguing for 40 years that FISA is unconstitutional. The Fourth Amendment protects the privacy of everyone in the U.S., and it establishes firmly that personal privacy may be pierced by the government only when it has demonstrated to a judge the existence of probable cause of a crime.

Probable cause requires a demonstration under oath that piercing the privacy of a target would more likely than not produce evidence of a crime. And the search warrants signed by judges must “particularly describ(e) the place to be searched, and the persons or things to be seized.”

FISA established a lesser standard for piercing personal privacy — probable cause of communicating with a foreign person (originally an agent of a foreign government, now just any foreign person). That standard — though unconstitutional — is obviously easier to achieve than probable cause of a crime.

As well, FISA warrants, many of which permit the bearer to look at and seize vast data, unleash the bearer without particularly describing the places to be searched or the persons or things to be seized. One FISA warrant I saw authorized telephone surveillance of all Verizon customers — all 115 million of them — without naming any.

FISA is not only unconstitutional because of its defiance of the Fourth Amendment but also extraconstitutional, because it sets up governmental procedures and even a government court that operate outside the Constitution.

Because it is so much easier to get a FISA search warrant than it is to get a search warrant based on probable cause, many FBI agents cannot resist the temptation to portray their mission as an intelligence one rather than a law enforcement one and get a warrant from the FISA court instead of one from a federal court that follows the Fourth Amendment.

FISA court records are so secret that the judges on the court cannot access them. The judges surrender their mobile phones and all writing materials when they enter their courthouse in D.C. and are frisked when they leave. No transcripts of courtroom dialogue are kept.

I have criticized FISA court judges by characterizing them as clerks. Indeed, any court that grants 99.97 percent of warrant applications, that does not require probable cause of criminal activity as a basis for a warrant and that does not comply with the specificity requirements of the Fourth Amendment is not a court of thinking, liberty-protecting judges faithful to the Constitution. It is a gaggle of clerks.

Much of what the FISA court sees is raw intelligence — transcripts of conversations and personal data such as health, legal and financial records intercepted by intelligence agents. In some cases, the court sees boring nonsense. In some cases, it sees data that agents have risked their lives to obtain.

The president needs to know that the revelation of raw intelligence data — which would be portrayed in the media as being revealed for personal or political gain — would strike at the heart of the work of some in the intelligence community and that they might strike back.

The president also needs to be reminded of his oath to uphold the Constitution — which includes the rule of law. The United States is the freest and most prosperous country in history. But without the rule of law and its respect for constitutional fidelity, personal liberty, private property and legal norms, the U.S. would be just a beautiful piece of real estate.

Copyright 2018 Andrew P. Napolitano.

Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump, FISA 
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Last week, I was intrigued by all the fanfare attendant upon the national farewell to the late Sen. John McCain. I have written in this space that McCain and I were friends who spoke many times, but generally only about the issues upon which we agreed — abortion, immigration and torture.

On those issues, he often stood at odds with most of his Republican colleagues in the Senate. They are opposed to abortion in name only (they will not lift a finger to stop or slow it), prefer judging the moral worth of individuals on the basis of where they were born, and think that torture is wrong unless the victim is a bad guy or a foreigner or has information the government wants.
Moral relativism is the coin of their realm.
On those issues, McCain stood steadfast, no matter the political or personal consequences. For that steadfastness, and with respect to those issues, his behavior was heroic. A hero does not lack fear. He or she proceeds into its face nevertheless, heedless of the consequences to self.

For reasons he has never adequately explained, President Donald Trump rejected McCain’s heroism and mocked McCain’s time of torment in a North Vietnamese prison. That mockery was brought to full measure at McCain’s funeral by the senator’s daughter, my friend and former Fox News colleague Meghan McCain. She told the members of the Washington establishment who had gathered, sans the president, at her father’s funeral at the Washington National Cathedral — why the federal government founded a cathedral is another question for another time — that her father manifested greatness and that Trump manifests cheapness.

Then the two men who each in his own way personally stopped McCain’s efforts to become president — George W. Bush in the Republican primaries in 2000 and Barack Obama in the general election in 2008 — delivered similar accolades of McCain, complete with veiled rebukes of Trump.

On its face, the audience in that government-founded church, establishment to the core, was adoring McCain’s memory and mourning his loss. But the establishment is filled with hypocrites.

This is the same establishment that gave us the unguarded borders and airways of 9/11 and blamed its failures on foreigners. It gave us the useless, fruitless wars in Iraq and Afghanistan and the human and monumental destruction they wrought.

It gave us the secret torture of foreign captives and their indefinite incarceration without trial. It gave us warrantless spying on innocent Americans — at first in secret and then openly and under color of law — in direct defiance of the Fourth Amendment. It gave us the 2008 financial crisis, which it cured by borrowing billions of dollars and giving the money to those who had caused it. And — as if all that were not enough — it gave us a $13.5 trillion collective increase in government debt during the Bush and Obama years and the secret but repetitive use of drones to assassinate foreigners and Americans overseas.

Has any of this enhanced your life, liberty or property?

As much as I appreciated the kind words about my late friend and the polite reception those words received, it made me think about how dangerous to life, liberty and property the government has become, how unfaithful to the Constitution have been those in whose hands we have reposed it for safekeeping and how unashamed of their misdeeds are those who have caused all this.

Nearly all of the present assaults to liberty can be laid at the feet of the Republicans and Democrats who were sitting in that government-founded church in the nation’s capital and listening to the praise of John McCain.

But that establishment crowd also gave us another event it would rather forget and for which it will never accept blame or claim credit — the election of Donald J. Trump as president of the United States. He ran as the anti-establishment candidate, and he ran against the collective mindset of those proud of themselves in that “national” church. He condemned the wars they caused. He mocked their borrowing and spending. He attacked the secretive mindset of their intelligence and law enforcement communities. And the voters rewarded him.

Yet he, too, uses drones and missiles to kill and does so in foreign lands without any declarations of war. He, too, has borrowed money and spent it at nearly a wartime rate. And he, too, has continued the spying on innocent Americans. In those respects, he has become what he condemned — the government establishment proud of itself sitting in a government-founded church.

Add to this, he has mocked the rule of law, praised those charged with and convicted of violating it, tormented those charged with enforcing it, distorted tales about his personal behavior, and wreaked havoc on innocent farmers by making the sale of their goods too expensive for foreign consumers.

His presence was in that church as powerfully as if he had physically been there.

The bitterness about Trump was silently expressed by those who brought him to power and now cooperate with his behavior or pretend that they don’t. The mindset of the establishment continues to be that the government can right any wrong, regulate any behavior, borrow and spend any amount of money, and build a church in utter defiance of the First Amendment, the Constitution — which is supposed to limit the government, not unleash it — be damned.

So, who caused more harm to the republic, McCain and his admirers or Trump and his enablers? Republicans or Democrats? Is there a difference?

Ultimately, we are responsible for the folks we have elected and the things they have done, whether secretive, hypocritical or in our faces. Ultimately, we have the government we deserve. Will we change this before it is too late?

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

 
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About four years ago, I was browsing through one of Manhattan’s last remaining independent bookstores, when my cellphone rang. I didn’t recognize the incoming telephone number, with its 202 area code, but I assumed it was a Fox News colleague from our Washington bureau.

When I answered the phone, a somewhat familiar but somber voice said: “Judge Napolitano, your reward for what you did today will not come from your colleagues or viewers or even on earth but in heaven.”

What had I done to deserve this?

Earlier that day, Dianne Feinstein, a Democrat from California who was then the chair of the Senate Intelligence Committee, had defied her own committee members, congressional leadership from both houses of Congress and from both political parties, officials of the CIA, and even the Obama White House when she released on the floor of the Senate a 6,000-plus-page report detailing the use of torture by CIA officials in the George W. Bush administration — all of it unlawful.

She actually made the report public while physically standing on the floor of the Senate, where her speech is absolutely protected from government retaliation by the Speech and Debate Clause of the Constitution.

That clause recognizes and protects for members of Congress their complete freedom of speech while on the floor of the House or Senate, while doing congressional work and while traveling to Capitol Hill. Thus, even though she revealed top-secret materials in the report — which, if you or I had revealed them or if she had revealed them in Los Angeles rather than in Washington, would have constituted the crime of espionage — she was immune from all prosecution.

In response to the Feinstein revelations, my Fox News colleague and friend Shepard Smith and I spent about 30 minutes on-air that afternoon on his Fox News Channel show discussing the criminal behavior Feinstein had revealed, the constitutional protections she, as a member of the Senate, enjoyed, and the political firestorm she had courageously ignited.

As a believer in the rule of law and the bodily integrity of all people, I was full of praise for what Feinstein had just done. When the government breaks the laws it has sworn to uphold, Shep Smith and I argued, the people have a right to know about it.

But many of Sen. Feinstein’s colleagues did not see it that way. Many of those who never endured torture and those believing that the end justifies the means accepted the myth that torture works — that the victim tells the truth; and in their view, obtaining the truth is worth the cost in lawbreaking and body-breaking.

Only one Republican senator publicly supported what Feinstein had just done. He was my caller that afternoon in the bookstore, John McCain.

I thought of his call and our many ensuing conversations when I learned of his death this past weekend, a few days shy of his 82nd birthday.

McCain and I had hundreds of conversations. He knew that I knew that he was a bellicose warmonger and an uncritical supporter of unlimited military spending; and he was often indifferent to the consequences of those views.

But he was also the victim of prolonged and horrific torture during the Vietnam War, which he could have avoided. He told me many times that torture so distorts the mind that the victim’s consequent speech is utterly unworthy of belief.

He had become the leading congressional critic of torture, the prime congressional mover of making it all unlawful — the Bush Department of Justice notwithstanding, it already was unlawful at the time Bush ordered it — and one of the few Americans anywhere who could speak on this detestable subject from the personal experiences of a victim.

Platitudes aside, the essence of the telephone conversation we had that day was that Bush had committed war crimes; that torture is absolutely prohibited by the Constitution, several treaties to which the United States is a party and numerous federal statutes; and that Sen. Feinstein had performed a positive public good by revealing it.

It was Sen. McCain’s view that even if he was powerless to prevent government lawbreaking, it is better for the American people to know painful truths than to remain in the dark.

Shortly after our phone conversation, McCain went to the floor of the Senate and delivered one of his classic tirades against torture. In it, he attacked President Bush, who ordered and authorized it, and President Barack Obama, who covered it up.

This week, those two former presidents. firmly in McCain’s crosshairs four years ago, are each delivering a eulogy at McCain’s funeral — willingly, dutifully and at his request.

The John McCain I knew discussed only torture, the right to life, and immigration with me — perhaps because he knew we disagreed on nearly all other matters. But this tough old Arizona bird, this lifelong warrior, this unorthodox maverick who really was neither a Republican nor a Democrat, knew how to keep friends and monitor enemies.

He was a multidimensional man in a secular era, and he was not happy about America at the end of his days.

Yet in this age of few heroes, and on topics that intimately touch the human heart and soul, he was the genuine article.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here is the back story.

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

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

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

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

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

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

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

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

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

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

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

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

 
• Category: Ideology • Tags: Donald Trump, Russia 
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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Jewish-American anti-Zionist journalist
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What Was John McCain's True Wartime Record in Vietnam?
Hundreds of POWs may have been left to die in Vietnam, abandoned by their government—and our media.
The evidence is clear — but often ignored