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For the second time in two months, someone who has pledged allegiance to the Islamic State has plotted to kill innocents in New York City and has executed his plot.

According to police, at the height of the Monday morning rush hour this week, in an underground pedestrian walkway that I have used many times, in the middle of Manhattan, a permanent legal resident of the United States named Akayed Ullah detonated a bomb he had strapped to his torso in an effort to kill fellow commuters and disrupt massively life in New York.

The bomb was inartfully constructed, and it injured slightly four people nearby and Ullah himself seriously. He survived, was captured on the spot and is now in the joint custody of the New York Police Department and the FBI in the prison ward of Bellevue Hospital.

Ullah’s wounds had barely been addressed by emergency room physicians when the calls began to resonate in the government and in the media to strip him of his constitutional rights and ship him to a military facility in South Carolina or at Guantanamo Bay, Cuba.

These voices argued without access to any evidence that because the Islamic State is a foreign power with an army that has sworn to do harm to Americans and destroy our way of life, its soldiers have no constitutional protections when they go about their destruction. Ullah is a soldier of this foreign army, this argument goes, and should be treated as a soldier under the Geneva Conventions. That means he should be removed from the civilian judicial system and interrogated and tried by the military.

This argument essentially suggests that the police in New York or the FBI or the president somehow possesses the lawful authority from some unstated source, before guilt has been adjudicated, to suspend Ullah’s fundamental rights. This view of human liberty treats personal rights — even those guaranteed by the Constitution — as if they were gifts from the government offered in return for good behavior. Yet it defies history and the plain meaning of the Constitution.

Ullah’s rights to legal counsel and to a jury trial are expressly guaranteed by the Constitution; hence, no government official, no matter how powerful or well-intended, can interfere with them. The right to counsel attaches whenever anyone is confined against his will, charged with a crime or interrogated by authorities — whichever occurs first. The right to a jury trial attaches whenever the government wants the life, liberty or property of any person. The constitutional language guarantees these rights to every “person” — not citizens, not Americans and not just good people.

In Ullah’s case, the harm authorities say he caused occurred in the U.S. — while he was physically and lawfully in the U.S., where he was apprehended — so it is extremely unlikely that the crowd that denies the supremacy of the Constitution will get its way.

The failure to respect Ullah’s rights because he has said he was inspired by a foreign power would commence a slippery and horrific slope, down which any person who is hated or feared or appears foreign or different or misunderstood at any given moment might be pushed.

As a practical matter, the NYPD and the FBI are far better at gathering evidence than the military, and federal prosecutors are far better at getting convictions than are their military counterparts. It is a Hollywood-infused myth that Guantanamo Bay produces results. It does not. Khalid Sheikh Mohammed has been waiting in Gitmo for 15 years for his military trial.

When voices in the government clamor for the removal of fundamental liberties, it is often to mask the government’s own failures. I have argued for many years that government surveillance will turn us into East Germany — a modern-day totalitarian society that collapsed in 1989. I have also argued that surveillance doesn’t work. The place in which the Monday explosion occurred is one of the most video-surveilled in New York. Do the police watch these videos in real time as was promised when the cameras were installed? They do not.

As well, Ullah’s mobile phone recorded his whereabouts and communications prior to the explosion, also in real time, and the National Security Agency had all this, in real time. Did the NSA share it with the NYPD? It did not.

Some in government have asked what good the Constitution is if it fails to keep us safe. That is a bit silly, isn’t it? The Constitution is a piece of paper on which is written the supreme law of the land. Its purpose was to establish the federal government and to limit all government. But it is only as valuable to personal freedom as is the fidelity to it of those in whose hands we repose it for safekeeping. If the people we have hired to preserve, protect and defend the Constitution can cut corners to get to bad people, what will protect us when they want to cut corners to get to the rest of us?

When President Abraham Lincoln cut constitutional corners during the Civil War, he was unanimously rebuffed by the Supreme Court. The case, Ex parte Milligan, involved a civilian whom the government sought to try in a military court. The high court wrote: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.”

This danger of the mob’s approving the curtailment of constitutional protections for unpopular monsters is as real today as it was after the Civil War. We must vigorously guard against it.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
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This is a tale of FBI power misused and presidential trust misplaced.

Last week, retired Lt. Gen. Michael Flynn, President Donald Trump’s confidant on matters pertaining to national security from June 2015 to February 2017 and his short-lived national security adviser in the White House, pleaded guilty in federal court in Washington, D.C., to a single count of lying to the FBI. Under the terms of his plea agreement, Flynn, who had faced nearly 60 years in federal prison had he been convicted of charges related to all the matters about which there is said to be credible evidence of his guilt, will now face six months.

What could have caused Robert Mueller, the no-nonsense special counsel investigating whether any Americans aided the Russian government in its now well-known interference in the 2016 American presidential election, to have given Flynn such an extraordinary deal?

Here is the back story.

During the FBI’s investigation of Russian meddling in the election, it became interested in Flynn’s communications with Sergey Kislyak, a KGB colonel (the KGB is now known by its post-Soviet acronym, FSB) masquerading as the Russian ambassador to the U.S.

After Trump won the presidency, Flynn became an important member of the presidential transition team. Between the election and the inauguration, Flynn spoke on the telephone with Kislyak five times. Because Kislyak was a foreign spy, as well as an ambassador, his communications with Americans were monitored by the FBI.

When Flynn agreed to be interviewed by the FBI in his West Wing office on Jan. 24, he probably did not know what the agents were looking for. Jim Comey was still the director of the FBI. Mueller had not yet been named special counsel. The FBI investigation into Russian meddling in the just-completed presidential election was in its infancy.

Prior to the interview, the FBI obtained the transcripts of Flynn’s conversations with Kislyak. The conversations themselves were not illegal. On the contrary, it is expected that an incoming presidential administration will begin to reach out to foreign leaders even before the new president is inaugurated.

When the FBI interviewed Flynn, it asked him whether he had spoken with Kislyak and, if so, whether they had discussed American sanctions imposed on Russian individuals as retaliation for Russian meddling in the election. Flynn acknowledged the conversations but denied that they had been about sanctions. The two agents interviewing him knew immediately that he was lying, because they had read the transcripts of his conversations.

Since the FBI knew the subject matter of the Flynn-Kislyak conversations, what was the purpose of the Flynn interview? And given that the conversations were lawful — as long as they occurred after Trump’s victory — why would Flynn lie about them? As well, given that Flynn once ran thousands of surveillance projects against high-level foreign targets, how could he not have known that the FBI knew what he had discussed with Kislyak before its agents walked into his office?
Did Flynn have anything to hide from his interrogators? If he did, he has no doubt since revealed it to the FBI, because his guilty plea requires full cooperation with the same special counsel team that prosecuted him.

Timing is everything. The question of whether the conversations occurred while Trump was a candidate and whether they involved the transfer of anything of value from the Russian spy to the American campaign adviser or vice versa — whether the campaign, through Flynn, helped the Russians in their meddling or the Russians gave helpful information to the campaign in exchange for something of value — is at the heart of Mueller’s mission to prove or dispel allegations that the Trump campaign colluded with Russia.

Three weeks after the FBI interviewed Flynn, Trump fired him. The publicly stated reason for the firing was a purported lie that Flynn had told to Vice President Mike Pence about his conversations with Kislyak. Last weekend, on the day after Flynn pleaded guilty, the president issued a tweet claiming that he fired Flynn for lying to Pence and to the FBI.

If Flynn was fired in February for lying to the FBI in January, then Trump was aware of Flynn’s lies and his likely prosecution for them when he asked Comey to back off the FBI investigation of Flynn and then fired Comey for not backing off.

This is dangerous territory for the president.

Obstruction of justice is the interference with a law enforcement or judicial proceeding for a corrupt purpose. Thus, if the president knew of Flynn’s lies to the FBI when he asked Comey to back off Flynn, the existence of a presidential crime and impeachable offense depends on the president’s state of mind.

If the “back off Flynn” request was given because the president felt sorry for the general or because he had concluded that the FBI’s limited resources would be better utilized finding terrorists or arresting bank robbers, there was no corrupt motive. But if the motive for the request to Comey was fear of what beans Flynn might spill — about the president himself or his son-in-law, for example — that would be a corrupt motive, and the request would be a crime, as well as an impeachable offense.

Obstruction of justice is the rare federal crime that need not succeed to be criminal and prosecutable. It is also the rare federal crime that nearly all legal scholars agree is an impeachable offense. The president’s lawyers are not among them.

They have argued that because the president is the chief federal law enforcement officer in the land, his decisions on whom to prosecute are final and always lawful. That sounds like former President Richard Nixon’s now fully discredited argument that “when the president does it, that means that it is not illegal.”

In America, the president is a public servant, not a prince. Is the president in legal hot water? In a word: yes.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Foreign Policy • Tags: Donald Trump, Michael Flynn, Russia 
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In August, when President Donald Trump’s lawyers persuaded him to refrain from attacking independent counsel Robert Mueller publicly — he had many times called Mueller’s investigation a “witch hunt” — they also told him that the investigation was not aimed at him and not to worry because it would be over by Thanksgiving.

These are the same lawyers who revealed a fissure in the strategy of the president’s legal team. On one side are presidential lawyers who want to cooperate fully with Mueller because they are convinced that the president has nothing to fear from the public revelation of truthful information.

On the other side are presidential lawyers who believe that the office of the presidency is being diminished by its subservient surrendering of all demanded documents and emails to Mueller’s investigators — materials that skilled prosecutors might somehow be able to use against the president or members of his inner circle someday.

Adding to this is the presence of Gen. John Kelly, the White House chief of staff, a non-lawyer, who serves as the referee when the president’s lawyers disagree. That disagreement was heightened on Thanksgiving eve when a letter arrived at the White House. It must have been received as if it were a thunderbolt and no doubt generated bitter reminders of the “over by Thanksgiving” remark made to Trump personally.

Here is the back story.

When the government is investigating or prosecuting a group of people who have some common bond or prior relationship or mutual interest, it is not uncommon for their lawyers to enter into a joint defense agreement. This type of agreement is a written contract that generally governs the relationship of the potential defendants to one another and their joint relationship to the government. Though no two agreements are identical, they generally provide for the sharing of communications to and from the government, the sharing of evidence and a joint defense.

So if one of the lawyers in the agreement receives a request from the government for documents from that lawyer’s client, that lawyer will share the request and copies of the surrendered documents with the other lawyers who have signed the agreement.

The joint defense established by the agreement — we will sink or swim together — prohibits any person whose lawyer has signed the agreement from pointing a finger at any other person whose lawyer has signed the agreement. This united front often strengthens the defense team and frustrates the government. These agreements are common, lawful and binding until any potential defendant withdraws.

Lawyers must be very careful about what they have agreed to do, because a lawyer’s first and core loyalty is to her or his client, not to the group of folks represented by fellow counselors who have signed the agreement.

In the Mueller investigation, lawyers for some of the major targets — but not all — signed such an agreement. Those who did include lawyers for the president and lawyers for his former national security adviser, Michael Flynn.

Last Wednesday evening, after Trump had left the White House for a Thanksgiving weekend at his Florida estate, Flynn’s lawyers delivered a letter to lawyers for all the others in the agreement, including Don McGahn, who is White House counsel, to announce their withdrawal from it. This means that they can no longer comply with the terms of the agreement because they are about to have communications with Mueller’s team that they cannot share with the lawyers for the others.

That can only mean that Flynn is offering to give the government something. But Mueller’s prosecutors are threatening Flynn’s liberty. Why would he help them?

The retired lieutenant general faces a host of potential felonies — conspiracy to kidnap a foreign national, conducting a private foreign policy with a foreign government, failing to register as a foreign agent, failing to report income from a foreign government, working for a foreign government while working for the U.S. government, lying to FBI agents — all of which expose him to decades of federal prison time.

Flynn might help Mueller prosecute others because Mueller could reduce Flynn’s prison exposure substantially in return for credible evidence against another person in the agreement.

The tantalizing question remains: What evidence does Flynn have that Mueller wants or can use? Here is where this business of independent counsels — prosecutors not answerable through normal Department of Justice channels — can become dangerous to personal liberty.

Because this independent counsel’s office has been established solely to examine whether any Americans aided the Russian assault on our electoral system in the months leading up to the presidential election in 2016, Mueller, who heads that office, like his many predecessors who were appointed solely to investigate one person or one crime or one series of events, will have a natural tendency to indict someone for something, if only to justify his office’s existence.

We have already seen this in the charges against three former Trump colleagues — for lying to the FBI and for money laundering — which have no visible connection to the Russians or the election. Though there may be no visible connection to the Russians or the election, there may be an invisible one, so to speak.

Uncovering that kind of connection, which is brought about by fear of incarceration and a willingness to trade knowledge of dirt on former compatriots in return for one’s own freedom, is a technique mastered by prosecutors for nearly a century. But is this type of dirt, which is essentially purchased by the government by shaving years off federal prison exposure, believable?

Regrettably, this purchased, bribed testimony is, more often than not, believed by jurors, even though they are told of the deals that brought the evidence to them. Though Trump’s lawyers are gainsaying this Flynn reversal, they must know how potentially dangerous it is to their client. Flynn was Trump’s nearly constant confidant from June 2015 to February 2017.

Thanksgiving is over. Mueller and his team remain hard at work.

Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Michael Flynn, Robert Mueller, Russia 
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Should the government borrow against the future? Should it guarantee higher taxes for your children and grandchildren in return for lower taxes for you?

If government’s moral legitimacy depends on the consent of the governed, as Thomas Jefferson argued in the Declaration of Independence, can the federal government morally compel those who haven’t consented to its financial profligacy — because they are not yet born — to pay higher taxes?

These questions are at the base of the debate — such as it is — in Congress these days over the so-called Republican tax reform plan. But you will not hear these questions even asked, much less answered, on Capitol Hill because the Republican leadership of the House and Senate is afraid that the answers might drive them from power. The same can be said for Democratic leaders when their party controls Congress.

In fact, with the exception of a few courageous senators, such as Rand Paul of Kentucky, and representatives, such as Justin Amash of Michigan and Thomas Massie of Kentucky, most in Congress in both parties think the only limit on the government’s taxing power is what it can politically get away with at any given moment.

And it gets away with a great deal because vast majorities in both major political parties recognize no moral limits to the government’s sordid pattern of tax, borrow and spend.

The numbers are chilling.

The federal government collects about $2.5 trillion in revenue and spends about $4 trillion, annually. The difference between what it collects and what it spends is made up in borrowing. But it doesn’t borrow money as you or I do or any business does — with a planned schedule to pay back the principal it owes plus interest. Rather, it goes deeper into debt to pay its debts.

Though the federal government has been in debt since day one, when it borrowed millions to pay the debts that the states had amassed in fighting the American Revolution (who knows whether the states would have formed a central government without its promise of assuming their war debts?), but from time to time, it has paid back the principal that it borrowed.

Since the presidency of Woodrow Wilson 100 years ago, however, with two then-novel revenue-generating tools — the personal income tax to produce cash and the Federal Reserve to print cash — the federal government has rolled over debt but has never retired it. Stated differently, the feds have always made timely interest payments, but when principal has come due, they have simply borrowed more money to pay the principal and of course thereby incurred more debt.

For example, the federal government still owes the $30 billion Wilson borrowed to finance the useless and fruitless World War I, but the lenders it owes it to are different from those from which it originally borrowed that money. It has paid more than $15 billion in interest on this rolled-over and still-owed $30 billion principal in the past 100 years.

No household, no business, no bank, no government can long survive by doing this.

Since Wilson began this process, all of his successors have added to it, so that the federal government’s debt has swelled in 100 years from $30 billion to $20.5 trillion. Of the $4 trillion the feds spend annually, more than $850 billion of it is interest payments to its current creditors on its debts.

The Republican House tax changes — they cannot be called a “reform,” because they reform nothing; they just redistribute wealth and add debt — would lower taxes for some and raise taxes for many and add $1.5 trillion in debt for all.

If the feds follow their 100-year consistent pattern, this debt will never be retired, will be rolled over hundreds of times and will cause the taxes on generations of unborn Americans — where is their consent? — to rise without benefit to them and without popular or legislative approval.

But you won’t hear any of this debated in Congress because there — and in the White House, as well — we have insufficient political courage to address this problem prudently.

This is now so severe and so consistently an accepted method of operation for the federal government that one can only surmise that those who can address it today must expect that they will no longer be on earth when the bubble bursts.

The bubble, soon to consist of $1 trillion in annual federal government interest payments on $25 trillion in debt, has been characterized by no less a warrior than the current secretary of defense and by his colleague the chairman of the Joint Chiefs of Staff as the greatest contemporary threat to national security America faces — greater than Russian President Vladimir Putin, North Korea and all the terrorist crazies who wish us ill combined.

The threat is that people will stop paying taxes because nearly half of revenue will soon go to debt service and nearly half to fixed transfer payments and the productive earners will get little or nothing for their taxes. Then the government’s creditors will not be paid, and the government will not be able to borrow money. Then America as we have known it will cease to exist, and individuals and groups will be on their own to protect life, liberty and property.

Happy Thanksgiving.

Call me the skunk at the garden party if you will, but we need these sober thoughts on this Thanksgiving holiday, lest the blind continue to lead us into a pit with false claims of tax reform that really are part of our government-induced march to perdition.

At some point, the bribing of the poor with welfare and the middle class with temporary tax cuts and the rich with bailouts will come crashing down — unless we change the direction of the government before it is too late.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Government Debt, Government Spending, Taxes 
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What if the government doesn’t really deliver for us? What if its failures to protect our lives, liberties and property are glaring? What if nothing changes after these failures?

What if the National Security Agency — the federal government’s domestic spying apparatus — has convinced Congress that it needs to cut constitutional corners in order to spy on as many people in America as possible? What if Congress has bought that argument and passed a statute that put a secret court between the NSA and its appetite for all electronically transmitted data in America? What if that secret court — called the Foreign Intelligence Surveillance Court — is supposed to protect personal liberty but instead has become a wall behind which the NSA hides?

What if the Constitution only permits warrants for searches and seizures that are based on probable cause of crime? What if the Constitution requires that all warrants for searches and seizures specifically describe the place to be searched or the person or thing to be seized? What if the courts have ruled that electronic surveillance constitutes a search and seizure within the meaning of the Constitution?

What if the FISC issues warrants based on a lesser standard than probable cause of crime? What if its standard is probable cause of speaking with or knowing someone who has spoken with a foreign person? What if this is such an absurd and loose standard that it violates the Constitution and ends up protecting no one except the spies who pretend to employ it?

What if the FISC is a facade? What if the NSA spies on all people all the time while hiding behind FISC-issued warrants? What if the stated purpose of spying on everyone all the time is to keep us safe from terrorist acts by trading liberty for security? What if that trade has never worked?

What if the NSA has convinced President Donald Trump and his immediate two predecessors that it needs to spy on everyone in America to keep us safe, no matter what the Constitution says? What if those three presidents have bought that argument?

What if NSA spying is really done without any warrants? What if this spying captures in real time every keystroke on every computer and hand-held device — as well as the content of every email, text message, telephone call and fiber-optic cable transmission — in the United States 24/7?

What if NSA computers have direct and unimpeded access to all mainframe computers of all telecoms and computer service providers in the U.S.? What if the acquisition of all this data is known in the intelligence community as bulk surveillance?

What if the Constitution is the supreme law of the land? What if the Constitution, with its requirement of warrants based on probable cause and specifically identifying targets, expressly prohibits bulk surveillance? What if bulk surveillance is not only unconstitutional but also useless because it produces information overload — too much data to sift through in a timely manner?

What if President Trump and his immediate two predecessors have unleashed the NSA to acquire all communications data about everyone in America even though it’s obvious that the NSA cannot possibly sift through it all in a timely enough manner to keep us safe?

What if the Islamic State-inspired extremist who drove a rental truck on a New York City bicycle and pedestrian path and killed eight people last week did a dry run of his killing plans the week before? What if one of his own cellphones recorded portions of the dry run? What if the NSA had that recording but did not notice it until after the attack?

What if the same killer who drove the rental truck stored 90 video clips of other Islamic State-inspired killings on a cellphone? What if the NSA had those videos but did not notice them until after the attack?

What if the same killer who drove that rental truck also stored nearly 4,000 photos of Islamic State atrocities on a cellphone and the NSA, which has had the repellant photos since the killer first stored them, did not notice them until after the attack?

What if liberty is our birthright and cannot be taken away by government without a jury trial? What if the NSA’s allies in government wrongly and foolishly think that the surrender of privacy to America’s 60,000 domestic spies somehow keeps us safe?

What if the genius of the Constitution — if followed — is not only its protection of privacy but also its requirement that the government focus its searches and seizures on people who it has reason to suspect are engaged in criminal activity and about whom judges have ratified the evidence to support those suspicions? What if the Constitution requires the government to leave the rest of us alone?

What if the government stinks at keeping us safe but is very good at invading our privacy?

What if this bulk surveillance is about power and control and not about safety? What if the NSA has selectively leaked what it knows about some folks for political purposes? What if President Trump himself and his former national security adviser have been victims of those leaks?

What if the use of intelligence data for political purposes and not for safety is a profound danger to democracy? What if government can’t keep us safe? What if we falsely think that it does keep us safe? What if that delusion makes us less safe?

What if government’s bulk acquisition of private data makes us less free? What if government works not for us but for itself? What do we do about it?

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
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Earlier this week, the government revealed that a grand jury sitting in Washington, D.C., indicted a former Trump presidential campaign chairman and his former deputy and business partner for numerous felonies.

Both were accused of working as foreign agents and failing to report that status to the federal government, using shell corporations to launder income and obstruction of justice by lying to the federal government.

The financial crimes are alleged to have occurred from 2008 to 2014, and the obstruction charges from 2014 to 2017. At the same time it announced the above, the government revealed that a low-level former foreign policy adviser to the Trump campaign, George Papadopoulos, had pleaded guilty to lying to the FBI and become a government witness.

Does any of this relate to President Donald Trump? Here is the back story.

At the same time that Paul Manafort and his business partner Rick Gates were guiding the Trump campaign in the summer of 2016, Russian agents were manipulating American social media sites so as to arouse chaos in general and animosity toward Hillary Clinton in particular. The Department of Justice appointed former FBI Director Robert Mueller as independent counsel to determine whether any Americans had criminally helped the Russians.

The alleged crimes of Manafort and Gates appear to have nothing to do with Trump, nor have they any facial relationship to the Russians. So why were these two indicted by a grand jury hearing evidence about alleged American assistance to Russian interference with the 2016 presidential campaign?

When prosecutors confront a complex series of potentially criminal events, they often do not know at the outset of their investigation where the evidence will lead them. Sometimes they come upon a person who they believe has knowledge of facts they seek and that person declines to speak with them. Such a refusal to speak to the government is perfectly lawful in America, yet it often triggers a prosecution of the potential witness so that prosecutors may squeeze him — not literally, of course — for evidence to which they believe he can lead them.

The ultimate target of Mueller’s investigation is President Trump. It is standard operating procedure when prosecutors have a high-level target to charge those below the target with something just to get them to cooperate. Though the charges against Manafort and Gates need not be related to the Russians or to Trump, they must be real. It’s clear they are, as each is facing more than 20 years in prison. Mueller believes that that prospect is enough to dispatch their lawyers to make deals with him.

The danger of such a deal is that Manafort and Gates may offer to tell Mueller what they think he wants to hear — even if it is not truthful — so that they can have their prison exposure lessened.

There is more danger in the seemingly smallest of this week’s Mueller-generated events. Papadopoulos was interviewed voluntarily by the FBI on Jan. 27. He was arrested on July 27 for lying to FBI agents during that interview. In a secret federal court proceeding on Oct. 5, he pleaded guilty.

In a profound miscarriage of justice, federal law permits FBI agents to lie to us but makes it a crime for us to lie to them. Nevertheless, why was the Papadopoulos guilty plea kept secret? What was he doing between his arrest and his plea and between his plea and its revelation?

Judges are very reluctant to close their courtroom doors in any criminal proceeding, even if both the prosecutors and the defense counsel request it. The public has a right to know whom the government is prosecuting and what deals or punishments it may be obtaining. Yet if prosecutors can convince a judge that public knowledge of the existence of a guilty plea might harm an ongoing criminal investigation, the judge can keep the plea secret.

That is apparently what happened here. It appears that Papadopoulos was gathering evidence for Mueller, probably by talking to his former Trump campaign colleagues while wired — a process that would have been fruitless if his guilty plea had become public.

Because Papadopoulos admitted under oath that he lied to FBI agents, the courts will treat his guilt as certain. That gives Mueller great leverage with him. It also gives Papadopoulos great incentive to help Mueller — truthfully or not — because he knows he is going to federal prison. He also knows that if Mueller likes what he hears, a five-year prison term could be reduced to six months.

Hence, Papadopoulos could be a treasure-trove for Mueller on the production of any evidence linking the Trump campaign and the Russians and any evidence of Trump’s personal knowledge or acquiescence. Papadopoulos has already produced a wild tale about meetings with a Russian professor and a female Russian government agent in London that the FBI apparently believes.

Is this any way to conduct a prosecution?

I have argued for years that squeezing defendants and witnesses by threats and promises to get them to spill the beans is a form of extortion or bribery — not much different from the extortion and bribery that the government regularly prosecutes. “You tell us what we want to hear and we will ask a judge to go easy on you. If not, you will suffer great losses.” It is bad enough that the feds can legally lie to us and get away with it, but can they also legally threaten and bribe witnesses to testify against us and get away with it? Can they do this to the president?

In a word, yes. My arguments have fallen on deaf ears. Squeezing witnesses and defendants is a way of life for federal prosecutors. For the president, it is the tip of a dangerous iceberg.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump, Russia 
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I am in Switzerland this week interacting with and lecturing to students and faculty at the University of Zurich. The subject of our work is the U.S. Constitution and its protections of personal liberty.

In most countries, government has begrudgingly granted snippets of personal liberty to keep those who are demanding it at bay. Throughout history, kings and other tyrants have, from time to time, given in to pressures from folks to recognize their natural rights. These instances of “power granting liberty,” as the practice has come to be known, usually have come about to avoid further bloodshed.

In the United States and in Switzerland, however, the opposite took place. In both countries, sovereign states came together to establish a central government peacefully. This model is known as “liberty granting power.” Indeed, the Swiss Constitution is modeled on our own, whereby free and independent states delegated some of their sovereignty to a new, limited central government.

Today, however, the two countries are embroiled in a below-the-radar dispute over whether U.S. federal courts can try Swiss nationals who have diligently followed Swiss law and who have never been in the U.S.
Here is the back story.

When Thomas Jefferson wrote the Declaration of Independence, he included a section he would later refer to as the indictment of British King George III. It characterized the “long train of abuses and usurpations” designed by the king to “harass our people, and eat out their substance.” This was harsh language, even by today’s standards.

One of those abuses and usurpations was “for transporting us beyond Seas to be tried for pretended offenses.” He was referring to the British practice of charging colonists — who had never been to Great Britain — in London for behavior that was lawful in the Colonies but somehow allegedly ran afoul of English law.

The typical charge was speaking out and inducing others to oppose the king and Parliament or refusing to pay their unlawful taxes. These so-called crimes were often generally characterized as treason against the Crown.

This British practice of dragging American colonists before British judges and British juries was so offensive to the colonists that the Framers sought to prevent it from happening here by crafting two prophylactic clauses in the Constitution

itself. One clause defined treason as only levying war against the United States or giving aid and comfort to our enemies. The other clause required that people be tried in the state where such crimes were alleged to have been committed.

The Constitution recognizes that American people and property can be harmed by foreigners in foreign countries, and the common law at the time required that if there was no harm, there was no crime.

These first principles — crime is harm and people should be tried in the place where they are accused of committing a crime — have been bedrocks of Anglo-American jurisprudence for hundreds of years.

The reason for trying a criminal case in the place where the action took place is to comply with the constitutional requirements of due process. The form of due process requires the pre-existence of the statute allegedly violated, notice of the violation, a trial before a neutral judge and jurors, and the right to appeal the trial’s outcome, but the essence of due process is fairness.

Fairness at trial means that the defendant has the constitutionally required tools available to him, not the least of which are witnesses and tangible things to aid in his defense. The Framers knew this would be nearly impossible to achieve in a foreign land before a foreign court.

This understanding subsisted until the Reagan administration, when the government began seizing foreigners abroad and bringing them to the U.S. for trial. Though these seizures were repellent, the crimes — violence against individuals or large-scale distribution of dangerous drugs — were crimes everywhere, and the harm caused by them was palpable.

Until now.

Now Swiss bankers who have followed and respected Swiss banking laws — which honor the privacy of customers, no matter who they are — and who have never caused harm to American people or property are on trial in the U.S.

The charges? Violating U.S. banking laws by failing to report suspicious transactions to U.S. banking regulators. And for those “pretended offenses,” these bankers have been transported “beyond Seas” for trial.

The Department of Justice is unable to point to any harm caused by these so-called offenses, but federal judges, just as they did in the Reagan era, are accepting the DOJ argument of universal jurisdiction — that somehow American federal courts can try anyone, no matter where a person is said to have committed a crime, as long as the defendant is physically in the courtroom.

But this violates the Declaration of Independence and Constitution’s first principles, and it subjects American bankers and government officials to the same pretended universal jurisdiction of foreign courts. Indeed, a court in Spain has indicted former President George W. Bush and former Defense Secretary Donald Rumsfeld for alleged war crimes committed in Afghanistan.

Why should Bush and Rumsfeld answer to Spain for events that allegedly occurred in Afghanistan? Why should Swiss bankers answer to the U.S. when they didn’t violate Swiss law?

This is all about power and the fiction of universal jurisdiction — a fiction the Framers thought they had buried. It needs to be buried again.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory 
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Late last week, President Donald Trump signed an executive order directing the secretaries of the treasury and health and human services to cease making payments to health care insurance companies in behalf of the more than 6 million Americans who qualify for these payments under the Patient Protection and Affordable Care Act, commonly known as Obamacare.

Obamacare is the signature legislation of former President Barack Obama, enacted in 2010 and upheld by the Supreme Court in 2012. Its stated goal was to use the engine of the federal government to make health insurance available and affordable to everyone in America.

It seeks to achieve that goal by regulating the delivery of health care, giving federal bureaucrats access to everyone’s medical records, compelling everyone in America to acquire health insurance and providing financial subsidies for those people whose household incomes are below certain levels and who do not otherwise qualify for Medicare or Medicaid. Under President Obama, the subsidies were regularly paid, and they had been paid under President Trump, as well, until he decided to cease paying them last week.

Here is the back story.

How is it up to the president to decide whether to spend federal dollars when the law requires him to do so? The answer to that question depends on whether Congress has authorized the specific expenditure of the tax dollars.

Under the Constitution, when Congress passes legislation that directs the president to spend federal tax dollars — or, as is likelier the case today, dollars borrowed by the federal government — Congress must appropriate funds for the expenditure. So for every federal program that spends money, Congress must first create the program — for example, building a bridge or paving an interstate highway — and then it must pass a second bill that appropriates money from the federal treasury and makes it available to the president for the purpose stated in the first law.

When Obamacare was drafted in 2009 and 2010, one of the many compromises that went into it was the gradual rollout of its provisions; different parts of the law became effective at different times. The law was enacted with all Democratic votes. No Republican member of either house of Congress voted for it, and only a handful of Democrats voted against it.

By the time the subsidy provisions took effect, the Republicans were in control of Congress, yet Obama was still in the White House. When Obama asked Congress to appropriate the funds needed to make the subsidy payments required by the Obamacare statute, Congress declined to do so. Thus, Obama — who, as the president of the United States, was charged with enforcing all federal laws — was denied the means with which to enforce the subsidy portion of his favorite legislation.

So he spent the money anyway. He directed his secretaries of the treasury and health and human services to take appropriated funds from unstated programs and to make the subsidy payments to the seven largest health insurance carriers in the United States from those funds. Of course, by doing so, he was depriving other federal programs, authorized and funded by Congress, of the monies to which they were entitled. But Obamacare was his legacy, and he was not about to let it die on the vine.

Can the president spend federal dollars, whether from tax revenue or borrowing, without an express authorization from Congress, even if he is following a law that requires the expenditures? In a word, no.

That’s because the drafters of the Constitution feared the very situation confronted by Congress and Obama in 2013 — a law that is no longer popular, is no longer supported by Congress and costs money to enforce, with a president eager to enforce it and a Congress unwilling to authorize the payments. To address this tension between a president wanting to spend federal dollars and a Congress declining to authorize him to do so, the drafters of the Constitution put the power of the purse unambiguously in the hands of Congress. The Constitution could not be clearer: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

It follows that where the appropriations have not been made by Congress, the funds may not be spent by the president. When Obama declined to recognize this constitutional truism, the House of Representatives sued the secretary of health and human services in federal court, seeking to enjoin her from making the subsidy payments, and the House won the case. The court underscored the well-recognized dual scheme of the Framers whereby two laws are required for all federal expenditures — one to tell the president on whom or on what the money should be spent and the second to authorize the actual expenditure. Without the second law — the express authorization — there can be no lawful expenditure.

President Trump, after making the same unlawful expenditures for nine months, decided last week to cease the practice. Whether he did so to bend Congress to his will on health care or he did so out of fidelity to the Constitution, he did the right thing, but he should have done it on his first day in office.

Let’s not lose sight of the whole picture here. President Obama has triumphed over President Trump and the Republicans who control Congress, because all but a handful of those who are faithful to the Constitution are behaving as if there were a constitutional obligation on the part of the federal government to provide health insurance for everyone in America. According to a plain reading of the Constitution — and even as articulated by the Supreme Court in the case that upheld the constitutionality of Obamacare — there isn’t.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Obamacare 
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“The constitutionally guaranteed ‘freedom to be intellectually … diverse or even contrary,’ and the ‘right to differ as to things that touch the heart of the existing order,’ encompass the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.”

– Supreme Court of the United States in Street v. New York (1969)

Sometimes the public expression of unwanted ideas reaches directly into our living rooms. When President Donald Trump attacked a half-dozen or so professional football players who, instead of standing during the traditional playing of the national anthem prior to football games, “took a knee” by kneeling on one or both of their knees during the anthem, hundreds more players on national television took a knee in defiance of the president.

Here is the back story.

Last year, a quarterback for the San Francisco 49ers, Colin Kaepernick, began quietly taking a knee at NFL games to protest what he said was the excessive use of force by police. He was the subject of mild but largely below-the-radar criticism by those who thought sincerely that taking a knee publicly during the playing of the national anthem was a sign of disrespect for the flag and the anthem and thus for this country.

When a few of his buddies and former colleagues — he is no longer a member of an NFL team — followed suit for a variety of reasons, all of which centered around the right to protest the policies of the government, Trump saw a political opening.

At a rally in Alabama last month, Trump aggressively attacked the practice of taking a knee. He argued that it was so disrespectful to the American flag and the national anthem that those who had taken a knee should be fired from their jobs.
This pronouncement focused a spotlight on the six or so scattered players who had followed Kaepernick’s lead, and soon hundreds were doing so. The president took their behavior as an affront to him and to the nation, and he persisted in his attacks on the players. Soon, some team owners joined their players in various means of expressing solidarity with those who had taken a knee.

When the players union backed up these silent expressions of political opinions, it argued that all of its members have a constitutional right to express themselves in uniform in their workplace. Do they? The short answer is that it depends on where the players are when they take a knee.

Some jurisdictions — such as California, the District of Columbia, New Jersey and New York — give more protection to employees for expressive conduct in the workplace than others do. When the expressive conduct — taking a knee, bowing one’s head, locking arms with colleagues — occurs in the workplace, the issue is not necessarily one of free speech, because the First Amendment only comes into play when the government itself is accused of infringing upon or compelling speech. In the NFL, the alleged infringers of speech or compellers of speech are team management, not the government.

Expressive conduct — lawful behavior that offers a political opinion — is the constitutional equivalent of free speech. So interfering with expressive conduct or commanding its cessation in conformity to management’s political or patriotic views constitutes interfering with speech. May employers do that?

In states where expressive conduct in the workplace is protected, employees may express themselves as long as they do not materially interfere with the business of the workplace. In states without that employee protection, they may not do so.
So in states such as Texas, an employee who refuses to comply with an instruction from management to conform to certain behavior in public — e.g., standing during the playing of the national anthem — can be disciplined, as Texas lacks the added protections for individual workplace expressions that a few states provide.

However, even in the states that lack the employee expression protection, if management’s instructions to conform require conformance on property that the government owns, such as a publicly owned stadium, then management is treated constitutionally as if it were the government. Just as the government cannot interfere with speech to suppress its content or to compel conformity, neither may team management when teams play on government-owned land.

Thus, in states where the government owns the stadiums or where expressive conduct in the workplace is protected, employees may engage in expressive conduct in defiance of management, as long as their conduct does not interfere with the workplace. Just as the government may interfere with speech for non-content-related reasons — for example, noise at night or safety in a crowd — management may interfere with speech when the speech itself interferes with the business of the workplace.

If team management could show that taking a knee materially interferes with the workplace product — money for the owners resulting from players winning football games — because it chases away ticket buyers or reduces advertising or media revenue or impairs team morale and thus produces poor play, it would have a strong case, even in the states with employee protection laws and even in venues owned by the government.

In the famous flag burning cases a few years ago, the Supreme Court made clear that in America, we have no revered symbols that command orthodox respect. The flag itself represents the right to treat it as one wishes. We are free to respect the flag and to shun those who do not, but we may not harm a hair on their heads.

I am with the French philosopher Voltaire, who, regarding folks who had literally lost their heads, is reputed to have said, “I disagree with what you say, but I will defend to the death your right to say it.”

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Freedom of Speech 
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Here we go again. The United States has been rattled to the core by an unspeakable act of evil perpetrated by a hater of humanity. A quiet, wealthy loner rented a hotel suite in Las Vegas, armed it with shooting platforms and automatic weapons, knocked out two of the windows, and shot at innocents 32 floors below. Fifty-nine people were murdered, and 527 were injured.

The killer used rifles that he purchased legally and altered illegally. He effectively transformed several rifles that emit one round per trigger pull and present the next round in the barrel for immediate use (semiautomatics) into rifles that emit rounds continuously when the trigger is pulled — hundreds of rounds per minute (automatics). Though some automatic rifles that were manufactured before 1986 can lawfully be purchased today with an onerous federal permit, automatic weapons generally have been unlawful in the United States since 1934. Even the police and the military are not permitted to use them here.

I present this brief summary of the recent tragedy and the implicated gun laws to address the issue of whether the government can keep us safe.

Those who fought the Revolution and wrote the Constitution knew that the government cannot keep us safe. Because they used violence against the king and his soldiers to secede from Great Britain, they recognized that all people have a natural right to use a weapon of contemporary technological capabilities to protect themselves and their liberty and property. They sought to assure the exercise of this right by enacting the now well-known Second Amendment, which prohibits the government from infringing upon the right to keep and bear arms.

When the Supreme Court interpreted this right in 2008 and 2010, it referred to the right to keep and bear arms as pre-political. “Pre-political” means that the right pre-existed the government. It is a secular term for a fundamental, or natural, right. A natural right is one that stems from our humanity — such as freedom of thought, speech, religion, self-defense, privacy, travel, etc. It does not come from the government, and it exists in the absence of government.

The recognition of a right as fundamental or natural or pre-political is not a mere academic exercise. This is so because rights in this category cannot be abrogated by the popular will. Stated differently, just as your right to think as you wish and say what you think cannot be interfered with or taken away in America by legislation, so, too, your right to own, carry and use arms of the same sophistication as are generally available to bad guys and to government officials cannot be interfered with or taken away by legislation. That is at least the modern theory of the Second Amendment.

Notwithstanding the oath that all in government have taken to uphold the Constitution, many in government reject the Second Amendment. Their enjoyment of power and love of office rank higher in their hearts and minds than does their constitutionally required fidelity to the protection of personal freedoms. They think the government can right any wrong and protect us from any evil and acquire for us any good just to keep us safe, even if constitutional norms are violated in doing so.

Can the government keep us safe? In a word, no.

This is not a novel or arcane observation but rather a rational conclusion from knowing history and everyday life. In Europe, where the right to keep and bear arms is nearly nonexistent for those outside government, killers strike with bombs and knives and trucks. In America, killers use guns and only stop when they are killed by law-abiding civilians or by the police.

The answer to government failure is a candid recognition that in a free society — one in which we are all free to come and go as we see fit without government inquiry or interference — we must be prepared for these tragedies.
We must keep ourselves safe, as well as those whom we invite onto our properties.

Surely, if the president of the United States were to have appeared at the concert venue in Las Vegas to address the crowd, the Las Vegas killer would never have succeeded in bringing his arsenal to his hotel room. Government always protects its own. Shouldn’t landowners who invite the public to their properties do the same?

Add to government’s incompetence its useless intrusive omnipresence. In present-day America, the National Security Agency — the federal government’s domestic spying agency — captures in real time the contents of every telephone call, email and text message, as well as all data sent over fiber-optic cables everywhere in the U.S. Thus, whatever electronic communications the Las Vegas killer participated in prior to his murders are in the possession of the federal government.

Mass surveillance is expressly prohibited by the Fourth Amendment, but the government does it nevertheless. It claims it does so to keep us safe. Yet this exquisite constitutional violation results in too much information for the feds to examine in a timely manner. That’s why the evidence of these massacres — from Sandy Hook to Boston to Orlando to San Bernardino to Las Vegas — is always discovered too late. At this writing, the government has yet to reveal what it knew about the Las Vegas killer’s plans before he executed them and executed innocents.

This leaves us in a very precarious position today. The government cannot keep us safe, but it claims that it can. It wants to interfere with our natural rights to self-defense and to privacy, but whenever it does so, it keeps us less safe. And in whatever arena it keeps us less safe and falsely fosters the impression that we are safe, we become less free.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
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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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