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“When the president does it, that means that it is not illegal.” — Richard M. Nixon (1913-94)

Legal scholars have been fascinated for two centuries about whether an American president can break the law and remain immune from prosecution. During the Civil War, Abraham Lincoln ordered troops to arrest, without warrant, and incarcerate, without due process, many peaceful, law-abiding journalists and newspaper editors — and even a member of Congress — in the Northern states. Wasn’t that kidnapping?

During World War I, Woodrow Wilson ordered federal agents to arrest people who sang German beer hall songs or read aloud from the Declaration of Independence in public. Wasn’t that infringing upon the freedom of speech?
During the Great Depression, Franklin D. Roosevelt ordered banks to confiscate gold from Americans who had purchased and possessed it lawfully. Wasn’t that theft?

In the early 1970s, Richard Nixon used the CIA to spy on Americans and to frustrate the FBI’s efforts to investigate a burglary at the Democratic National Committee’s Watergate headquarters, and then he denied doing any of this. Wasn’t that an invasion of privacy and obstruction of justice and using a federal office for deception? Years after his resignation, Nixon infamously told David Frost in a live interview that no matter what the president does, it is lawful. Where did he get that argument from?

And President Donald Trump has asked Congress for money to condemn real estate and build a border barrier in Texas. Congress said no, yet he plans to spend the money anyway. Doesn’t that violate his oath to uphold the Constitution?

Though there may have been political consequences to each of these presidential acts of lawlessness — there were for Nixon, at least — there were no legal consequences in the form of impeachment or prosecution. The Constitution itself limits impeachment to treason, bribery or other high crimes and misdemeanors.

The “high crimes and misdemeanors” language was interpreted by the House Judiciary Committee in 1974 to include material interference with a governmental function and obstruction of justice and the use of a governmental asset to deceive the public — but not any garden-variety crime, such as bank or tax fraud or kidnapping or invasion of privacy or misappropriation of federal funds.

During the presidency of Bill Clinton and afterward, the Department of Justice ordered research about whether a president could be charged with a crime against his will and while still in office. The DOJ now possesses three scholarly legal opinions on the subject. Two of them say he cannot be prosecuted; one of them says he can. All three are based on the same law and history but employ different deference to the presidency.

Two of those opinions say that if there is probable cause of crime by the president and the time during which the law requires a prosecution to commence — the statute of limitations — would expire while the president is in office, he or she should be indicted while in office but the prosecution should be deferred until he or she is no longer president. One of the opinions, incredibly, mimics the Nixonian president-as-prince idea and basically tells the Department of Justice to forgo prosecution.

Clinton was prosecuted while in office for testifying falsely — lying under oath in a civil deposition, a crime rarely prosecuted — but it was with his consent. Presumably, he consented to the quick prosecution and guilty plea in the final days of his presidency to avoid a costly and prison-exposed post-presidential indictment for more serious crimes.

I have recounted this brief history of presidential lawbreaking as a background to a discussion of the political period I suspect we are all about to enter. That period will commence with the expected release of the report of special counsel Robert Mueller. Under the court rules through which he was appointed, however, his report is not for Congress or the president or the public but rather for the attorney general and those engaged by him to analyze it.

There may be parts of the report that could not lawfully be made public. For example, if a grand jury took testimony about the president’s alleged and denied obstruction of justice related to his firing of FBI Director James Comey — i.e., testimony about whether he did so for a venal or unlawful purpose, such as preventing the FBI from discovering other presidential crimes — and the grand jury decided not to indict the president, the existence of that testimony, as well as its substance, must remain secret under the law. The same is the case for all references to a decision not to indict someone.

That is at least the theory of grand jury secrecy; those not indicted should not have their names dragged through the mud.

Now back to Nixon’s the-president-can-commit-no-crime argument and that DOJ opinion basically agreeing with it. This view of the presidency is imperial. Is the president of the United States so integral to the preservation of the Constitution that he cannot be diverted from that job to the rigors of defending himself or herself in a criminal prosecution?

If the answer is yes, how about when he or she is no longer employed in the defense of the Constitution? If the answer to this question is no, who should be trusted with a get-out-of-jail-free-forever card? And where is that in the Constitution?

Trump once boasted that he could shoot someone on Fifth Avenue in New York in broad daylight and get away with it or pardon himself. I hope this was Trumpian comedic exaggeration. If not, it is the revelation of a dangerous Nixon-like mentality that the rule of law — which requires that no one be above the law’s commands or beneath its protections — applies to everyone but him.

Can the president legally break the law? If he can, we will soon be back to the Nixon days. And we all know how they ended.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump 
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“Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.” — Chief Justice Charles Evans Hughes (1862-1948)

This week, the United States Senate will take a historic vote known as a negation, a statutory procedure whereby Congress nullifies an act of the president. The negation vote is authorized by the National Emergencies Act of 1976, which was written to permit the president to streamline government during an unforeseen crisis.

The act itself fails to define what constitutes an emergency, but the courts — as is their job where a law is ambiguous — have generally defined an emergency as a sudden and imminent threat to life, liberty and property that cannot be addressed by the exercise of ordinary government powers.

When Hurricane Katrina devastated New Orleans, President George W. Bush declared a state of emergency. That declaration enabled him to move government assets and materials to suffering folks without regard to environmental laws, public bidding laws or even local speed limits. But it did not permit him to spend money that Congress had not authorized, nor could he as president exercise any powers that the Constitution delegated to Congress.

President Donald Trump, in his recent declaration of national emergency at the U.S.-Mexico border, ordered the departments of Defense and Homeland Security to spend unused but unauthorized money in their budgets on building a 55-mile steel barrier — “a big, beautiful wall” — along a portion of that border. Because Congress has expressly and explicitly declined to authorize the funds for the construction of such a barrier, we have a constitutional conflict on our hands.

The conflict is more acute than just a difference of opinion. It is an issue for Trump of fidelity to his oath of office. Several of the statutes that Trump will be violating by spending unauthorized money on the border barrier he himself signed into law. In the presidential oath, the president agrees to enforce federal laws “faithfully” — whether he agrees with them or not.

Can the Congress amend the Constitution? Can it cede to the president powers that the Constitution has delegated to Congress? Every time the courts have addressed these questions, they have answered with a resounding NO.

The issue of whether the status of matters at the southern border rises to the level of emergency will soon be decided by a federal court. It will rule if in the present situation there is an A) sudden, B) unanticipated and C) true threat to life, liberty or property that D) cannot be addressed by the ordinary employment of government assets. If a court decides that any of the A through D factors is not present, that is the end of the inquiry; the court will enjoin the enforcement of Trump’s declaration because it does not fit within the definition of an emergency.

But if a court agrees with the president — that the monthslong mass movement of migrants from Mexico to Texas is an emergency that cannot be addressed by ordinary means — it must then address the constitutional issues. Here, the law is clear.

Under the Constitution, only Congress gets to decide how money from the federal treasury shall be spent. When the president has asked for funds — here, to condemn private property and build the barrier — and Congress has said no, he cannot legally go out and spend the funds anyway. Some have argued that Congress has given away some of its powers to appropriate funds to the president during prior emergencies. And some have argued that the existence of an emergency gives new powers to the president. Such arguments betray gross ignorance of the Constitution.

Can the Congress amend the Constitution? The short answer to this is NO. Only three-quarters of the states can amend the Constitution. Yet, for generations, Congress and the president have engaged in a subtle amendment by consent. This has generally occurred when presidents have started wars — a congressional function — and Congress has looked the other way. Without judicial intervention — often nearly impossible because only a member of Congress would have standing to sue — Congress and presidents get away with this.

This amendment by consent is at the core of President Trump’s argument. He and his Republican colleagues in Congress have argued that Congress has given all presidents since 1976 new powers in emergencies. This is not possible under our system of constitutional government, even if all concerned did look the other way with a wink and a nod. Presidential power comes only from the Constitution, not from Congress.

In an ironic sense, those of us who believe that the Constitution means what it says are grateful to President Trump for teeing up this issue, expecting a judicial injunction. But no member of Congress can be faithful to her or his oath of office and still support Trump’s view of extraconstitutional powers.

This week, the Senate can follow the House in voting to prevent President Trump from getting away with this. The price of him doing so far exceeds the construction costs of a border barrier. When a president exercises extraconstitutional power, he violates his oath to be faithful to the Constitution and he strikes at the core principle of the separation of powers. Such a strike irreparably undermines the basic protection of freedom in America itself.

In this case, the freedom being undermined is the right of the people to a government that obeys its own laws. Emergency does not create presidential power; only the Constitution does.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
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In an ideal world, the president of the United States would succeed in negotiating a nuclear arms treaty with a foreign government — and do so with full congressional support; his lawyer would respect the attorney-client privilege and not reveal confidences publicly; Congress would abide the old adage that politics ends where the water’s edge begins and lie low when the president is overseas on a delicate mission; the president would not engage in a grievous constitutional overreach that provokes a congressional negation; no one in his administration would have a top-secret security clearance who failed to be truthful to the law enforcement and intelligence folks investigating him; and the president would not fear RICO.

But we do not live in an ideal world — and all of these issues and events came to our consciousness last week.

Here is the back story.

President Donald Trump traveled to Vietnam last week to engage in negotiations with Kim Jong Un, the dictator of North Korea. Normally, when the president of the United States meets with a foreign leader to consummate an agreement between the countries, the actual meeting is a formality and a public relations triumph.

That’s because normally, emissaries from the two countries have been meeting for months, hammering out the details of an agreement. It is in the private hammering-out that the real work of diplomacy is done, not in the public handshaking and backslapping.

But Trump’s foreign policy approach is anything but normal. Trump knew when he left Washington for Hanoi that there was no agreement between the countries, and he also knew that no agreement was likely. But he believed that the force of his towering personality could produce a meeting of the minds. Most of North Korea is economically desperate and physically starving and wants U.S. economic sanctions lifted. The U.S. is justly fearful of nuclear weapons in the hands of a madman that might be able to reach Los Angeles and wants the weapons gone.

It could be that neither side was willing to budge, or the war-thirsty John Bolton, Trump’s national security adviser — whose views on the use of military force for diplomatic purposes Trump ran against in 2016 — may have prevailed upon his boss.

While the world watched the pseudo-negotiations in Hanoi, House Democrats were conducting a public hearing, over the objections of their Republicans colleagues, about Trump’s alleged unlawful behavior before and while he was president. The sole witness at the hearings was Michael Cohen, a convicted perjurer and Trump’s former lawyer. Cohen claimed personal knowledge of Trump’s alleged — and denied — criminal and fraudulent behavior.

Can a lawyer testify against his own client? What has become of the attorney-client privilege? These are sound questions that were not asked last week because of something called the crime-fraud exception.

Normally, all communications between a client and his lawyer are privileged from revelation. The exception comes when the lawyer can demonstrate that he and the client were together engaged in criminal or fraudulent acts. Cohen alleged as much, made out a basic case supported by documents, gave the Democrats a fertile field of alleged Trump misdeeds to harvest and was permitted to reveal under oath and on national television countless sordid communications he had with Trump, including in the White House.

Trump claimed that Cohen’s explosive allegations actually interfered with his negotiations in Hanoi and were the proximate cause of their failure.

While this was happening, Democrats and Republicans in the Senate were joining their House colleagues in opposition to the president’s expenditure of funds that Congress had expressly declined to authorize. The likely rebuke would come by way of a legal mechanism to negate the president’s emergency declaration, which he claims permits him to spend unused but unauthorized funds on his promised border wall. He would no doubt veto this negation.

While all this was going on, The New York Times revealed that the FBI and the CIA declined to authorize a top-secret security clearance for the president’s son-in-law, Jared Kushner, because they claimed he was less than candid with them and that the president overruled them.

It was lawful for the president to do this, but it was extremely dangerous and profoundly unwise. It undermined the intelligence and law enforcement communities, demeaned those who obtained such clearances by hard work and merit, and has exposed the nation’s most carefully guarded secrets to a person who American intelligence believes is naive and susceptible to foreign inducements to reveal what he knows.

Hidden in the Cohen testimony was an oblique reference to alleged bank and tax fraud that Cohen claimed he helped Trump commit, contributed to Trump’s wealth and has the present interest of federal prosecutors in Manhattan. Many of these events took place more than five years ago and thus are not subject to federal prosecution, so why would prosecutors be interested in them?

Here is where RICO comes in. RICO is the acronym for a Nixon-era federal statute, the Racketeer Influenced and Corrupt Organizations Act, originally enacted to target the mob. It permits federal prosecutors to reach back 10 years to find any two criminal acts, which need not be proven beyond a reasonable doubt; prosecutors need only demonstrate that they were more likely than not to have occurred. Then the feds can seize three times the wealth that the perpetrators of these schemes amassed. That could bankrupt Trump.

The president has serious and powerful tormentors whom he cannot overcome by mockery alone. He needs to do more than demean them with acerbic tweets, because many of those tormentors can legally cause him real harm. He needs to address these issues soberly, directly and maturely. Can President Trump survive all this? Yes — but not if he has another week like the last one.

Copyright 2019 Andrew P. Napolitano.

 
• Category: Ideology • Tags: Donald Trump, North Korea, Robert Mueller 
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Earlier this week, House Speaker Nancy Pelosi told a group of supporters and journalists that in her view, gun violence is the real emergency. Such a statement, in the context in which she made it, should send shivers down the spines of all who believe in personal liberty protected by the Constitution.

Notwithstanding the terrifying analogy she made about gun violence — terrifying to those who believe in the individual right to keep and bear arms as articulated by the Second Amendment and interpreted and upheld by the Supreme Court — Pelosi wasn’t really speaking about guns. She was speaking about the presidency and the Constitution.

Here is the back story.

When President Donald Trump finally signed legislation two weeks ago to keep the federal government financed and open — legislation substantially similar to bills he had declined to sign in late 2018 and again in early 2019, bills that declined to give him the $5.7 billion he requested to build a wall at the southern border of the United States — he also issued a proclamation declaring a national emergency at the southern border.

He based his emergency proclamation upon anecdotal evidence that more folks were attempting to enter the United States from Mexico than the Border Patrol and the southwestern states’ safety nets could accommodate and that many of these would-be migrants were “bad people.” He produced no evidence to back up his emergency claims. When 58 former high-ranking federal national security folks — including a former Democratic secretary of state and a former Republican secretary of defense — directly repudiated the president’s stated basis for his emergency, the White House did not even respond.

As well, weeks before he signed the emergency proclamation, President Trump repeatedly offered that the threat of it was just a negotiating technique aimed at bringing House Democrats to the White House for a sit-down. And as he was announcing the proclamation itself, he boasted that he “didn’t need to do this.”

Trump’s proclamation directed the departments of Defense and Homeland Security to divert unspent funds in their budgets — funds directed to be spent on specified items by legislation passed by Congress and signed by former President Barack Obama and by President Trump himself but not yet spent — to build a 55-mile stretch of what he says will be a 1,000-mile wall.

As I have written in this column and articulated on Fox News Channel, such executive action is unlawful, as it constitutes a presidential intrusion into an area of federal behavior — spending money — that the Constitution reposes exclusively in the Congress. In the famous Steel Seizure Case in 1952, when President Harry Truman ordered the employment of nonunion workers at government expense to run strike-closed steel mills after Congress declined to do so, the Supreme Court blocked him from doing just what President Trump is attempting to do — spending money in defiance of Congress.

A generation after the Supreme Court rebuked Truman — during the presidency of Gerald Ford — Congress did grant the president the power to declare emergencies, but these declarations cannot be contrary to the Constitution, and they cannot give the president more lawful authority than the Constitution gives him.

Though the 1976 statute interestingly fails to define just what constitutes a presidential emergency, the courts have concluded that it consists of the onset of a sudden and unanticipated event that demands government action to preserve life, liberty or property — an event the ordinary levers of governmental power are insufficient to address. But it does not — and constitutionally cannot — authorize the president to spend money that Congress has expressly declined to spend.

Now, back to Speaker Pelosi and her comment about guns. Her constitutional argument (and I agree with her, which rarely happens) is that not only may the president not spend contrary to congressional wishes but also he cannot claim that his own declaration of a national emergency gives him another source for presidential power — in this case, the ability to condemn private property and build a wall on it.

All presidential powers come only from the Constitution — and from no other source. Were that not the case, were a president able to characterize any state of affairs as an emergency and thereby give to himself the lawful power to address it extraconstitutionally, that would do irreparable violence to the Constitution and would effectively transform the president into a prince.

Under President Trump’s theory of emergency powers, a President Pelosi could declare that gun violence is an emergency and then confiscate handguns. Or a President Cory Booker could declare that health care is an emergency and then spend unauthorized funds purchasing health insurance for those who lack it. Or a President John Bolton could declare that North Korea and Iran pose emergency threats to Los Angeles and New York, respectively, and then bomb the threatening countries back into the Stone Age.

You can see the wisdom of Pelosi’s slippery-slope fear. If President Trump can get away with this, there will be no stopping his successors — no matter who they are.

The Constitution’s separation of powers — Congress writes the laws, the president enforces them, the judiciary says what they mean; Congress declares war, the president wages war, the judiciary interprets the legal effects of war on domestic law — was not established to fortify any of the three branches. It was crafted to keep each of those branches out of the business of the other two — and thereby limit the reach of each branch and thus keep federal power separated and diffused.

The Framers knew that separated and diffused federal power would reduce the near occasions for interfering with the personal liberty of everyone in America. That’s why it is integral to the Constitution.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump 
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Last week, President Donald Trump followed through on a threat he had been making for months. It was not a blistering or insulting tweet. It was not an attack on the press or congressional Democrats. It was an attack on the Constitution.
Here is the back story.

In 2015, Trump began offering that as president, he would build a “big, beautiful wall” along the border of the United States and Mexico and that Mexico would pay for the wall. His stated purpose throughout the 2016 presidential campaign and beyond was that a wall is necessary to stop the onslaught of immigrants illegally entering the United States at places other than lawful ports of entry.

He also offered his personal view that many of the folks entering through these unapproved areas are gang members who are trafficking in drugs and human slavery.

After the president of Mexico rejected paying for a wall, Trump asked Congress to do so. Curiously, he did not ask for the wall payment during the first two years of his presidency — when Republicans controlled both houses of Congress — but waited until the Democrats, who largely oppose the wall, were in control of the House.

So determined has he been to build a wall — any wall, so as to be able to assert that he has fulfilled a campaign promise — that he has dropped his demand that Mexico pay for it, modified his demand that it even be a wall (because his own Border Patrol folks told him that a wall would impair their ability to observe behavior on the south side of it) and reduced the length of his proposed barrier from 1,000 miles to 55 miles. Congress still refused.

So determined has he been to build a barrier of any length that he rejected budgetary measures that had been passed by both the Republican Senate and the then-Republican House, and permitted about one-third of the federal government to shut down for 35 days at the end of 2018 and the beginning of 2019. During negotiations, he demanded $5.7 billion as a down payment for his $25 billion wall. Then, seeing the misery the shutdown caused, he relented and signed essentially the same spending legislation that had been passed before and that he had rejected, though it was only for three weeks. He continued to demand $5.7 billion, but all Congress would give him was $1.4 billion for border security, much of it not for a wall and none of it for where he wants to build.

After he signed the legislation with little money for the wall, he signed an executive order declaring a national emergency at the U.S.-Mexico border. He described the migrants there as being engaged in an “invasion,” so he ordered the departments of Defense and Homeland Security to divert unspent appropriations, money authorized by Congress for other purposes, to building a wall.

Was it legal for him to do that? In a word: No. As my colleagues at The Wall Street Journal wrote last week: President Trump, meet Justice Jackson. Robert Jackson was the last attorney general of the United States and the last justice of the U.S. Supreme Court never to have graduated from law school. He was also a gifted jurist who played a pivotal role in a famous case in 1952.

In 1952, when American steelworkers went on strike and the U.S. military was fighting the Korean War, President Harry Truman asked Congress for the authority to occupy the steel mills and pay nonunion workers to replace the strikers. When Congress refused, Truman declared a state of emergency and directed his secretary of commerce, Charles Sawyer, to hire workers at federal expense to operate the mills.

When the mills’ owners challenged Truman’s order, a federal district judge enjoined the president from enforcing it, and the Supreme Court upheld the injunction. Youngstown Sheet & Tube v. Sawyer, known as the Steel Seizure Case, held that the president was without authority to occupy private property and pay others to do so without express appropriations from Congress because the Constitution defines clearly that no federal dollars can be spent without an appropriation by Congress.

Now, back to Justice Jackson. Rarely in Supreme Court history has a concurring opinion been cited and relied upon by future courts more than the majority opinion, but this case is the exception. In concurring with the majority on the court, Justice Jackson offered his now iconic views of the presidency vis-a-vis Congress under the Constitution.

When the president acts pursuant to authority granted to him by the Congress in an area of government delegated to him by the Constitution, his authority is at its peak, and he is free to exercise it as he sees fit. When he acts in an area as to which the Congress has been silent, he acts in a twilight zone and can succeed only if the area of his behavior is delegated to him under the Constitution and if he enjoys broad public support.

But when the president acts in an area that the Constitution gives exclusively to Congress — such as spending money — and when he acts in defiance of Congress, his acts are unconstitutional and are to be enjoined.

Years later, Justice Anthony Kennedy would explain that presidents cannot act as if they were Congress any more than Congress can act as if it were the president. They cannot constitutionally exchange roles voluntarily, much less by defiance. This underscores the separation of powers. It is the most integral unique aspect of our Constitution. James Madison argued that it preserves personal liberty by keeping both the president and the Congress in check — even if it means they are sometimes at tension with each other.

President Trump’s emergency declaration would be viable, though probably unsubstantiated factually, if it did not involve spending money. But by spending money not unauthorized by Congress, he has failed to uphold the Constitution, which he has sworn to preserve, protect and defend.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
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While the public discourse has been consumed over the realization that abortion physicians actually let viable babies who survive late-term abortions die — as well as whether President Donald Trump or House Speaker Nancy Pelosi will blink first over the issue of congressional authorization for building a wall at the country’s southern border, to say nothing of the race- and sex-infused mess at the top of the government in Virginia — a profound free speech issue has been bubbling below the radar.

A former White House communications aide and former Trump campaign adviser who has written a blistering tell-all book about the Trump White House now finds himself in litigation about whether he can freely publish his book — which he has already done — and freely profit from it.

The former Trump friend and colleague is Cliff Sims, and his book is called “Team of Vipers.” It makes Chris Christie’s book about his bitter experiences with those around the president look as if it were written by Mother Teresa by comparison. The president and his folks, who knew of the book before it was published, apparently bristled at the stories related and allegations contained and opinions expressed in it.

This is an unhappy tale, not with regard to accuracy or fairness in reporting but with regard to the doctrine of fair comment and the natural and constitutional right to the freedom of speech. Here is the back story.

When Sims began his time as an official of the Trump campaign, he signed a nondisclosure agreement, or NDA. NDAs typically bar the revelation of information gathered during one’s employment. They were nearly universal in the Trump campaign.

Sims’ NDA also provided that if there was any dispute between him and the campaign over the meaning of the NDA or whether he or the campaign violated it, that dispute would be resolved in secret arbitration, not in a public courtroom in front of a judge and jury. The NDA further provided for liquidated damages — a pre-agreed-upon amount of money that Sims would owe to the campaign if arbitrators found that he violated the NDA.

What about the freedom of speech and the right to a fair trial? The theory of an NDA is that the signer has knowingly waived those rights in return for the employment contemplated by the NDA. This is a quid pro quo. You get hired at a job you want; you get the pay and perks you sought; you agree to keep silent the secrets you learn. And if there is a dispute about what you can say and to whom you can say it, the dispute itself will be resolved in secret because you agreed to that in the NDA. If the arbitrators find that you violated the NDA, you owe a certain amount of money to the other party — in this case, $10 million to the Trump campaign — whether you caused damages in that amount or not.

That is at least the theory of how these NDAs are supposed to work. The courts do not favor these agreements, because they often stifle free speech — and often it is speech in which there is a material and serious public interest. Yet as they are between private parties, NDAs are enforceable.

In this case, the speech is about Trump — not as a candidate but as the president. So after Sims’ book was published and after the folks in the West Wing, where he worked for a year, read what he wrote, the Trump campaign — it still has a skeleton staff and lawyers on the payroll — filed a complaint with the designated arbitration entity, demanding the liquidated damages of $10 million.

Then Sims’ lawyers filed a complaint in federal district court, asking a judge to enjoin the arbitration proceeding because what Sims’ wrote he learned about while working for the government, not on the campaign. The campaign will no doubt point to an NDA it claims Sims signed when he began his tenure in the West Wing and argue that it applies as effectively as the NDA he signed for the campaign. Sims recalls no NDA at the White House.

Here is the problem for Trump. The campaign is not subject to the First Amendment, but the White House clearly is. Even if Sims did sign an NDA at the White House, the First Amendment bars the government from enforcing it, and several federal statutes protect whistleblowers, no matter what they agreed not to say at the outset of their work, unless it is classified material being protected. In the West Wing, Sims worked for the federal government, not Donald Trump personally and not the campaign.

Can the government punish speech of someone who agreed to remain silent? In a word: No. It cannot deter speech, and it cannot chill speech. Chilling takes place when government behavior is so oppressive that the potential speaker is afraid to speak about what he knows.

And if the speech is comment about public people or public policy, it is protected by the doctrine of fair comment. That is a Supreme Court rubric underscoring the truism that the whole purpose of the First Amendment is to protect and encourage open, wide, robust speech about the government — speech that sheds light on dark government corners, speech that is unafraid of and immune from the slightest whiff of government redress, speech that can be harsh in tone and discomfiting in delivery.

It is that brand of public free speech that the Framers intended to protect by the First Amendment. As one of President Trump’s no-holds-barred predecessors famously said, “if you can’t stand the heat, get out of the kitchen.”

If presidents can use legal artifices to punish the speech they hate and fear, they are no longer presidents in a free society. They are princes in an empire.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Freedom of Speech 
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Much has been made lately of language in a recently enacted New York state statute that permits abortion up to the time of birth if necessary to preserve the life or health of the mother. New Jersey has had the same provision for two generations via a regulation of the Board of Medical Examiners.

Sadly, when New York Gov. Andrew Cuomo signed the new legislation into law two weeks ago, he did so in a joyful and celebratory atmosphere. What moral person could find joy in this?

The joyless debate over the issue of how late in a pregnancy is morally or legally too late for abortion was crystalized when the Virginia General Assembly was prepared to vote last week on legislation nearly identical to New York’s, only to have that legislation inadvertently sabotaged by one of its most ardent supporters, Gov. Ralph Northam, a pediatric neurologist.

When Gov. Northam was asked on a Richmond radio show how the law would address a baby’s surviving an abortion procedure in the ninth month of pregnancy and his cold and startling answer was that the proposed legislation would permit the mother and the physician to let the unwanted baby passively die, outrage ensued, and the legislation was defeated by one vote.

That outrage was soon diverted to Gov. Northam’s fitness for office, not over his abortion comment but because his medical school yearbook page showed a photo with a person in blackface and another in Ku Klux Klan garb — together depicting horrid, hateful, hurtful imagery reminiscent of an awful white supremacist-dominated time in American history that took bloodshed to erase. This shocking revelation and the defeat of the proposed Virginia legislation changed the public debate from letting babies who survive abortion procedures die to ridding the Virginia government of a potential, likely or former white supremacist.

Gov. Northam at first apologized, not for supporting legislation that would permit the passive deaths of unwanted babies but for his youthful blackface-posed photo. Then, on second thought, he denied that the photo was of him. Then political hell broke loose among Democrats who want him out of office.

But the issue remains and cannot be buried by the firestorm over the governor’s 35-year-old yearbook page: What is the legal status of a baby who survives a late-term abortion procedure? Here is the back story.

In January 1973, the Supreme Court issued two abortion decisions on the same day. The better known of the two, Roe v. Wade, has been the fulcrum for political, legal, moral and religious debate as fierce as any this country has seen since the abolitionist movement challenged slavery in the era before the War Between the States.

Roe established that the fetus in the womb, notwithstanding human parentage and the possession of all the genomic material needed to develop into a full postnatal human, is legally not a person. This echoed another Supreme Court decision, Dred Scott v. Sandford, which was in the abolitionist era and effectively denied the personhood of African-Americans.

The personhood of a human fetus is not a mere academic question. If the fetus is a person, then it is protected from abortion by the Fifth and 14th amendments to the Constitution, which command the government to protect equally the lives of all people. But Roe did not stop with the personhood issue. It also decreed that the states may not regulate abortions in the first trimester of a woman’s pregnancy, may regulate in the second trimester only for the health of the mother and may prohibit or permit abortions in the third trimester.

Yet here is the kicker, which has been below the Roe radar screen while 55 million babies have had their lives snuffed out in the past 46 years. Roe decreed that all states must permit abortions at any time in the pregnancy if necessary to save the life or preserve the health of the mother. Pregnancies that threaten the life of the mother are extremely rare, thanks to modern medicine. However, thanks to Roe’s little-known companion case, Doe v. Bolton, the phrase “the health of the mother” can mean the physical, mental, psychological or emotional health of and (inexplicably) the age of the mother.

Stated differently, under Roe v. Wade and Doe v. Bolton, if a mother satisfies a physician that she would suffer emotionally if she were to carry her baby to term or is too old to be a mother, in all states in the union, she can have an abortion at any time in her pregnancy — even at the end of the ninth month.

Now, back to the question put to Gov. Northam. Suppose the baby is not butchered in the womb but survives and is delivered alive. When the Philadelphia abortionist Kermit Gosnell was confronted with this, he used his scalpel to stab babies to death. At his murder trial, at which he was convicted, the prosecution presented evidence to show that if he had passively allowed the born-alive babies to choke or starve to death, he would not have committed a crime.

Physicians are taught from day one, “First, do no harm.” What physician could let a baby die?

The dirty secret of abortion law is that mothers and abortion physicians may legally let unwanted babies born alive suffer and die with impunity. What about personhood? Isn’t a living baby a person entitled to the equal protection of the laws? Under the natural law, yes. Under the Constitution, yes. Under Roe v. Wade and Doe v. Bolton, no.

No society that permits the active or passive killing of people because they are unwanted can long survive. No society that defines away personhood has any claim to knowing right from wrong. Whose personhood will the government define away next?

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Abortion 
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Last Friday, on a quiet residential street at 6 in the morning, the neighborhood exploded in light, noise and terror. Seventeen SUVs and two armored vehicles arrived in front of one house. Each vehicle had sirens blaring and lights flashing.

The house, which abutted a canal, was soon surrounded by 29 government agents, each wearing military garb, each carrying a handgun and most carrying high-powered automatic rifles.

In the canal were two amphibious watercraft, out of which more heavily armed government agents came. Circling above all this was a helicopter equipped with long-range precision weaponry and high-powered spotlights.

Four agents approached the front door to the house. Two held a battering ram, and two pointed their rifles at the door. One of the agents shouted and banged on the front door until the terrified owner of the house emerged, barefoot and wearing shorts and a T-shirt. He was greeted in the dark at his open front door by two rifle barrels aimed at his head.

This was not a movie set; it was not a foreign city in a war zone; it was not the arrest of the Venezuelan opposition leader in Caracas. It was Middle America, Fort Lauderdale, Florida. The agents worked for the FBI, and the target of this operation was not a drug kingpin or a terrorist operative or a kidnapper of babies. It was a peaceful American in his own home — a political operative and longtime friend of President Donald Trump’s, named Roger Stone.

Why were there more FBI agents sent to arrest Stone than Navy SEALs sent to kill Osama bin Laden? Why jackboots in the morning in America? Here is the back story.

Stone has been both a paid formal adviser and an unpaid informal adviser to Trump for 40 years. He was fired from Trump’s presidential campaign during the summer of 2015, but he continued to work on his own to help Trump defeat Hillary Clinton in the 2016 presidential election. Some of that help — according to the government — involved the release of embarrassing Clinton emails that had probably been hacked by Russian agents.

Last Thursday, one of special counsel Robert Mueller’s grand juries indicted Stone on five counts of lying to Congress, one count of witness intimidation and one count of obstruction of justice. His Gestapo-like arrest followed his indictment by just a few hours.

Stone was represented by counsel throughout the time of his testimony before Congress last year. He was the recipient of grand jury subpoenas for his text messages, his emails and other records — all of which, through his counsel, he surrendered. He claims that when asked by members of the House Intelligence Committee about certain aspects of these, he innocently forgot about them. Who could remember each of 1 million texts and emails?

In the real world — where the influence of politics into law enforcement is kept to a harmless minimum — defense counsel is generally known to prosecutors throughout their investigation of a target. According to Stone, federal prosecutors have known for a year who his lawyers are. Also in the real world, when a defendant has been indicted for a nonviolent crime, has no criminal record and is not a flight risk or an imminent danger to society, prosecutors inform defense counsel of the indictment, send the defense counsel a copy of it and request the peaceful and dignified surrender of the indicted person.

In the current, unreal world — where politics deeply infuse law enforcement — prosecutors use brute force to send a message of terror to innocent defendants. Like all defendants at the time of arrest, Stone is innocent until proven guilty beyond a reasonable doubt.

What message does brute force send? It is a message of terror, and it has no place in American life. As if to add embarrassment to terror, the feds may have tipped off CNN, which carried all this live in real time.

When I interviewed Stone on Fox Nation — after a judge released him without requiring him to post bail — he told me that he will not cave to this terror but he is willing to speak with the prosecutors. Stone wavered a bit when I pressed him on the nature and extent of any communication between his lawyers and Mueller’s team and on the nature of any cooperation by him personally with Mueller. As a practical matter, his lawyers must communicate with Mueller’s team to address the logistics of pretrial events, as well as their discovery of the evidence in the government’s possession.

One item in the government’s possession that is very problematic constitutionally is the transcript of the testimony Stone gave to the House Intelligence Committee, wherein the indictment accuses Stone of lying. Because that testimony is classified, Stone is not permitted to see it, and his lawyers — who may view it only in a secret facility — may not copy it.

How can they defend against these charges? How can it be that the government has a piece of paper that allegedly is proof of the crime charged and the defendant’s lawyers may not copy it? Didn’t the government waive the classified nature of this document by Stone’s very presence at the hearing where the document was created? What remains of the constitutional guarantee of confronting one’s accusers and challenging their evidence?

If Stone goes to trial, the soonest it could be held is early 2020 — in the midst of the Iowa caucuses and the New Hampshire primary and 2 1/2 years after Mueller’s appointment.

No innocent American merits the governmental treatment Stone received. It was the behavior of a police state where the laws are written to help the government achieve its ends, not to guarantee the freedom of the people — and where police break the laws they are sworn to enforce. Regrettably, what happened to Roger Stone could happen to anyone.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
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Last week, the investigative arm of BuzzFeed sparked a media frenzy with a report claiming that two federal law enforcement sources had informed its reporters that Michael Cohen, President Donald Trump’s former lawyer and confidant, had told special counsel Robert Mueller that Trump counseled him to lie to Congress about the status of Trump’s attempts to build Trump Tower Moscow.

The BuzzFeed piece also claimed that the sources revealed that Mueller’s folks had received documentary evidence from Cohen to back up his allegations.

The reason for the media frenzy was the realization by House Democrats that counseling someone to lie to a tribunal constitutes the crime of subornation of perjury and, if the tribunal is engaged in a legitimate investigation, the crime of obstruction of justice — and both of those crimes are impeachable offenses.

After the BuzzFeed piece had stirred the pot of media interest and Democrats’ lust for Trump’s political scalp, Mueller issued a very rare one-liner stating that the references in the BuzzFeed piece to what he had received from Cohen were “not accurate.”

So, did Mueller’s use of “not accurate” mean that Cohen did not, in fact, tell Mueller that the president of the United States had counseled him to lie under oath, or did it mean that Cohen made the allegation that Trump had counseled him to lie but Cohen did not, in fact, give Mueller any corroborating evidence of his allegation? Here is the back story.

In addition to tax evasion and bank fraud, Michael Cohen pleaded guilty late last year to lying to Congress. Cohen lied under oath when he told congressional investigators that Trump’s efforts to build Trump Tower Moscow ceased in January 2016 — because, according to Cohen, they actually ceased in June 2016. Cohen said he lied because Trump had asked him to do so and because Cohen wanted his testimony to be consistent with Trump’s public campaign narrative that he had no business dealings in Russia.

The BuzzFeed saga is not all black-and-white and has been exacerbated considerably by the president’s public-facing lawyer, Rudolph Giuliani. We know that Mueller’s PR person knew of the BuzzFeed piece days in advance and had numerous texts and emails with the BuzzFeed reporters. He did not discourage its publication or challenge its conclusions until 24 hours after publication. We know that neither Cohen nor his lawyers challenged the accuracy of the BuzzFeed piece.

We also know that Giuliani actually went beyond the BuzzFeed allegations. He explained to a reporter for The New Yorker that Mueller has not claimed that the Cohen allegation that President Trump counseled Cohen to lie was inaccurate; rather, the inaccurate statement in the BuzzFeed piece was its reference to the existence of texts and emails corroborating what BuzzFeed claims Trump told Cohen.

Giuliani also told the New Yorker reporter that Trump did, in fact, speak with Cohen about his testimony in advance of it. Do you think Trump told Cohen to tell the truth? That’s what the New Yorker reporter asked Giuliani. Giuliani said he knows that Trump did not counsel Cohen to lie because he listened to the tapes. Tapes? What tapes? There are tapes of the Trump-Cohen conversations about Cohen’s intended congressional testimony?

Then Giuliani said he misspoke. There are tapes — Cohen infamously recorded his conversations with his most famous client — but not about this. Giuliani then said he had examined emails and text messages and other documentary evidence and he had not found any that corroborated Cohen’s claims; so that’s what Giuliani says Mueller said was not accurate in the BuzzFeed article. “There is no corroboration that the president told him to lie.”

By narrowing the application of “not accurate,” by admitting Trump spoke to Cohen about his testimony in advance of it, by suggesting that there are tapes of Trump and Cohen discussing Cohen’s testimony but then saying he misspoke, and by stating that the Trump Organization was negotiating with Russian officials for Trump Tower Moscow up to the date of Trump’s election and then saying that that was just “a hypothetical,” Giuliani has reinforced his own image and the image of his client as being unconcerned with the truth.

Giuliani may be overly histrionic, but he is not stupid — though his legacy as a prosecutor and mayor is unraveling. My guess is he knows that Mueller has much evidence of a criminal conspiracy to receive something of value (the Hillary Clinton emails) between the Trump campaign and Russian intelligence and subtly is trying to tie Trump personally to it. Such a conspiracy would be a felony and produce criminal charges against all who were a part to the agreement. Giuliani also fears that Mueller will use the Trump-Cohen conversation as evidence of obstruction of justice by the president.

So why is Giuliani revealing all this to the media? Here’s why. He is following an age-old trial lawyer practice. If the government has evidence harmful to your client, it is easier for the public and the jury to accept the harmful evidence if defense counsel reveals it first, drop by drop, rather than permit the government to release it all at once like an anvil falling into a pond.

Giuliani has told friends that from time to time during his negotiations with Mueller on Trump’s potential interview by Mueller and his team, Mueller has shown a few of his cards. Stated differently, Giuliani probably knows some of the damning evidence Mueller has on his client and has chosen to leak it out slowly and even goofily to friendly audiences so that once Mueller unloads his findings, the shock will have been dulled.

Giuliani has also told friends that he has a client who is not paying him and who does not take his advice. Does any of this look good for Trump?

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: American Media, Donald Trump, Russiagate 
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Last weekend, The New York Times reported that senior FBI officials were so concerned about whatever President Donald Trump’s true motivation for firing FBI Director James Comey was that they immediately initiated a counterintelligence investigation of the president himself.

The Times reported that these officials believed that Trump may have intentionally or unwittingly played into the Kremlin’s hands by firing Comey so as to impair the FBI investigation into what efforts, if any, Russian intelligence personnel undertook in attempting to influence the 2016 presidential election and what role, if any, the Trump campaign played in facilitating those efforts.

Trump gave three public reasons for firing Comey. He told Comey he was fired because he had dropped the ball in the FBI investigation of Hillary Clinton’s use of private servers for her official work as secretary of state by declaring publicly that Clinton would not be prosecuted. He told his Twitter followers that he fired Comey because Comey’s a “total sleaze.”

And he told Lester Holt of NBC News that he fired Comey because he would not shut down the FBI investigation into the Russian behavior during the 2016 campaign and would not drop the prosecution of his former national security adviser, retired Lt. Gen. Michael Flynn. It is the reasons he gave to Holt that, according to the Times piece, impelled senior FBI officials to believe that the president himself might be a national security risk.

Can the FBI investigate the president? In a word: Yes. Here is the back story.

The FBI conducts generally two types of investigations — criminal and counterintelligence. Criminal investigations are intended to find the people who have already committed particular crimes, with agents lawfully and constitutionally gathering evidence against them under the supervision of a federal prosecutor and in conjunction with a federal grand jury.

A counterintelligence investigation is aimed at shoring up national security by looking at people who may be breaching it. This type of investigation often involves surveillance of the suspected people. A national security breach is any event — criminal or not — that may have enabled foreign enemies to acquire classified secrets or influence government decisions.

The origins of criminal and counterintelligence investigations are often murky and at times inscrutable. There are two legal standards for commencing any investigation of anyone. The first is “articulable suspicion.” That is a low standard that requires no hard proof of criminal behavior or national security breaches, but it is generally understood to mean that there are reasons that can be stated for employing government assets to investigate a person’s behavior and that the reasons are rational and consistent with similarly situated investigations.

The other requirement is that the articulable suspicion be accepted by a prosecutor, as the FBI alone cannot commence any investigation. Of course, FBI agents can chase a kidnapper without getting a prosecutor’s approval. But in a white-collar case — when the target of the investigation does not present an immediate danger to the public and the evidence of the target’s criminality or interaction with foreign governments is not generally known — FBI agents must present the reasons for the commencement of their investigation to prosecutors, who may approve and authorize or decline and reject the investigation.

In the case of any FBI-harbored articulable suspicion about the president of the United States — for criminal or counterintelligence matters — my own view is that the Times story is probably accurate. If so, only Deputy Attorney General Rod Rosenstein could have authorized this counterintelligence investigation of Trump.

Whatever this investigation was — and for whatever purposes it was commenced — it was relatively short-lived in the hands of those FBI officials who suspected Trump’s motivations. That’s because Trump fired Comey on May 9, 2017, and Rosenstein appointed Robert Mueller as special counsel to conduct an independent investigation of alleged Russian influence in the campaign and any Trump campaign compliance just eight days later, on May 17, 2017.

At that moment in time, Mueller and his team assumed whatever investigation the FBI and Rosenstein had commenced of Trump and the then-1-year-old investigation of the Russians and the Trump campaign that had begun in the Obama administration.

At the same time this was going on, the FBI secured surveillance warrants of various Trump campaign officials from the Foreign Intelligence Surveillance Court. This use of the Foreign Intelligence Surveillance Act — which theoretically is limited to counterintelligence investigations of foreign agents in the United States — constituted an end run around the Fourth Amendment.

Stated differently, the Fourth Amendment requires probable cause of crime in order to obtain a surveillance warrant, but FISA only requires probable cause of communicating with a foreign person in order to get the same warrant.
Why should anyone care about this? The dual purpose of the Fourth Amendment is to protect personal privacy in persons, houses, papers and effects, as well as to compel law enforcement to focus only on those people as to whom it has probable cause of guilt. When the feds can bypass these profound requirements, they are violating and rejecting the dual purpose of the amendment, which they have sworn to uphold.

FISA warrants are general warrants. General warrants basically authorize the bearer to search where he wishes and seize what he finds. One FISA warrant authorized surveillance of all 115 million Verizon customers. General warrants were the totalitarian practice of British officials in Colonial America, and the Fourth Amendment was enacted expressly to prevent them.

Trump is correct when he argues that FISA has corrupted and seduced some FBI officials and agents into violating the Constitution — yet they keep getting away with it. The insatiable appetite of government officials to spy in violation of the Constitution has infected the rule of law. If they can do this to the president, they can do it to anyone.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, FBI, Russiagate 
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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