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The bad news for President Donald Trump keeps coming his way, notwithstanding a generally bravura performance on the foreign stage this past week in Riyadh, Jerusalem and Vatican City. Yet while he was overseas, his colleagues here in the United States have been advising him to hire criminal defense counsel, and he has apparently begun that process. Can the president be charged with obstructing justice when he asks that federal investigations of his friends be shut down?
Most legal scholars agree that the president cannot be prosecuted while in office and that the appropriate remedy for presidential criminal wrongdoing is impeachment.

Impeachment, of course, is traumatic for the country, as it involves Congress’ dislodging from the presidency the person validly, legally and constitutionally entitled to hold it. Under the Constitution, the House of Representatives serves as a sort of grand jury and determines whether to impeach by a simple majority vote. The charge must be for treason, bribery or another high crime that strikes at the integrity of the government. Obstruction of justice — interfering with a criminal prosecution — is probably one of those crimes.

I say “probably” because, though the Supreme Court has not ruled on this, it formed the basis of the charges brought against President Richard Nixon and those prosecuted against President Bill Clinton, and the legal community has generally accepted obstruction of justice as the type of high crime intended by the Framers to be a basis for impeachment. Nixon resigned from office prior to impeachment. Clinton was impeached by the House but acquitted by the Senate, which failed to muster the two-thirds majority needed to convict him and remove him from office.

What is the case against President Trump?

The short answer is: So far, nothing. Though I did not vote for Trump and though I differ with him on many issues and on his tone and manner of governing, he is the president, and I want him to succeed in shrinking the government and liberating the free market. Nevertheless, there are forces at work inside the government and elsewhere that have leaked a disturbing series of private communications involving the president. This leaked information can fairly be characterized as painting a picture of a president fearful of a criminal investigation, long underway by the FBI, and determined to impede it.

The New York Times has reported on Trump’s efforts to persuade then-FBI Director James Comey to cease the investigation of retired Army Lt. Gen. Michael Flynn, Trump’s former national security adviser, as well as of the Trump campaign. The unsupported allegations against Flynn are that he was a secret foreign agent at the time he was the president’s national security adviser. The unsupported allegations against the Trump campaign are that it conspired with Russian intelligence agents to influence the presidential campaign by hacking into the computers of Trump’s adversaries.

Trump’s detractors claim that he attempted to place material impediments between the FBI and his former colleagues, including Flynn, when he asked Comey to dial back the investigation and then fired Comey when he declined to do so. The Washington Post has reported that Trump again attempted to place roadblocks in the way of the FBI investigation by asking the director of national intelligence and the director of the National Security Agency to deny publicly the existence of any evidence of Trump campaign and Russian collusion during the campaign.

Both directors declined to do as the president wished, even though one of them, Director of National Intelligence Daniel Coats, had just been appointed by the president and the other, Adm. Mike Rogers, is legally obligated to follow the orders of the president as commander in chief, unless he believes that the orders are unlawful.

Pertinent to all of this is the concept of the unitary executive. That concept, which was accepted in theory by the federal government until the Watergate era, states that the president is the chief executive officer of the federal government and therefore everyone in the executive branch works for him. Because he and he alone in the executive branch is answerable to the voters, this theory relates, there can be no people or entities in that branch that are not subject to him. Were this not so, then vast areas of governance would take place and vast amounts of government resources would be spent by those not answerable to the people, and that would violate the right of the people to be governed by a government to which a majority of the voters in the states have consented.

Under the unitary executive theory, the FBI director and the director of national intelligence, as well as the director of the NSA and everyone else who works in the executive branch, are obliged to follow all orders and requests of the president or resign and then reveal the reasons for their resignations. Under the theory of those who champion the resistance to what they claim were Trump’s efforts to impede the FBI investigations, the resisters have a moral and ethical duty to pursue wrongdoing that is arguably violative of federal law, notwithstanding the president’s wishes — especially if that wrongdoing has been committed or facilitated by the president himself. They argue that if President Trump does not want Flynn or his own campaign colleagues to be prosecuted for whatever reason, he can pardon them and thereby legally and constitutionally terminate the investigations. There would be enormous political consequences for doing that but no legal consequences for the people pardoned.

Which side is right under the law? There is no generally accepted answer here. But if Donald Trump wants to stay in office, he needs to be well-grounded in the powers of the presidency and their just and lawful use. He could govern by prudent public orders and take his chances, or he could govern by private personal intimidations and take his chances. But the latter would be far more dangerous to his tenure in office.

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

 
• Category: Ideology • Tags: Deep State, Donald Trump 

In a period of seven days this month, President Donald Trump fired James Comey as director of the FBI and was accused of sharing top-secret intelligence data with the Russian foreign minister and the Russian ambassador to the United States, the latter a known Russian spy.

The Comey firing was clumsy and rude. Comey learned of it from FBI agents in Los Angeles who noticed reports of it on television monitors that they could see while he was speaking to them. The White House initially claimed Comey had been fired because of his poor judgment in the Hillary Clinton email investigation, in which he announced that she would not be indicted even though there was ample evidence to indict her and then reopened the case two weeks before Election Day even though there was no evidence to justify doing so.

Then the president said he had fired Comey because he objected to Comey’s public personality. Then the president claimed that though Comey had told him he was not the subject of any FBI investigation, Comey had not been investigating Trump administration intelligence community leaks with the same vigor with which he had been investigating allegations of collusion between Trump’s campaign and the Russian government.

Then Trump met with the Russian foreign minister and ambassador. Then someone who was at the meeting or privy to it afterward, American or Russian, revealed to The Washington Post that at the meeting, Trump had boasted of intelligence data related to the Islamic State group. Then Trump himself admitted sharing this intelligence with the Russians.

A leak of top-secret material by the president or by an anonymous source is potentially catastrophic, and the charge that the president himself revealed top secrets to a known Russian spy is grave, perhaps the gravest ever leveled at an American president in the modern era. The Americans and the Russians at the meeting with Trump denied that he had compromised intelligence sources or revealed the location of American military, but they did not deny that he had revealed top secrets.
All of these events took place in seven days. Here is the back story.

When Comey usurped the authority of the ethically challenged then-Attorney General Loretta Lynch and announced that Hillary Clinton would not be indicted for espionage — the failure to safeguard state secrets that had been given to her for safekeeping — even though there was a mountain of evidence of her guilt, it seemed to me that he was trying to have it both ways. He was trying to keep his job by pleasing both Republicans and Democrats. Instead, he grossly miscalculated and substantially irritated leadership in both parties, including Clinton and Trump.

At the same time he was exonerating Clinton legally while damning her politically, he was investigating the Trump campaign, about which he quite properly did not say a public word. And he authorized his agents to engage a former British intelligence agent to dig up dirt on candidate Trump and to pay him $50,000 for it. The story the agent dug up was so lurid and unbelievable that the FBI declined to make the payment.

Comey’s leadership of the FBI was flawed, but not so flawed as the reasons given for his summary firing. Those inconsistent reasons fed the Democrats’ narrative that Comey had been onto something in the Russia/Trump campaign investigation and the president had known it and wanted to derail it. The president has yet to deny this.

Though the president has complained that Comey failed to investigate leaks of intelligence data from within his administration, The Washington Post effectively accused the president himself of becoming the leaker in chief by revealing to the Russians information so secret that only a handful of Americans legally possessed it. That information consisted of the name of a city in Syria from which spies had reported that the Islamic State group was plotting to plant bombs on commercial airliners.

What is so secret about that? Intelligence data almost always requires reading between the lines. Doing so here reveals the country from which the intelligence came, as there is only one friendly country that has sufficient intelligence resources in that city to develop local human spies. That country, which the president did not name but which we know is Israel, at first threatened to cut off providing intelligence data to the U.S. because of the president’s private revelations but later said that all is forgiven. So, the president told the Russians where to find Israeli spies in Syria.

The fact that these revelations were private is of legal significance. Under federal law, the president can declassify any secrets, even the most highly sensitive and guarded ones. He can do so by whispering the secret into someone’s ear or by formally removing the secret from its classified status. But because he did not do the latter, the secret is still a secret — yet The Washington Post has this material and may now legally reveal it.

How can a newspaper reveal a top secret that the president has not made public? If someone reveals the secret to the newspaper, it can. The person who did so in this case committed a felony, and the president is right to be angered over it. That person is probably a member of the intelligence community bent on frustrating or destabilizing or controlling the Trump presidency. Because that person gave it to the Post and because there is enormous public interest in knowing what Trump told the Russians, the Post is free to publish it.

All of this demonstrates that rogue intelligence agents can engage in their own form of agitprop — agitation propaganda. And they can cause political harm with it. Yet the questions of whether Donald Trump revealed top secrets to the Russians and, if he did so, whether it was intentional or not and whether it was harmful to national security are questions to which we are entitled to answers. And was Jim Comey fired for getting too close to the truth or not close enough?
Why do these questions keep coming?

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

 
• Category: Foreign Policy • Tags: Donald Trump, Israel, Russia 

Last week, the U.S. House of Representatives crafted a partisan compromise bill that endorsed and reinforced the Affordable Care Act, or Obamacare. This was done notwithstanding claims to the contrary by President Donald Trump and the House Republican leadership, who want us to believe that this bill, if it becomes law, will effectively repeal and replace Obamacare.

Obamacare is a stool with four problematic legs. The constitutional leg is the premise that the federal government has the lawful power to regulate the delivery of health care. The legal leg is the premise that the federal government is obliged to provide health insurance to everyone in America. The economic leg commands that everyone in the U.S. purchase and maintain health insurance. And the Orwellian leg says that every physician in the U.S. shall retain all patient records digitally and that federal bureaucrats shall have access to all those records.

None of that is changed in the House-passed bill. Here is the back story.

The original Obamacare proposal had the taxpayers foot everyone’s medical bills through a series of taxes, regulations and controls. That is the so-called single-payer system that former President Barack Obama dreamed of. It would have been much like the systems in place today in Great Britain, Canada and Australia, where one waits for months to see government-employed physicians who are stingy with government-owned medications and mired in red tape and long lines over government-financed medical procedures.

Even many of the Democrats who controlled both houses of Congress during Obama’s first two years in office were unable to accept that idea. In its place, they produced a 2,700-page piece of legislation, which candidate Trump vowed to dismantle — saying he favored a market-based, state-regulated system with no federal involvement, the kind we knew in the pre-Obamacare era.
None of those goals is reached by the House-passed bill.

Obamacare’s imposition of the federal government between all patients and their physicians was a radical departure from the traditional delivery of medical services in America. This was done with utter disregard to the constitutional constraints imposed upon Congress — whereby the regulation of health, safety and welfare was retained by the states — and by radically expanding federal power derived from the Constitution.

Congress’ favorite constitutional hook upon which to hang its regulatory hat has been the commerce clause. After more than a half-century of letting Congress characterize nearly any human activity as commerce — and thus regulable federally — the Supreme Court in 1995 required that only those behaviors that constitute or support a truly commercial transaction can be reached by the feds. The professions — medicine, law, architecture, engineering, university teaching, for example — though one pays for them, had never been considered to be commercial in the sense that they could be federally regulable, until Obamacare came along.
None of this is changed in the House-passed bill.

Under Obamacare, the federal government took over the regulation of health care from the states with a one-size-fits-all metric administered by faceless bureaucrats. I say faceless because when you go to your doctor today, she or he may need the approval of a federal bureaucrat to perform a procedure for you — a bureaucrat the doctor will never see, only read via a laptop.

None of this is changed in the House-passed bill.

Obamacare also established the duty of the federal government to provide health insurance for every American. No law before Obamacare ever attempted that ambitious unconstitutional improbability. When the Supreme Court accepted a constitutional challenge to the Social Security system, it ruled that the system consisted of taxing and spending — but created no legally binding obligation on the part of the federal government to spend in the future. Stated differently, under Obamacare, the feds can take your money that they have promised you they will spend on your health care and spend it as they see fit.

None of this is changed in the House-passed bill.

The individual mandate in Obamacare requires that every person in America have health insurance. It also requires employers of more than 50 people to provide health insurance for all employees who work for those employers for more than 30 hours a week. The failure to provide or maintain a health insurance policy by employers or individuals triggers the imposition of a tax by the IRS.

Under the House-passed bill, your employer no longer has to provide you with health insurance, but you must still maintain your own health insurance. Instead of paying the IRS if you let your coverage lapse, you have to pay a $3,000 annual penalty to your insurance carrier — once you do sign up — for every year you lacked coverage.

What kind of a repeal is that?

And the faceless bureaucrats still reign. The House-passed bill permits the feds to decide whether your doctor is treating you in a manner consistent with the availability of government resources and to administer Obamacare’s thousands of minute politically driven regulations.

By definition, Obamacare will soon be a failure because it causes the expenditure of more money than it takes in. Eventually, it will have no cash. But Barack Obama may have subtly succeeded in changing the landscape of thinking about federal involvement in health care. For those who believe that the Constitution means what it says, it was disheartening to see President Trump and so many Republicans in Congress who once defended the free market now assume that all Americans want the feds to care for them and that somehow the Constitution permits it.

Thomas Jefferson and Alexander Hamilton rarely agreed on principles of government. But they did agree that when the public treasury becomes a public trough and the people recognize that, the people will send to the federal government only those who will bring home the biggest piece of the federal pie. The House-passed bill was produced by federal government representatives who manifest that.

That’s the same federal government that can’t deliver the mail.

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

 
• Category: Ideology • Tags: Obamacare 

Late last week, President Donald Trump told CBS News that domestic surveillance of American citizens should the “No. 1” topic of inquiry until we can find out “what the hell is going on” with it. Also late last week, the National Security Agency — the federal government’s 60,000-person-strong domestic spying agency — announced that it would voluntarily hold back on its more aggressive uses of Section 702 of the Foreign Intelligence Surveillance Act.

That section permits the NSA to capture communications between foreigners and Americans without a warrant from any court, even though the NSA has its own secret court that has granted well over 99 percent of applications for spying brought to it.

Yet the NSA has convinced the Foreign Intelligence Surveillance Court that when it captures the communications of a foreigner and an American and those communications refer to a third person who is an American, Section 702 extends the authority for warrantless spying to that third person, as well. And it extends to any person whom the third person is talking about — and so forth, out to the sixth level of communication.

If you do the math, this NSA-concocted, Section 702-generated, secret FISA court-approved logic permits warrantless spying on nearly everyone in the United States. So why did the NSA announce that it will pull back on the way it utilizes Section 702 as the basis for its mass spying?

Here is the back story.

FISA was written in the aftermath of the Watergate scandal, which involved illegal domestic spying. The purpose of FISA was to insert the judiciary between the NSA and its targets so as to ensure that there would be a consistent legal basis for the spying. What was that basis?

The Supreme Court has long characterized domestic spying as surveillance, and it has characterized surveillance as either a “search” or a “seizure” of communications. The Fourth Amendment requires judicially issued warrants for all government searches and seizures, and it mandates that those search warrants be based on probable cause of wrongdoing on the part of the person whom the government wishes to surveil and that the warrants themselves specifically describe the place to be searched or the person or thing to be seized.

Yet government lawyers, who have no opposition standing next to them when they appear in the FISA court, have convinced the court that the constitutional requirement of probable cause only applies to the government when it is engaging in law enforcement, not when it seeks intelligence data. So when the NSA asks the FISA court for authority to conduct surveillance, the FISA court complies, and it does so with warrants that do not specifically describe the place to be searched or the person or thing to be seized. These warrants typically authorize spying by ZIP codes or area codes or street addresses or telecommunications companies’ customer lists.

What the NSA does not tell the FISA court is that its requests for approvals are a sham. That’s because the NSA relies on vague language in a 35-year-old executive order, known as EO 12333, as authority to conduct mass surveillance. That’s surveillance of everyone — and it does capture the content of every telephone conversation, as well as every keystroke on every computer and all fiber-optic data generated everywhere within, coming to and going from the United States.

This is not only profoundly unlawful but also profoundly deceptive. It is unlawful because it violates the Fourth Amendment. It is deceptive because Congress and the courts and the American people, perhaps even the president, think that the FISA court has been serving as a buffer for the voracious appetite of the NSA. In reality, the NSA, while dispatching lawyers to make sophisticated arguments to the FISA court, has gone behind the court’s back by spying on everyone all the time.

In a memo from a now-former NSA director to his agents and vendors, leaked to the public, he advised capturing all data from everyone all the time. This produces information overload, as there is more data than can be analyzed; each year, it produces the equivalent of 27 times the contents of the Library of Congress. Therefore, safety — as well as liberty — is compromised.

The recent mass killings in Boston, San Bernardino and Orlando were all preceded by text messages and cellphone conversations between the killers and their confederates. The NSA had the digital versions of those texts and conversations, but it had not analyzed them until after the killings — because it has and has had too much data to analyze in a critical and timely manner.

So, why did the NSA announce that it is pulling back from its customary uses of Section 702? To give the false impression to members of Congress that it follows the law. Section 702, the great subterfuge, expires at the end of this year, and the NSA, which has spied on Donald Trump since before he was president, fears the debate that will accompany the efforts to renew it — hence its softening public tone.

The genius of the Fourth Amendment is that it serves as a two-edged sword. By requiring probable cause before judges can issue warrants to agents for surveillance, the amendment both protects the privacy of those uninvolved in wrongdoing by leaving them alone and compels federal agents to focus their appetite for intelligence and their need for evidence on only those they legitimately feel may have done wrong.

In the meantime, Trump knows that he has been the victim of overzealous and unlawful surveillance, and we can expect during the debate over renewal of Section 702 that he will have a more sober and constitutional view of all this than his predecessors have; and that may bring about more freedom and more safety.

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

 

Last weekend, The New York Times published a long piece about the effect the FBI had on the outcome of the 2016 presidential campaign. As we all know, Donald Trump won a comfortable victory in the Electoral College while falling about 3 million votes behind Hillary Clinton in the popular vote.

I believe that Clinton was a deeply flawed candidate who failed to energize the Democratic Party base and who failed to deliver to the electorate a principled reason to vote for her. Yet when the Times reporters asked her why she believes she lost the race, she gave several answers, the first of which was the involvement of the FBI. She may be right.

Here is the back story.

In 2015, a committee of the House of Representatives that was investigating the deaths of four Americans at the U.S. Consulate in Benghazi, Libya, learned that the State Department had no copies of any emails sent or received by Clinton during her four years as secretary of state. When committee investigators pursued this — at the same time that attorneys involved with civil lawsuits brought against the State Department seeking the Clinton emails were pursuing it — it was revealed that Clinton had used her own home servers for her emails and bypassed the State Department servers.

Because many of her emails obviously contained government secrets and because the removal of government secrets to any non-secure venue constitutes espionage, the House Select Committee on Benghazi sent a criminal referral to the Department of Justice, which passed it on to the FBI. A congressionally issued criminal referral means that some members of Congress who have seen some evidence think that some crime may have been committed. The DOJ is free to reject the referral, yet it accepted this one.

It directed the FBI to investigate the facts in the referral and to refer to the investigation as a “matter,” not as a criminal investigation. The FBI cringed a bit, but Director James Comey followed orders and used the word “matter.” This led to some agents mockingly referring to him as the director of the Federal Bureau of Matters. It would not be the last time agents mocked or derided him in the Clinton investigation.

He should not have referred to it by any name, because under DOJ and FBI regulations, the existence of an FBI investigation should not be revealed publicly unless and until it results in some public courtroom activity, such as the release of an indictment. These rules and procedures have been in place for generations to protect those never charged. Because of the role that the FBI has played in our law enforcement history — articulated in books and movies and manifested in our culture — many folks assume that if a person is being investigated by the FBI, she must have done something wrong.

In early July 2016, Clinton was personally interviewed in secret for about four hours by a team of FBI agents who had been working on her case for a year. During that interview, she professed great memory loss and blamed it on a head injury she said she had suffered in her Washington, D.C., home. Some of the agents who interrogated her disbelieved her testimony about the injury and, over the Fourth of July holiday weekend, asked Comey for permission to subpoena her medical records.

When Comey denied his agents the permission they sought, some of them attempted to obtain the records from the intelligence community. Because Clinton’s medical records had been digitally recorded by her physicians and because the FBI agents knew that the National Security Agency has digital copies of all keystrokes on all computers used in the U.S. since 2005, they sought Clinton’s records from their NSA colleagues. Lying to the FBI is a felony, and these agents believed they had just witnessed a series of lies.

When Comey learned what his creative agents were up to, he jumped the gun by holding a news conference on July 5, 2016, during which he announced that the FBI was recommending to the DOJ that it not seek Clinton’s indictment because “no reasonable prosecutor” would take the case. He then did the unthinkable. He outlined all of the damning evidence of guilt that the FBI had amassed against her.

This double-edged sword — we won’t charge her, but we have much evidence of her guilt — was unprecedented and unheard of in the midst of a presidential election campaign. Both Republicans and Democrats found some joy in Comey’s words. Yet his many agents who believed that Clinton was guilty of both espionage and lying were furious — furious that Comey had revealed so much, furious that he had demeaned their work, furious that he had stopped an investigation before it was completed.

While all this was going on, former Rep. Anthony Weiner, the estranged husband of Clinton’s closest aide, Huma Abedin, was being investigated for using a computer to send sexually explicit materials to a minor. When the FBI asked for his computer — he had shared it with his wife — he surrendered it. When FBI agents examined the Weiner/Abedin laptop, they found about 650,000 stored emails, many from Clinton to Abedin, that they thought they had not seen before.

Rather than silently examine the laptop, Comey again violated DOJ and FBI regulations by announcing publicly the discovery of the laptop and revealing that his team suspected that it contained hundreds of thousands of Clinton emails; and he announced the reopening of the Clinton investigation. This announcement was made two weeks before Election Day and was greeted by the Trump campaign with great glee. A week later, Comey announced that the laptop was fruitless, and the investigation was closed, again.

At about the same time that the House Benghazi Committee sent its criminal referral to the DOJ, American and British intelligence became interested in a potential connection between the Trump presidential campaign and intelligence agents of the Russian government. This interest resulted in the now infamous year-plus-long electronic surveillance of Trump and many of his associates and colleagues. This also produced a criminal referral from the intelligence community to the DOJ, which sent it to the FBI.

Yet this referral and the existence of this investigation was kept — quite properly — from the press and the public. When Comey was asked about it, he — quite properly — declined to answer. When he was asked under oath whether he knew of any surveillance of Trump before Trump became president, Comey denied that he knew of it.

What was going on with the FBI?

How could Comey justify the public revelation of a criminal investigation and a summary of evidence of guilt about one candidate for president and remain silent about the existence of a criminal investigation of the campaign of another? How could he deny knowledge of surveillance that was well-known in the intelligence community, even among his own agents? Why would the FBI director inject his agents, who have prided themselves on professional political neutrality, into a bitterly contested campaign having been warned it might affect the outcome? Why did he reject the law’s just commands of silence in favor of putting his thumb on political scales?

I don’t know the answers to those questions. But the American public, and Hillary Clinton, is entitled to them.

Copyright 2017 Creators.com.

 
• Category: Ideology • Tags: Donald Trump, FBI, Hillary Clinton 

What if our belief in self-government is a belief in a myth? What if the election of one political party over the other to control Congress changes only appearances? What if taxes stay high and regulations stay pervasive and the government stays oppressive and presidents fight wars no matter what the politicians promise and no matter who wins elections? What if the true goal of those whom we elect to Congress is not to be our agents of self-government or even to preserve our personal liberties but to remain in power by getting re-elected?

What if they use government to aid their own re-elections by bribing us with our own money — the rich with bailouts, the middle class with tax breaks and the poor with transfer payments?

What if Congress has written laws that are too complex for its own members to read and understand? What if the language of most federal laws is intentionally arcane so that ordinary voters cannot understand it? What if that language is actually written by faceless bureaucrats and not by accountable members of Congress? What if members of Congress in fact rarely read any legislation before voting on it? What if some legislation refers to secrets and secret procedures that only a few members of Congress are permitted to see and utilize?

What if when the select few members of Congress who are permitted to see those secrets do see them, those members are themselves sworn to secrecy? What if that means that our elected representatives — our supposed agents of self-government in the government — do not fully know what the government is doing and that even if they do, they can’t legally tell us?

What if our representatives in Congress don’t really represent us? What if they really represent a political party? What if each political party is controlled by a small leadership group that punishes members who defy it? What if Congress has written laws and rules that permit its leaders to punish members’ defiance? What if another way to characterize defiance of political party leadership is political courage?

What if the laws that Congress has written about the CIA have delegated congressional power to a small secret committee of members from both houses of Congress and both political parties? What if that committee can authorize secret wars in foreign lands conducted not by the military but by the CIA? What if the reason these folks authorize the CIA and not the military to conduct secret wars is the existence of federal laws that require reporting to and a vote of the entire Congress for the military to be used but require only the small secret committee to approve for the CIA to be used?

Because wars cost money and often cost lives, what if the effect of the decisions of the small secret committee is that the committee is basically a Congress within Congress? What if the Constitution says that only Congress can spend tax dollars and declare wars but Congress has let the Congress within Congress do this? What if the voters will never know what the Congress within Congress has authorized? What if the very existence of the Congress within Congress mocks, defies and betrays the concept of American self-government?

What if the data seen and discussed and the decisions made in secret by the Congress within Congress are generated by the CIA and other intelligence agencies? What if these intelligence agencies selectively reveal and selectively conceal data to manipulate the decisions of the Congress within Congress? What if those manipulations often result in bloodshed about which the American people often never learn? What if the bases for the decisions of the Congress within Congress are kept from the other members of Congress, from the media and from the voters?

What if the folks from both political parties who set up the Congress within Congress care more about wielding power than they do about preserving self-government? What if those who pull the levers of power in the intelligence community are so far removed from the voters that they don’t know and don’t care what the voters think? What if they know that the voters would react forcefully and decisively if the voters knew what the members of the Congress within Congress know but they still won’t tell us?

What if all this diversion of power from the elected Congress to the Congress within Congress and all this reliance on secret data has resulted in the most pervasive surveillance by any government of any people at any time in world history? What if the federal government’s domestic surveillance today captures and retains digital copies of every telephone call and every computer keystroke of every person in America and has done so since 2005? What if members of Congress who are not in the Congress within Congress do not know this?

What if the Congress within Congress has authorized American spies to spy without personal suspicion or judicial warrant on the military, the courts, the police and every person in America, including the remaining members of Congress, much of the remaining intelligence community itself and even the White House?

What if the selective use of the data acquired from mass surveillance can be used to manipulate anyone by those who have access to the data? What if those who have access to the data have used it to manipulate the president of the United States? What if all this constitutes a grave but largely unseen threat to our liberties, not the least of which is the right to self-government?

What if we don’t really govern ourselves? What do we do about it?

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

 
• Category: Ideology • Tags: Donald Trump 

The issue of federal government surveillance of Americans has largely occupied Washington politicians and the media since President Donald Trump first accused the administration of his predecessor of spying on him while he and his colleagues worked at Trump Tower in New York City during the presidential election campaign and during the presidential transition.

Trump’s allegations were initially dismissed as a diversionary tactic to get the attention of the media and the interest of the public off allegations made against the Trump campaign that it conspired with agents of Russian intelligence to facilitate Russian interference with the presidential election. Even some very smart colleagues of mine dismissed Trump’s allegations, arguing that no one in Washington found them believable.

Then the director of the FBI, James Comey, and the director of the National Security Agency, America’s 60,000-person-strong domestic spying apparatus, Adm. Mike Rogers, testified under oath that they knew of no surveillance of candidate or President-elect Trump at Trump Tower. When I heard these denials, I thought them to be odd at best and erroneous at worst because I was privy to credible chatter in the intelligence community that Trump’s allegations were correct, and I knew that the FBI had revealed it was examining the activities of the Trump campaign to look for Russian involvement and that such an examination would surely find the surveillance of Trump that the intelligence community was chatting about.

Then the chairman of the House Intelligence Committee, Rep. Devin Nunes, R-Calif., revealed that whistleblowers from the intelligence community had approached him with evidence supportive of Trump’s claims. He viewed this evidence and revealed that it showed surveillance of candidate and President-elect Trump, but it had nothing to do with Russia. Then Nunes’ Democratic counterpart on the same committee, Rep. Adam Schiff, D-Calif., who had complained loud and long that he had not seen the documents, viewed the same documents and afterward remained essentially mute.

Before all this happened, unnamed sources released a portion of transcripts of telephone conversations between the Russian ambassador to the United States and retired Lt. Gen. Mike Flynn, then Trump’s national security adviser in the White House. The conversations had taken place before Trump was inaugurated. Though only excerpts were revealed — excerpts intended to embarrass Flynn and taunt Trump — they arguably showed Flynn counseling the ambassador to expect different treatment of American sanctions on Russia from the Trump administration than they had received from the Obama administration. However, that was an expectation that any rational person would already have had. This revelation and its aftermath did prove embarrassing to Flynn and to Trump, and Flynn resigned.

How did anyone obtain transcripts of conversations involving Trump campaign or transition officials? Here is the back story.

The American public has permitted the most massive and thorough domestic surveillance apparatus in history to come about right under our collective and formerly freedom-loving nose. Beginning in 1978 and continuing up to the present, Congress has passed statutes that purport to confine domestic spying to foreign people communicating with anyone in America. Yet that confinement is a myth — a myth accepted even by the Congresses that have authorized and reauthorized it.
In theory, spying in America is done pursuant to the Foreign Intelligence Surveillance Act and subsequent statutes that provide for the intervention of judges who issue warrants. In practice, the warrants are general warrants. They are not based on suspicion. They do not identify the person whose communications are to be intercepted. They permit the NSA to search where it wishes — for example, in certain ZIP codes, area codes and service provider customer lists — and retain whatever it finds.

On top of this subterfuge is the below-the-radar-screen behavior of the NSA, which looks to a Reagan-era executive order to justify its capture in real time of every telephone conversation and every computer keystroke of everyone in the U.S. since 2005.

That massive amount of raw data is stored digitally in NSA facilities in Maryland and in Utah, and it is available for examination by select people. One of the people who have access to it is the president’s national security adviser. My colleagues at Fox News and at other media outlets have reported that Susan Rice, President Obama’s final national security adviser, sought and obtained transcripts of conversations of people at Trump Tower, ostensibly looking for a connection to Russia. Rice has admitted this.

Yet in that process, someone revealed the name of an American whose communications had been examined — known as unmasking. Unmasking is lawful in private only if necessary to comprehend a national security-related and lawfully intercepted communication. It is never lawful to leak publicly.

If unmasking is done for any non-national security purpose — such as politics, curiosity, embarrassment or revenge — or if it is from a surveilled conversation that was not national security-related, the unmasking is criminal. The use of intelligence data for political purposes is a felony. Its unlawful use is espionage because the identity of Americans surveilled is top-secret — the highest level of classification. Someone unmasked Lt. Gen. Flynn and most likely President Trump.
The wrongful exposure of top-secret material is the same crime committed by Hillary Clinton when she placed top-secret emails in non-secure venues. Yet if the allegations against Rice are true, her behavior was arguably worse. Clinton acted with gross negligence. Rice’s alleged behavior may have been intentional.

Michael Doran, who worked in national security in the George W. Bush White House, has argued that “somebody blew a hole in the wall between national security secrets and partisan politics.” Yet this is far worse than a hole in the wall; it is a hole in the Constitution. Mass spying without suspicion and the select revelation of its fruits for political purposes is far worse than anything the government of King George III did to the colonists, and they fought a war to secede from his country.

How much longer will Americans permit the government to pull the wool over our eyes? Whatever happened to the constitutional right to privacy? Does the Constitution — which requires a showing of some evidence of wrongdoing to a judge before the government may intercept any communications — still mean what it says?

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

 

The political fiasco that unfolded last week as President Donald Trump and the Republican House leadership failed to pass legislation repealing the Affordable Care Act, commonly called Obamacare, is attributable as much to the failure of politics as it is to the failure of politicians to understand the constitutional role of the federal government.

Republicans could not muster a majority in the House, which they control, because a determined small group of them want to remove the federal government from the regulation of health care and believe that the replacement for Obamacare that House leaders have offered would keep too much of it in place. The president and his allies have argued that their bill would invalidate enough of Obamacare to return free choices to health care and to fulfill their campaign promises.

Neither side has prevailed.

Here is the back story.

When Congress passed Obamacare in 2010, it did so without a single Republican vote. The premise underlying the highly partisan 2,700-page legislation is that health care is a right belonging to everyone in America and the federal government has a constitutional duty to provide it.

The political structure of Obamacare mandates that every person in America obtain health insurance, that every employer of more than 50 people in America pay for the health insurance of all employees who work more than 30 hours per week, that every policy of health insurance cover a large dimension of potential medical needs and that those earning under a certain annual income level receive health care at the expense of the rest of us. The failure to obtain and maintain health insurance triggers a tax burden — equivalent to the annual premium on a health insurance policy — for every year one goes without coverage.

The economic structure of Obamacare requires 100 percent participation of everyone in America so as to ensure a large pool of insurance premiums — whether paid by individuals, employers or taxpayers — from which to pay health care providers. Still, premiums don’t cover costs, which is why President Trump says Obamacare is collapsing.

The regulatory structure of Obamacare orders every primary care physician to keep all medical records on personal computers, to which the Department of Health and Human Services has access. Thus, the long-revered and uniquely American value of the patient-physician privilege — the certain knowledge that your doctor will not reveal what you tell her or him — has been obliterated. The statute also has given the secretary of HHS unreviewable powers to regulate intricacies of the delivery of health care in America.

Along with this expensive and bitter medicine — which has caused hundreds of thousands of folks to downgrade to part-time work, reduced the wages of millions more and driven thousands of health care providers into retirement or new occupations — Obamacare also has provided some sugar. The statute orders insurance carriers to cover pre-existing conditions, children on their parents’ policies up to the age of 26 and expensive elective procedures, such as abortions and sex reassignment.

After the Republicans acquired full control of Congress in 2015, they delivered numerous repeals of Obamacare to President Barack Obama, knowing that he’d veto them, which he did. These were complete repeals — essentially removing the federal government from the regulation of health insurance and the delivery of health care.

Now that Republicans control Congress and the White House, you’d expect that they would do the same, as they have promised. No such thing has happened. The legislation that Republican House leaders offered last week retained the basic premise of Obamacare — that health care is a right and the federal government has a duty to provide it — and just nibbled a bit at the edges.

Under the House proposal, the obligation to have health insurance would remain, but you couldn’t expect it from your employer; you might have to pay for it yourself. And the penalty for the failure to have coverage would not be a tax from the IRS; it would be a $3,000 annual surcharge from your insurance carrier when you sign up. You could buy insurance tailored to your needs, but nearly all remaining federal regulations would stay in place — including a new Orwellian one that would permit your employer to require you to undergo genetic screening.

This Obamacare lite has been resisted by about 30 House Republicans who reject the premise that health care is a right. Without their votes, it would not have passed last week, so the House leadership declined to hold a vote.
Is health care a right in America?

In a word, no. Rights are either natural immunities — existing in areas of human behavior that, because of our nature, must be free from government regulation, such as life, liberty and the pursuit of happiness, as well as speech, the press, religion, travel, self-defense and what remains of privacy — or legal claims that we qualify or bargain for, such as the right to vote, which the Constitution presumes, and the right to use your property to the exclusion of all others and the right to purchase a good that you can afford.

But the federal government cannot create a right that the Constitution does not authorize. It can’t constitutionally transfer wealth from taxpayers or employers to others and then claim that the others have a right to the continued receipt of the transfers. The Supreme Court has ruled that even Social Security, Medicare and Medicaid are government largesse that Congress could terminate because no one has a right to them.

Of course, the federal government has been creating expectations that it calls rights for centuries. To stay in office, members of Congress bribe the rich with bailouts, the middle class with tax cuts and the poor with made-up rights to all sorts of things.

Yet under the Constitution, health care is not a right; it is a good — like an education or a gym membership. You work hard, you decide what goods to purchase. If government gives you the good, that does not magically transform it into a right.

Bravo to the courageous House Republicans who recognize this.

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

 
• Category: Ideology • Tags: Constitutional Theory, Obamacare, Republicans 

I have spent this past week watching the Senate Judiciary Committee interrogating U.S. Circuit Judge Neil Gorsuch. Judge Gorsuch is President Donald Trump’s nominee to fill the vacancy on the U.S. Supreme Court. The vacancy was created by the death of Justice Antonin Scalia more than 13 months ago. The Supreme Court is currently generally divided between four liberals and four conservatives. As a justice, Gorsuch would probably break many ideological ties.

During the hearings, Republican senators are doing their best to associate Judge Gorsuch with the popular-in-death Justice Scalia, and Democratic senators are doing their best to try to pin down Gorsuch by making him commit publicly to positions on hot-button issues, such as abortion, gun rights and the use of unrestricted money in political campaigns. Gorsuch has accepted the Republican sobriquets and declined to answer Democratic inquiries with specificity. So, are the hearings of any real value?

Here is the back story.

Prior to the partisan efforts to block the nominations of the late Judge Robert Bork and now-Justice Clarence Thomas to the Supreme Court, the Senate’s “advice and consent” role was mainly limited to a cursory examination of a nominee’s qualifications for office. The Bork hearings succeeded in derailing his nomination by portraying his philosophical views as outside the mainstream of legal thought. The Thomas hearings, which failed to block the nomination, centered on the nominee’s alleged personal shortcomings, which were directly challenged and mainly refuted.

My point here is that since these two hearings in 1987 and 1991, the Senate Judiciary Committee has felt unleashed to probe and prod into any area it sees fit, and the nominees have become unleashed to answer only the questions that they think will advance their nominations.

In the Gorsuch hearings this week, the nominee has argued that should he commit to certain positions on issues, it would not be fair to litigants who might come before him as a circuit judge if his nomination were not to be confirmed or before him in the Supreme Court if it were, as those litigants would have a proper belief that he prejudged their cases. “It would be grossly improper,” he argued, for him to commit in advance to how he’d vote on any issue. He’s correct.

So, what questions could both Democrats and Republicans put to him and what questions could he answer that would inform their judgment and illuminate his thinking without committing his judgment?

It should come as no surprise that Gorsuch is a traditionalist. The folks who offered his candidacy to the president — and I played a small role in that process — spent weeks examining all his public writings, as well as his speeches and lectures, so as to enable them to conclude safely that his 10-year track record as an appellate judge could fairly be a barometer of his likely behavior as a Supreme Court justice. In the process of that examination, the researchers found many similarities in ideas, tone, attitudes and word choice to Justice Scalia.

The essence of that similarity is an idea called originalism. Though there are many variants of originalism, it generally advances the idea that the meaning of the Constitution was fixed at the time it was ratified and therefore its words mean the same today as they did to those who ratified it; and the same is the case for its 27 amendments.

This fidelity to original public understanding drives judges to the text of the Constitution and the laws — not the principles that underlie the text, not the politics that produced the text, not the social ills the text seeks to cure but the words chosen by the drafters of the Constitution or of a statute, as the case may be. This is not just an obscure academic argument. Originalism, if followed religiously, leaves judges and justices to the narrow role of interpreting the plain text of the Constitution or laws as they were understood when enacted, irrespective of the consequences.

Originalists believe that social progress and new legal structures should come about by the acts of Congress and the president, who are elected for that purpose, rather than by the rulings of unelected, unaccountable judges. If every judge were an originalist, the effect would be that much wonderful social progress in human affairs that could come about through the decisions of courageous jurists — such as public school desegregation and personal privacy and mobility in years past — might not come about.

Yet originalists argue that federal jurists are the least equipped to advance social progress; they are often old, are never elected and have no accountability to the public.

Thus, it is on this philosophical fulcrum, more than on any other, that senators should examine Judge Gorsuch’s thinking. In this context, they can also ask him whether our rights come from the government or from our humanity. They can ask how he views fundamental liberties. Can the court pick and choose which rights are highly protected from government interference and thus are difficult for the government to regulate and which are not? If privacy and travel — neither of which is mentioned by name in the Constitution — are fundamental liberties, why isn’t freedom of contract, which is mentioned by name?

On these issues alone — originalism and fundamental liberties — the senators could find from his answers a blueprint to his thinking, and Judge Gorsuch could reply in meaningful ways without prejudging any cases.

But the Senate is a political body, and its members are politicians. One of the reasons Justice Scalia gave for rejecting as an interpretive tool the statements made by members of Congress when they passed any legislation under scrutiny is the truism that politicians have only one goal in their work, no matter what they are saying — to get re-elected. The senators examining Judge Gorsuch are probably more concerned with that than with doing the right thing for the court. I hope that in this respect, I am wrong, as I have been before.

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

 
• Category: Ideology • Tags: Constitutional Theory, Supreme Court 

The question of whether former President Barack Obama actually spied on President Donald Trump during the 2016 presidential campaign and transition has been tantalizing Washington since President Trump first made the allegation nearly two weeks ago. Since then, three investigations have been launched — one by the FBI, one by the House of Representatives and one by the Senate. Are the investigators chasing a phantom, or did this actually happen?
Here is the back story.

Obama would not have needed a warrant to authorize surveillance on Trump. Obama was the president and as such enjoyed authority under the Foreign Intelligence Surveillance Act to order surveillance on any person in America, without suspicion, probable cause or a warrant.

FISA contemplates that the surveillance it authorizes will be for national security purposes, but this is an amorphous phrase and an ambiguous standard that has been the favorite excuse of most modern presidents for extraconstitutional behavior. In the early 1970s, President Richard Nixon used national security as a pretext to deploying the FBI and CIA to spy on students and even to break in to the office of the psychiatrist of Daniel Ellsberg, one of his tormentors.

FISA was enacted in the late 1970s to force the federal government to focus its surveillance activities — its domestic national security-based spying — on only those people who were more likely than not agents of a foreign government. Because FISA authorizes judges on the Foreign Intelligence Surveillance Court to make rules and establish procedures for surveillance — essentially lawmaking — in secret, the public and the media have been largely kept in the dark about the nature and extent of the statute and the legal and moral rationale for the federal government’s spying on everyone in the U.S.

The mass spying that these judges have ruled FISA authorizes is directly counter to the wording, meaning and purpose of FISA itself, which was enacted to prevent just what it has in fact now unleashed.
We now know indisputably that this secret FISA court — whose judges cannot keep records of their own work and have their pockets and briefcases checked by guards as they enter and leave the courthouse — has permitted all spying on everyone all the time.

The FISA court only hears lawyers for the government, and they have convinced it that it is more efficient to capture the digital versions of everyone’s phone calls, texts, emails and other digital traffic than it is to force the government — as the Constitution requires — to focus on only those who there is reason to believe are more likely than not engaging in unlawful acts.
When FISA was written, telephone surveillance was a matter of wiretapping — installing a wire onto the target’s telephone line, either inside or outside the home or business, and listening to or recording in real time the conversations that were audible on the tapped line.

Today the National Security Agency has 24/7 access to the mainframe computers of all telecom providers and all computer service providers and to all digital traffic carried by fiber optics in the U.S. The NSA has had this access pursuant to FISA court orders issued in 2005 and renewed every 90 days. The FISA court has based its rulings on its own essentially secret convoluted logic, never subjected to public scrutiny. That has resulted in the universal surveillance state in which we in America now live. The NSA has never denied this.

Thus, in 2016, when Trump says the surveillance of him took place, Obama needed only to ask the NSA for a transcript of Trump’s telephone conversations to be prepared from the digital versions that the NSA already possessed. Because the NSA has the digital version of every telephone call made to, from and within the U.S. since 2005, if President Obama last year wanted transcripts of Trump’s calls made at any time, the NSA would have been duty-bound to provide them, just as it would be required to provide transcripts of Obama’s calls today if President Trump wanted them.

But if Obama did order the NSA to prepare transcripts of Trump’s conversations last fall under the pretext of national security — to find out whether Trump was communicating with the Russians would have been a good excuse — there would exist somewhere a record of such an order. For that reason, if Obama did this, he no doubt used a source on which he’d leave no fingerprints.

Enter James Bond.

Sources have told Fox News that the British foreign surveillance service, the Government Communications Headquarters, known as GCHQ, most likely provided Obama with transcripts of Trump’s calls. The NSA has given GCHQ full 24/7 access to its computers, so GCHQ — a foreign intelligence agency that, like the NSA, operates outside our constitutional norms — has the digital versions of all electronic communications made in America in 2016, including Trump’s. So by bypassing all American intelligence services, Obama would have had access to what he wanted with no Obama administration fingerprints.

Thus, when senior American intelligence officials denied that their agencies knew about this, they were probably being truthful. Adding to this ominous scenario is the fact that three days after Trump’s inauguration, the head of GCHQ, Robert Hannigan, abruptly resigned, stating that he wished to spend more time with his family.

I hope the investigations of Trump’s allegation discover and reveal the truth — whatever it is. But the lesson here is terribly serious. We face the gravest threat to personal liberty since the Alien and Sedition Acts of 1798 proscribed criticism of the government. We have an unelected, unnamed, unaccountable elite group in the intelligence community manipulating the president at will and possessing intimate, detailed knowledge about all of us that it can reveal. We have statutes that have given the president unconstitutional powers that have apparently been used. And we have judges on secret courts facilitating all this as if the Constitution didn’t exist.

For how much longer will we have freedom?

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

 
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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The “war hero” candidate buried information about POWs left behind in Vietnam.