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Last week, The New York Times revealed that in June 2016, Donald Trump Jr., the president’s eldest son; Jared Kushner, the president’s son-in-law and chief confidant; Paul Manafort, Trump’s then-campaign chief executive; and others met secretly at Trump Tower with a former Russian prosecutor and a former Soviet counterintelligence agent to discuss what negative (most likely computer-generated) information the Russians might have to offer them about Hillary Clinton.

Within days of the meeting, the elder Trump announced publicly that he would soon release a litany of reasons why Clinton was unqualified to be president and that they would include new allegations about Clinton and Russia. The new allegations did not come.

When the Times reporters asked the younger Trump about the meeting last week, he initially claimed it concerned Americans adopting Russian babies. Then he claimed it was about Russian concerns over American economic sanctions on select Russians. When the reporters told him they had his emails, which tell a different story, he released his emails to the public so as to beat the Times to the punch.

Then, media hell broke loose about whether the Trump campaign was working with the Russians to acquire information about Clinton, and, particularly, whether any Trump campaign officials engaged in criminal behavior.
Here is the backstory:

No seasoned campaign official would have met with foreign people, particularly former government officials, in order to discuss any materials they might have about an opponent, because the acquisition of materials from a foreign person or government is illegal under federal law. The inquiry that Donald Jr. received from a friend who served as an intermediary between the Trump campaign and the Russians should have been run past the campaign’s legal counsel, who no doubt would have told his colleagues to stay clear of such a proposed meeting, and then reported the overture to the FBI.

Donald Jr. claims that the meeting lasted 20 to 30 minutes and produced nothing of value or of interest to the campaign. Yet the emails paint a picture of him as hungry for dirt on Hillary (“if it’s what you say I love it,” he wrote), and ready, willing and able to meet with the Russians to see what they had.

Was Donald Jr.’s meeting a criminal act?

Standing alone, the meeting itself was probably not a criminal act. But the varying versions of it that have been given by the president and his son (Were you lying then, or are you lying now?); and the failure of Kushner, who has a national security clearance, to advise the FBI of it in his application for the security clearance (Did you not know they were Russians?); and the presence of an ex-Soviet counterintelligence agent (Did you not know he had been a spy?) at the meeting all give rise to the level of articulable suspicion, which is the constitutional minimum standard to commence a criminal investigation.

In this case — where the Department of Justice has named a special counsel to examine the role of Russian agents in the 2016 presidential election — the articulable suspicion standard will surely trigger the special counsel’s involvement. Stated differently, while the Trump Tower meeting alone was probably not a criminal act because speech unaccompanied by behavior or agreement is absolutely protected by the First Amendment, its existence alone is enough to cause the special counsel to commence a criminal investigation of the participants to determine whether a crime was committed then and there, or elsewhere.

I have been listening for more than a week to many of my respected colleagues asking, “Where is the crime?” and I understand their inquiry. Yet the crimes for which the special counsel is looking rarely fit into a neat package. Unlike a bank robber who uses a gun to get cash from a bank teller — a crime that has a beginning and an end — white-collar crime often involves nuance and mental state and the behavior of third parties sometimes unknown to the original participants.

Thus, an FBI agent or Department of Justice lawyer might compare the Trump Tower meeting to a thief displaying stolen jewelry to a group of potential purchasers, who initially rejected the jewelry. And thus, the feds might want to know whether others decided to view the jewelry, or whether there was a meeting of some of the minds at Trump Tower but perhaps Donald Jr. was excluded from such an assembly. As well, they might inquire as to whether this was an attempt to use foreign people to gather data about Clinton.

We know it is a felony for a campaign official to accept something of value from a foreign national or a foreign government; and we know that because campaigns legally pay folks to do opposition research, that research is a thing of value. It is a felony for a campaign official to conspire to acquire a thing of value from a foreign national, even if the thing of value never arrives. It is also a felony for a campaign official to take a material step in furtherance of acquiring a thing of value from a foreign national, even if the thing of value never comes. And it is a felony for anyone without a search warrant to facilitate computer hacking for any purpose.

All this brings us back to Donald Jr.’s meeting. Was it a crime? We will need to await the outcome of the FBI’s investigation and the DOJ’s presentations to a grand jury. But we do know that the harm to the Trump presidency, much of it caused by those close to the president and the president himself, continues its dark march. Where will it end?

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

 
• Category: Ideology • Tags: Donald Trump, Russia 

Earlier this week, after nearly uniform rejections by judges all across the country, President Donald Trump achieved a court victory in the persistent challenges to his most recent executive order restricting the immigration of people into the United States from six predominately Muslim countries. Lower federal courts had consistently ruled that the president’s behavior was animated by an anti-Muslim bias — a bias he forcefully articulated during the presidential election campaign — concluding that what appeared to be, on its face, a travel ban based rationally on national security needs was in reality a “Muslim ban” based on religious fear, prejudice or hatred.

The Supreme Court unanimously saw it differently. Here is the back story.

I have argued for months that both the first travel ban executive order, signed Jan. 27, and the second one, signed March 6, were lawful and constitutional because the courts have ruled that the Constitution gives the president exclusively the final say on foreign policy and because they have ruled that immigration is one of the tools he can use to effectuate that policy. Moreover, Congress has expressly authorized the president to suspend immigration from stated countries for finite periods of time to enhance national security.

In order to do this and pass judicial muster, the president’s lawyers in the Department of Justice need only show that the president has a rational basis for his order. Trump argued that his rational basis was a determination by the State Department under former President Barack Obama, reinforced by his own State Department, that immigrants who would cause harm once here in the U.S. are more likely than not to come from the six designated countries in the second order — Iran, Libya, Somalia, Sudan, Syria and Yemen.

The traditional Judeo-Christian view of governmental decisions that limit the liberties or opportunities of many because of the anticipated behavior of a few is that those decisions are unjust and need not be obeyed. Indeed, in America — in our post-Civil War and post-civil rights eras — we have come to the political and legal consensus that individual worthiness is personal and is not a characteristic of a group, and we have condemned other countries’ governments for punishing the many because of the fear or behavior of a few. Yet the issue before the high court regarding the president’s executive order is not its wisdom or morality or justness. The issue is its lawfulness and its constitutionality.

If an executive order is based on a denial of a fundamental liberty (other than travel) — speech or religion, for example — then the DOJ has a much higher bar to meet, called strict scrutiny. Those of us who monitor these things have fairly well concluded that it cannot meet that high bar. Stated differently, if the high court concludes that the travel ban is really a Muslim ban, the court will invalidate the ban — which every court to review it before the Supreme Court did.

In the first challenge to the president’s first order, a federal district court in Seattle ruled that it was based on religion, and the 9th U.S. Circuit Court of Appeals upheld that ruling. Rather than appeal that to the Supreme Court, the president signed the second executive order — which imposed the same restrictions as the first, but in more thoughtful, cautious and lawyerlike language.

The second executive order was challenged in federal district courts in Honolulu and Annapolis, both of which ruled that it, too, was based on religion, and therefore they invalidated it. The 4th U.S. Circuit Court of Appeals in Richmond upheld the Annapolis decision, and the 9th Circuit in San Francisco upheld the Honolulu decision. The DOJ appealed both circuit court rulings to the Supreme Court, and the Supreme Court intervened.

Bear in mind that there has been no trial in any of these cases. The rulings appealed from were all preliminary in nature, based not on cross-examined evidence but on the judges’ feel for the cases and their understanding of the law. The same is the case with the Supreme Court ruling. It did not say what the law is and what burdens the government must meet for the court to uphold the second executive order. But it did invalidate all injunctions imposed by the lower courts against the enforcement of the second order.

In so doing, it carved out exceptions to the executive order. These judicially created exceptions provide that immigrants from the six countries are exempt from the travel ban if they can show that they have a “relationship” with a person or entity in the U.S. Though the word “relationship” is ambiguous, it can range from a job offer to a university admissions offer to a business opportunity to an anxious family member awaiting the immigrant in the United States.

This judge-made exception to the president’s foreign policy was probably a compromise crafted by Chief Justice John Roberts intended to bring the liberal and conservative wings of the court to agreement on the limited issue of whether the second executive order can be in place and enforced by the government during the time that the court needs to examine it.

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented on the exemptions. They argued that the court has no business or right interfering with the president’s foreign policy and that the “relationship” standard is so vague that it will spawn thousands of litigations. Nevertheless, the Supreme Court will hear oral argument on the power of the president to use immigration travel bans as an instrument of foreign policy in October and will probably rule before Christmas.

And then those who want to challenge the president in court will be able to contest the law as the Supreme Court will articulate it. And this troublesome business of banning people from coming here because of their place of origin will be with us for a long time.

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

 
• Category: Ideology • Tags: Donald Trump, Immigration, Judicial System 

I was surprised last weekend when one of President Donald Trump’s lawyers told my colleague Chris Wallace twice on “Fox News Sunday” that the president is being investigated by the FBI and then told him twice that he is not. This same lawyer repeated the “not being investigated” argument on a half-dozen other Sunday shows but did not repeat the “is being investigated” remark.

This produced substantial consternation in the news media and at the White House, since the president himself had tweeted over the weekend that he is being investigated for firing FBI Director James Comey by the same person — Deputy Attorney General Rod Rosenstein — who recommended Comey’s firing and that the investigation is a “witch hunt.”

So, who is correct, the president or his lawyer? Is the president under criminal investigation by the FBI? If he is being investigated as he claims, is the investigation a witch hunt? Here is the back story.

When Donald Trump began running for the Republican nomination for president in June 2015 and made novel arguments indicating that his view was that Europe should essentially pay for its own military defense, this triggered concern in European capitals, and it resulted in the commencement of now well-documented British surveillance of Trump and his principal adviser on national security matters, retired Lt. Gen. Michael Flynn. The foreign surveillance was eventually passed on to American spies, who acceded to demands from the West Wing of the Obama White House and handed over transcripts of conversations and names of participants.

This went on throughout the presidential campaign and into the transition period after Trump had been elected. President Barack Obama’s national security adviser, Susan Rice, recently confirmed that she ordered transcripts of surveilled conversations and names of participants — this is called “unmasking” in intelligence community lingo — and James Clapper, the Obama administration’s director of national intelligence, recently acknowledged under oath the existence of the foreign and domestic surveillance of Trump in 2015 and 2016, as well as the unmasking.

One of the unmasked conversations handed over to Rice was between Flynn and the Russian ambassador to the U.S., Sergey Kislyak. Portions of that conversation were leaked to The Washington Post, and that generated interest in the relationship, if any, of the Trump campaign and transition team to the Russian government. This provoked a preliminary FBI investigation into Flynn. Flynn apparently was interviewed by the FBI while ignorant of the FBI’s possession of transcripts of his conversations with Kislyak. If Flynn lied in that interview as has been reported and speculated in the press, he committed a felony. When Trump learned Flynn had lied to others, he fired Flynn.

Flynn’s firing ratcheted up the investigation of him, as well as the investigation of whether anyone from the Trump campaign had assisted Russian intelligence agents in hacking into computers in America in order to affect the outcome of the election. When Trump asked then-FBI Director Comey whether he, Donald J. Trump, was being investigated by the FBI, Comey thrice said no. That was, no doubt, true at the time. The Trump campaign and the Trump transition team were being investigated, but not Trump personally.

Then the president, according to Comey, asked Comey to drop the investigation into whether Flynn had lied to FBI agents and others. Then, according to Comey, the president suggested to him that he could keep his job as FBI director if he dropped the Flynn investigation. Then the president fired Comey.

After Comey released a portion of a memo containing his recollections of his conversations with Trump, Deputy Attorney General Rosenstein appointed former FBI Director Robert Mueller as independent prosecutor to investigate and charge, if appropriate, anyone criminally implicated in the Flynn investigation, the investigation of Russian attempts to influence the 2016 election, the investigation of whether any assistance was provided to the Russians by any Americans, and all related matters.

Because Comey presented a credible case for the possibility that the president interfered with a federal criminal investigation, Mueller no doubt is investigating that as one of the related matters. In that respect, President Trump is under investigation by the FBI, which seeks to determine whether he attempted to influence a federal criminal investigation for a corrupt purpose.

Yet as a sitting president, Trump cannot be indicted for any criminal behavior committed while in office. Hence he cannot be a “target” of an FBI investigation. I use the word “target” in quotation marks because it has a technical meaning — namely, that the Department of Justice plans to seek an indictment. So though it is true that the president is being investigated by the FBI, it is also true that he is not a target of that investigation.
Of what value is a criminal investigation of a person if that person cannot be charged criminally? Can’t the president fire an FBI director without fear of a criminal investigation of his purposes? Can’t he order the cessation of a criminal investigation without fearing that the FBI will investigate the reasons for his order?

Sometimes criminal investigations exonerate a person, and the FBI, without fanfare, will just drop it. In the case of the president, any evidence of guilt will go to the House Judiciary Committee, not a grand jury, as the constitutional remedy for presidential criminal behavior is impeachment, not indictment. Of course, the president can fire a director of the FBI for any non-corrupt reason, but if he does so after a rejected quid pro quo as Comey has publicly claimed that Trump did, that can trigger the woes Trump now endures.

We live in perilous times — times that demand fidelity to first principles. The core of those principles is the rule of law: No one is beneath laws’ protections, and no one is above their requirements. No one.

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

 
• Category: Ideology • Tags: Donald Trump, James Comey 

Last week, when former FBI Director James Comey gave his long-awaited public testimony about his apparently rough-and-tumble relationship with President Donald Trump, he painted a bleak picture. The essence of Comey’s testimony was that the president asked him to drop an investigation of retired Lt. Gen. Michael Flynn — Trump’s former national security adviser — and then asked him to do so in return for keeping his job as FBI director and then fired him for not obeying his order.

On the other hand, Comey confirmed that the president personally, as of the time of Comey’s firing, was not the target of any FBI criminal investigation. It was not clear from the Comey testimony whether this exoneration was referring to salacious allegations made by a former British intelligence agent of highly inappropriate and fiercely denied personal behavior a few years ago in a Moscow hotel room or whether the exoneration was with respect to widely reported allegations that the 2016 Trump campaign may have helped Russian intelligence agents in their efforts to manipulate the outcome of the presidential election.

Nevertheless, there is no doubt the president is now a target of a federal investigation with respect to his dealings with the then-FBI director. So, how could the tables have turned so quickly on the president, and who turned them? Here is the back story.

Prior to the Watergate era of the mid-1970s, the generally accepted theory of management of the executive branch of government was known as the unitary executive. This theory informs that the president is the chief executive officer of the federal government and is the sole head of the executive branch. He is also the only person in the executive branch who is accountable to the voters, as he, and he alone (along with the vice president, who is largely a figurehead), has been elected by the voters.

As such, this unitary executive theory informs, everyone in the executive branch of the federal government works at the pleasure of the president. Were this not the case, then vast areas of governance could occur and vast governmental resources could be spent by people who are unaccountable to the voters. And when the government is unaccountable to the voters, it lacks their consent. The consent of the governed is the linchpin and bedrock of popular government in America.

There are, of course, today vast areas of government that are not responsive to the people and that lack the consent of the governed. The administrative agencies that write, interpret and enforce their own regulations and the deep state — the secret parts of the financial, intelligence and law enforcement entities of the government that never change, operate below the radar screen and have budgets that never see the light of day — defy the notion that the consent of the governed is the sole legitimate basis for government in America.

Yet the FBI is not in the administrative state or the deep state. It is front and center as the premier law enforcement agency of the United States government. It is far from perfect, and its leaders are as fallible as the rest of us, but we have hired the folks who work there to enforce the federal laws that implicate our freedoms and our safety. And we have hired the president to exercise his discretion as to which laws shall be enforced and against whom.

Thus, under this theory, the president is constitutionally, legally, morally and ethically free to direct any person in the executive branch as to how he wants that person to perform his or her job. And the recipient of such direction is free to resign if the direction appears unlawful. That is at least the theory of the unitary executive.

After the Watergate era, Congress altered the public policy of the country to reflect the independence of the Department of Justice, including the FBI. It did so in reaction to Nixonian abuses. Thus, the post-Watergate theory of the DOJ’s role articulates that federal law enforcement is independent from the president.

The Comey testimony revealed serious efforts to reject the public policy of independence and return to the unitary executive. Comey revealed a DOJ under former Attorney General Loretta Lynch in lockstep with the Obama White House and determined to exonerate Hillary Clinton in the espionage investigation concerning her emails, no matter the evidence. He also revealed his own view that President Trump’s orders and quid pro quo offer with respect to Flynn were unlawful.
Where does this leave us today?

Today we have a White House under siege. The new DOJ criminal investigation that the president is no doubt the subject of will attempt to discover whether he corruptly attempted to interfere with the work of an independent FBI and whether he attempted to bribe its then-director. The White House is also the subject of five congressional investigations involving the Russians and the 2016 election, the firing of Director Comey, and the recusal of Attorney General Jeff Sessions from much of this. And the investigation of Clinton is back from the grave for a third time to determine whether she was exonerated because of a lack of evidence, a lack of will or an Obama political imperative.

These are perilous times for men and women of goodwill and intellectual honesty who are charged with enforcing our laws and running the government. The government should not be terrifying. But it must be fair and transparent. And it must always enjoy the consent of the governed. For without that consent, it is illegitimate.

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

 
• Category: Ideology • Tags: Donald Trump, FBI 

Last weekend, the FBI arrested an employee of a corporation in Augusta, Georgia, that had a contract with the National Security Agency and charged her with espionage. Espionage occurs when someone who has been entrusted to safeguard state secrets fails to do so. In this case, the government alleges that the person to whom state secrets had been entrusted is 25-year-old Reality Leigh Winner, who had a top-secret national security clearance.

The government claims that Winner downloaded and printed a top-secret NSA report, removed the printed version of the report from her employer’s premises, and then mailed it to The Intercept, a highly regarded international media outlet that exposes government wrongdoing.

The government says it learned of this when folks from The Intercept called the NSA and told agents what they had received and what they planned to publish. After hearing agents describe the potential harm to their work if the full report were to be released, The Intercept agreed to redact certain portions, though it published the bulk of the report.

The report is startling, as it reveals that the NSA discovered that Russian hackers in late October and early November 2016 planted cookies (attractive, uniquely tailored links) into the websites of 122 American city and county clerks responsible for counting ballots in the presidential election. This means that if any employee of those clerks’ offices clicked onto any cookie, the hackers had access to — and thus the ability to interfere with — the tabulation of votes. This NSA report is at sharp odds with the denials of Russian involvement in the 2016 presidential election made last year by President Barack Obama and made last week by Russian President Vladimir Putin, and it is profoundly more detailed and alarming than anything the federal government has thus far revealed.

Doesn’t the American public have the right to know what the Russians did in the election? Is it necessarily criminal to make such things public? Isn’t the NSA supposed to protect us from foreign hackers who are attempting to interfere with the core American electoral process — the election of the president — and not keep us in the dark if it fails to do so?

Here is the back story.

I have argued since 2013, when we first learned from the Edward Snowden revelations that the NSA has gathered too much data about too many innocent people since 2005, that it does so in violation of the Constitution and federal law and that it suffers from information overload — meaning it has more raw data than it has resources to examine in a timely and effective manner.

The result of all this is liberty lost — as innocents have their privacy invaded and, as we know, sometimes even revealed to the public for political purposes — and our safety compromised, since the NSA repeatedly discovers that it had all relevant communications of killers before the killings but does not connect the dots until too late, as in Boston, San Bernardino and Orlando; and the same can be said for our British partners in Manchester and London during the past two weeks.

The stated purpose of all this suspicionless bulk spying on all of us all the time is to keep us safe. Yet we know that the NSA has failed at that, and we know from a recent judicial condemnation of the NSA that it has failed to protect our liberties. Now we know that it has failed to protect our presidential election.

Is it a crime to reveal what the FBI says Winner revealed? In a word, yes. Yet I argue for understanding the full picture here. If she did as the FBI alleges, she committed a violation of federal law. However, it appears she did not do so for petty, political, financial or venal reasons; rather, she may have done so for the American people to know that the spies who have failed us would keep us ignorant and vulnerable.

Can The Intercept be prosecuted for revealing top-secret material to the public? In a word, no. The Supreme Court made clear in the Pentagon Papers case in 1971 that a media entity may freely publish matters that are material to the public interest, notwithstanding the source of the matters or the behavior of the source that delivered the matters to it. This is grounded in the essence of personal liberty in a free society. In matters of material interest to the public, the public’s right to know what the government is doing or has failed to do constitutionally trumps the government’s right to secrecy.

Where does all this leave us? Reality Winner may very well be a patriot who risked her career and freedom to warn the American public of what the government was afraid to acknowledge — that mass spying keeps us neither safe nor free. No doubt the government doesn’t see it that way. This case has embarrassed the government, and she will most likely be prosecuted. I hope the judge in her case lets her lawyers argue that because we live in perilous times, the people are entitled to know what the government does and fails to do in our names to address the peril so we can change the government when it fails.

The remedy for the revelation of truth should consist in the truth’s ability to flourish in the marketplace of ideas rather than in the punishment of the revealer. The core principle of democracy is that the people have consented to the government. When the government keeps vital secrets from us — particularly secrets that embarrass it, secrets that cause us to view it differently, secrets of failure — we end up with a government that we do not know or trust. And one that ultimately lacks our consent.

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

 
• Category: Foreign Policy • Tags: Government Surveillance, NSA 

“The makers of our Constitution … conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” — Justice Louis D. Brandeis, 1928

After the Watergate era had ended and Jimmy Carter was in the White House and the Senate’s Church Committee had attempted to grasp the full extent of lawless government surveillance in America during the LBJ and Nixon years, Congress passed the Foreign Intelligence Surveillance Act. FISA declared that it provided the sole source for federal surveillance in America for intelligence purposes.

FISA required that all domestic intelligence surveillance be authorized by a newly created court, the Foreign Intelligence Surveillance Court. Since 1978, FISC has met in secret. Its records are unavailable to the public unless it determines otherwise, and it hears only from Department of Justice lawyers and National Security Agency personnel. There are no lawyers or witnesses to challenge the DOJ or the NSA.

Notwithstanding this handy constitutional novelty, the NSA quickly grew impatient with its monitors and began crafting novel arguments that were met with no resistance. Those arguments did away with the kind of particularized probable cause about targets of surveillance that the Constitution requires in favor of warrants based on the probability that someone somewhere in a given group could provide intelligence data helpful to national security, and because the FISC bought these arguments, the entire group could be spied upon. The FISC unleashed the NSA to spy on tens of millions of Americans.

That was still not enough for the nation’s spies. So beginning in 2005, then-President George W. Bush permitted the NSA to interpret President Ronald Reagan’s executive order 12333 so as to allow all spying on everyone in the U.S., all the time. The NSA and Bush took the position that because the president is constitutionally the commander in chief of the military and because the NSA is in the military, both the president and the NSA are lawfully independent of FISA.

The NSA does not acknowledge any of this, but we know from the Edward Snowden revelations and from the testimony of a former high-ranking NSA official who devised many of the NSA programs that this is so.

The NSA’s use of FISC-issued warrants is only one of a half-dozen tools that the NSA uses, but it is the only tool that the NSA publicly acknowledges. FISC-issued warrants do not name a person as a suspect; they name a category. For example, it could be customers of Verizon, which includes 115 million people. It could be telephones and computers located at 721-725 Fifth Ave. in New York; that’s Trump Tower. It could be all electronic devices in the 10036 ZIP code; that’s midtown Manhattan.

When the NSA obtains a FISA warrant and captures a communication, the participants often mention a third person. The federal “minimization” statute requires the NSA to get a warrant before surveilling that third person. Last week, we learned that last month, the FISC rebuked the NSA for failing to minimize by continuing to surveil third parties to the sixth degree without warrants.

Here is an example of warrantless surveillance to the sixth degree. The NSA surveils A and B pursuant to a FISC-issued warrant; A and B discuss C; the NSA, without a warrant, surveils C talking to D; C mentions E, and D mentions F; the NSA surveils E and F without warrants, etc. This continues going out to six stops from the A-and-B conversation, even though this is prohibited by federal law. The final stop, which involves huge numbers of people, has been proved to have no connection whatsoever to the warrant issued for A and B, yet the NSA continues to spy there.

But it doesn’t stop there. The Bush interpretation of EO 12333 is still followed by the NSA. Its logic — “I am the commander in chief, and I’ll do what I need to do to keep us safe, and the NSA can do what I permit” — permits universal surveillance in flagrant violation of FISA and the Constitution. It was used to justify the surveillance of Donald Trump before he was inaugurated. It no doubt still is.

The availability of the information acquired by this massive spying is a serious threat to democracy. We know from the Susan Rice admissions that folks in the government can acquire intelligence-generated data — emails, text messages, recordings of telephone conversations — and use that data for political purposes. Just ask former Lt. Gen. Michael Flynn. And we know from recent tragedies in San Bernardino and Orlando, even Manchester, that the NSA is suffering from information overload. It has too much data to sift through because it does not focus on the bad guys until after the tragedies. Before the tragedies, it has no focus.

The now public rebuke of the NSA by the FISC is extraordinary, but it is also a farce. The FISC is virtually owned by the NSA. That court has granted 99.9 percent of requests made by the NSA since the court was created. Despite all the public revelations, the FISC looks the other way at non-FISC-authorized NSA spying. The judges of the FISC have become virtual clerks for the NSA. And the FISC has become an unconstitutional joke.

Where does all this leave us? It leaves us with a public recognition that we are the most spied-upon people in world history and that the president himself has been a victim. This fall, the NSA will ask Congress to reauthorize certain spying authorities that are due to expire at the end of the year. Congress needs to know just how unconstitutional, intrusive and fruitless all this spying has become.

Perhaps then Congress will write laws that are faithful to the Constitution — and if so, maybe the folks empowered by those laws will follow them.

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

 
• Category: Foreign Policy • Tags: Government Surveillance, NSA 

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.

 
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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