The Unz Review - Mobile
A Collection of Interesting, Important, and Controversial Perspectives Largely Excluded from the American Mainstream Media
 BlogviewAndrew Napolitano Archive
More Assaults on the Rule of Law
🔊 Listen RSS
Email This Page to Someone

 Remember My Information



=>

Bookmark Toggle AllToCAdd to LibraryRemove from Library • BShow CommentNext New CommentNext New ReplyRead More
ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
AgreeDisagreeLOLTroll
These buttons register your public Agreement, Disagreement, Troll, or LOL with the selected comment. They are ONLY available to recent, frequent commenters who have saved their Name+Email using the 'Remember My Information' checkbox, and may also ONLY be used once per hour.
Ignore Commenter Follow Commenter
Search Text Case Sensitive  Exact Words  Include Comments
List of Bookmarks

Amid all the happy hoopla over President Donald Trump’s trip to Singapore, where he began the process for what he hopes will be the normalization of relations between the United States and North Korea and the denuclearization of the Korean Peninsula, has come an effort by the House Intelligence Committee to interfere with the criminal investigation of the president.

The committee’s chairman, Devin Nunes, a Republican from California, and the Republican majority on the committee have demanded that the Department of Justice turn over documents pertaining to the origins of the investigation of President Trump by special counsel Robert Mueller.

And Nunes has threatened Mueller’s superior, Deputy Attorney General Rod Rosenstein, with censure, contempt and even impeachment if he fails to comply. Can Congress interfere in an ongoing federal criminal investigation? Can it get its eyes on law enforcement’s active files? In a word: No.

Here is the back story.

In the pre-9/11 era, when the FBI and the DOJ devoted their work primarily to investigating criminal activity, they both answered not only to the president but also to the House and Senate Judiciary committees. This long-standing relationship came about by way of a check on the exercise of prosecutorial power by the DOJ and the FBI.

These congressional committees approve the budget for law enforcement, the argument went, and as watchdogs, so to speak, they are entitled to know how the taxpayers’ money — and money borrowed in the taxpayers’ name — is being spent.

The relationship between the congressional committees on one hand and federal law enforcement on the other has been a give-and-take, push-me-pull-you relationship that generally led to compromise between Congress and federal law enforcement.

After 9/11, Congress passed the Patriot Act, which, in addition to authorizing FBI agents to write their own search warrants for all sorts of custodians of records — legal, medical, postal and banking enterprises, supermarkets, and libraries, to name a few — gave the FBI a domestic intelligence mission not unlike that of the National Security Agency, which is America’s domestic spying apparatus.

The intelligence mission enabled the FBI to utilize new tools for law enforcement, under the guise of intelligence gathering. Stated differently, by pretending to be looking for spies, the FBI found crooks. Because the legal threshold for spying for intelligence purposes is far lower than the legal threshold for obtaining a traditional search warrant, FBI agents often took the easier route.

But the FBI’s spying mission also subjected it to the scrutiny of two additional congressional committees, one in the House and one in the Senate. This cross-pollination of law enforcement and intelligence gathering — this mixture of two distinct roles, one traditional for the FBI and the other novel to it, one clearly regulated by the Constitution and the other purporting to be outside of it — tempted not only FBI agents to use the tools of spy-craft for law enforcement (even though it’s prohibited by the Fourth Amendment) but also Congress.

Now back to Rep. Nunes and the House Intelligence Committee.

ORDER IT NOW

The Republicans on that committee are determined to use their regulatory powers over federal intelligence gathering to investigate federal law enforcement. They are doing this because they claim to smell a rat in the origins of the special counsel investigation and they want to get to the bottom of it. In order to get to the bottom of it, they have demanded to see documents in the custody of special counsel Mueller to determine whether there was sufficient probable cause to commence the criminal investigation of Trump back in November 2016.

But it is not the role of Congress to do this in the midst of a criminal investigation, and it is not the role of a congressional intelligence committee to scrutinize law enforcement.

There are two dangers to the rule of law here. The first is that members of this committee could use their security clearances to examine classified materials and then use what they have seen for a political narrative. They cannot lawfully, except on the floor of Congress, publicly reveal classified documents they have seen, but they can (and they have done so in the past) summarize them publicly — and with a political spin.

That endangers the sources of criminal investigators, many of whom are people who communicate with investigators at great personal risk and to whom confidentiality has been promised. That confidentiality is recognized in the law as the informant’s privilege, and it keeps confidential criminal matters from public and peering congressional eyes until the investigation is concluded.

The second and equally harmful danger is that members of the committee could leak what they have seen. To prevent this, prosecutors have a privilege to keep their files secret until they charge or exonerate their targets or subjects.

Under the Constitution, we enjoy the separation of powers. Congress writes the laws; the executive branch enforces them; and the courts interpret them. Congress can no more constitutionally interfere with ongoing law enforcement for political purposes than the DOJ can interfere with the passage of congressional legislation that it doesn’t like.

The down and dirty fear that the DOJ and the FBI have is that revealing the contents of the criminal file on the president to his political allies in Congress in the midst of an investigation of him would be a dangerous precedent, one that would pollute the investigation and give present and future politically powerful potential defendants advantages that no one else has.

That disparate treatment of the president as defendant strikes at the heart of the rule of law. And the rule of law is what protects us from politicians who can’t restrain themselves from violating their oath to uphold the Constitution.

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

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump 
Hide 19 CommentsLeave a Comment
Commenters to Ignore...to FollowEndorsed Only
Trim Comments?
    []
  1. fnn says:

    By now we all know it was a fake, politically-motivated investigation based on lies. The only substantive charges have been against Manafort, and those have nothing to do with Trump or Russia.

    Here’s a podcast summarizing what we know:

    https://amgreatness.com/2018/06/13/what-the-imminent-janus-ruling-means-for-government-unions/

    • Replies: @Corvinus
  2. anonymous[340] • Disclaimer says:

    What “criminal investigation of the president”? Mr. Napolitano doesn’t say.

    What are the legal “origins of the investigation of President Trump by special counsel Robert Mueller”? Mr. Napolitano doesn’t say.

    Why does Mr. Napolitano dismiss as “happy hoopla” the ongoing diplomatic engagement with North Korea? Because those he serves — the people who want to run the country and the world from Washington — don’t want to lose one of their bogeymen.

    Before accepting Mr. Napolitano as a credible authority on anything pertaining to RussiaGate or President Trump, please take time to read critically his columns published here since last November in light of my and others’ comments. Our purported “Freedom Watcher” is a propagandist for the Establishment, a sycophant of its lawyer class.

  3. denjae says:

    Napolitano joins the PRETEND world of the NeoCons:

    ” . . . by pretending to be looking for spies, the FBI found crooks”

    Nooooo . . . What they “found” was a way to invent an endless “ongoing federal criminal investigation” designed solely to harass Trump from office.

    “Not allowed to see documents BECAUSE” is just a last-ditch effort to keep the con going.

  4. Alfa158 says:

    Napolitano is one of the Establishment’s leading practitioners of the fine art of projecting their own crimes and pathologies onto their victims.

  5. Under the Constitution, we enjoy the separation of powers. Congress writes the laws; the executive branch enforces them; and the courts interpret them.

    How quaint. And how sad, considering our reality now.

    the sources of criminal investigators, many of whom are people who communicate with investigators at great personal risk

    Usually that’s the case. But here? Whether you’re in media, politics, or most any corporation, it’s all upside and no downside for your career and your reputation to say anything against Trump, to provide (or invent) any evidence against Trump, to entangle and disconfit Trump and anyone on his side.

  6. Napolitano = mob lawyer.

  7. Judge, why don’t you take a break? Your reason is clouded by bias and your mind seems to be becoming convoluted and crooked. Ever considered doing some pro bono work for the poor, or going back to school to refresh your knowledge of the law?

  8. gcgrann says: • Website

    What on-going investigation, Judge Napolitano? You mean the one started by sore loser Comey that is overseen by Rosenstein who signed the made-up FISA warrant to spy on Trump? So Mueller and DOJ/FBI criminals get to set up Trump – literally – then run a sham investigation that Congress mustn’t touch because it’s an “on-going investigation?”

    You should be ashamed of yourself, Napolitano.

  9. anastasia says:

    I do not see any problems with Congress investigating an on-going investigation, especially one that so readily appears to have been conducted in bad faith, and this grows more apparent as the days, weeks, and months pass? Let me use reductio ad absurdum to make the point, and the investigation being conducted is not too far from the following example.

    What if this fruitless investigation lasts for all the years that the Trump Presidency, for as long as 8 years, and is just as unfruitful as it has been shown to be in the last two years, and winds up costing the American taxpayer hundreds of millions, perhaps even billions, with no end in sight? When is it permissible for Congress to step in and use its oversight powers? Must the evidence rise to the level of proof that the reasons for this investigation was conducted in bad faith? Or must we all wait for the government to go bankrupt before Congress may use its powers?

    If what the Judge says is true, and the investigators are truly not acting in good faith, then the only thing for the investigators to do is never end it, for as long as it is on-going, no one can ever stop them.

  10. Anonymous[128] • Disclaimer says:

    What is growing more apparent is that charges brought against Jeff Sessions were entirely bogus, and there was no reason for him to recuse himself, but there was evidently a plan in place. I listened to the exchange between him and that fool of a Senator and there was no lie told by Sessions.. He was very apparently talked into recusing himself by Rosenstein. Then, the man who signed all the FISA warrants, who had more reason to recuse himself than Sessions every had , hired Mueller and commenced this Special investigation with no interference by Sessions. Further, the investigation by Comey was most definitely bogus. It is more than apparent that it was started in the hope of impeaching Trump, as well as having a chilling effect on any cooperation between Trump and Russia. And why is it that the people in this country are not aware that Russia is no longer the Soviet Union? Why are they not aware that Russia has rebuilt all the Churches destroyed by the communists and brought them back to their former splendor and are building many more?. Why is it that they do not know that Putin is changing laws to better reflect the Church’s teachings, and has the Patriarch of Russia, a man who exemplifies everything christian, sitting at his right hand, guiding the government. Russia is a Christian country, and the more Christian they become, the more the atheistic west seems to hate them. If Russia interfered with our elections, and I do not believe for a minute that they did, then is our government suggesting that this is the first time? Who believes these stupid stories. If the Russians truly interfered without election, then it was not the first time, and the only difference is that it never bothered us before, so why should it now.

    • Replies: @Corvinus
  11. Corvinus says:
    @fnn

    “By now we all know it was a fake, politically-motivated investigation based on lies.”

    You really need to educate yourself here.

    https://twitter.com/SethAbramson?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor

    • Replies: @Ozymandias
  12. Corvinus says:
    @Anonymous

    “Why is it that they do not know that Putin is changing laws to better reflect the Church’s teachings, and has the Patriarch of Russia, a man who exemplifies everything christian, sitting at his right hand, guiding the government.”

    Like Vox Day, Putin is a Christian in name only.

    https://www.christianitytoday.com/news/2016/june/no-evangelizing-outside-of-church-russia-proposes.html

    By moving the Orthodox Church to center stage in Russian affairs, Putin is simply assuring the church’s support for his conservative and nationalist political agenda, without necessarily abiding by its tenets. He is no friend to religion in general. Again, the set of 2016 amendments to existing “anti-terror” and “extremist” legislation is notable because of the inclusion of new restrictions on evangelism and religious missionary work.

  13. c matt says:

    We are asked to believe that the government, investigating the government, under the auspices of the government, will come away with anything other than absolving the government?!?!

    And we called Soviet subjects credulous!

  14. @Corvinus

    “You really need to educate yourself here.”

    Not everyone can afford your swanky twitter education. Twit.

  15. “And the rule of law is what protects us from politicians who can’t restrain themselves from violating their oath to uphold the Constitution.”

    And the institution of law is what is protecting this group of politicians who couldn’t restrain themselves from violating their oath to uphold the Constitution.

    Let’s be straightforward here: a group of senior officials at the FBI and DOJ (along with others) conspired to overthrow the U.S. Government. And now they are using their official capacity to attempt a cover-up of their crimes. Let’s not talk about the threat to the rule of law; that ship has sailed.

  16. Corvinus says:

    “Let’s be straightforward here: a group of senior officials at the FBI and DOJ (along with others) conspired to overthrow the U.S. Government.”

    You REALLY need to educate yourself, as you are peddling Fake News.

    https://investigaterussia.org/timelines/everything-we-know-about-russia-and-president-trump

  17. anonymous[340] • Disclaimer says:

    Maybe the Establishment can be exposed, at least some its sheep enlightened.

    For instance, no one around here even bothers any longer to defend “Judge’s” beltway bologna. (I don’t think that merely posting links to the hysteria published by Hollywood airheads counts. Indeed, “Corvinus” is, I’m 80% confident, a troll whose goal is to see how many can be engaged in faux debate with his Tom Parsons shtick.)

    I still await another Unz columnist to help lift Mr. Napolitano’s robe… a Mueller tattoo?

    • Replies: @anonymous
  18. anonymous[340] • Disclaimer says:
    @anonymous

    The revelations of deeper, broader election meddling at the FBI and DOJ should — if he is intellectually honest — embarrass Mr. Napolitano.

    But don’t be surprised if “Judge” either takes another week off or gives us his “back story” on the manufactured hullabaloo about the children of illegal immigrants.

    We’ll know tomorrow…

  19. Except for the clown Corvinus it’s pretty unanimous here that its retarded to think that Deep State operatives ought to be immune from supervision so long as they keep the process running.

    Mueller’s investigation is anyway not a “criminal” one. It’s a counterintelligence investigation, making Rosenstein’s appointment of a Special Prosecutor entirely inappropriate, and Napolitano’s claim even more retarded than otherwise. See the many repetitions of this point by Andy McCarthy.

Current Commenter
says:

Leave a Reply - Comments on articles more than two weeks old will be judged much more strictly on quality and tone


 Remember My InformationWhy?
 Email Replies to my Comment
Submitted comments become the property of The Unz Review and may be republished elsewhere at the sole discretion of the latter
Subscribe to This Comment Thread via RSS Subscribe to All Andrew Napolitano Comments via RSS
PastClassics
Are elite university admissions based on meritocracy and diversity as claimed?
The evidence is clear — but often ignored
What Was John McCain's True Wartime Record in Vietnam?
Hundreds of POWs may have been left to die in Vietnam, abandoned by their government—and our media.