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Last week’s surprise forced resignation of Jeff Sessions as attorney general of the United States set in motion a series of events that will soon resonate in all corners of the Department of Justice.

President Donald Trump has been steamed at Sessions ever since Sessions removed himself from supervision over the DOJ’s investigation into whether a conspiracy existed between Russian agents and the Trump campaign in 2016 for the Russians to provide assistance to the campaign — a felony.

Sessions’ recusal was perfectly rational and ethically required; he had been a high-ranking official in the campaign and would probably be interviewed as a witness in the investigation. Because ethics rules prohibit DOJ officials from being witnesses in cases that they supervise, Sessions passed the case to his deputy, Rod Rosenstein, who promptly appointed former FBI Director Robert Mueller as special counsel to head the investigation.

When the special counsel began flexing his prosecutorial muscles a little too close to Trump Tower and the Oval Office for Trump’s comfort, Trump’s blood pressure rose, and he asked Sessions to sign and deliver an undated letter of resignation, which Sessions did. On Nov. 7, the day after the midterm elections delivered the House of Representatives comfortably to the Democrats, Trump released the still-undated letter, and Sessions was out of a job.

Then Trump began another legal firestorm by naming Sessions’ chief of staff, Matthew Whitaker, acting attorney general. He did this even though the federal statutes governing succession in the DOJ state that upon a vacancy in the office of attorney general, the deputy attorney general — in this case, the same Rod Rosenstein — shall become the acting attorney general.

In bypassing Rosenstein for Whitaker, Trump has added to the woes he will face when the Democrats take control of the House in early January. That’s because of lingering and now public doubts about Whitaker’s professional qualifications for office and clear statutory language that makes him legally ineligible to be acting attorney general.

Here is the back story.

Every federal executive department, from Defense to Treasury to Justice, has a principal officer — usually called the secretary but called the attorney general for Justice — and a deputy. Neither position can be occupied without a presidential appointment and a Senate confirmation.

The main purpose of the deputy is to be ready to fill in for the principal when that office becomes vacant. Congress created the office of deputy attorney general for the express purpose of having a presidentially appointed and Senate-confirmed person in the wings should the attorney general’s office fall vacant. On Nov. 7, the office fell vacant.

Should the president wish to bypass the deputy attorney general, he may do so, but he may only designate a person who already occupies a DOJ position that is presidentially appointed and Senate-confirmed. Whitaker, Sessions’ former chief of staff, was not in a presidentially appointed or Senate-confirmed job at the time Trump named him acting attorney general.

Whoever runs the DOJ has such vast power over its 90,000 employees, including the FBI — not to mention that he or she is seventh in the presidential line of succession and has the unchecked power to commence criminal investigations, seek and obtain indictments, and terminate criminal investigations already begun — that Congress passed statutes to ensure that no one could hold that job who has not been scrutinized by the rigors of Senate confirmation.

In Whitaker’s case, that scrutiny — if it were to happen — would show a person whose legal thinking is so far outside the mainstream as to create material doubt about his professional qualifications. He recently offered public comments questioning the equality of the three branches of the federal government and challenging the constitutional power of the courts to engage in judicial review.

By saying the courts “are supposed to be the inferior branch” of the government, he has denied a fundamental principle of the Constitution — a truism, if you will — namely, that all three branches (Congress, the president and the judiciary) are coequal. And by questioning the power of the courts to review and void the unconstitutional behavior of Congress, the president and state and local governments, Whitaker has revealed an attraction to legal thinking that is profoundly at odds with 215 years of consistent American jurisprudence.

This is why you should care about who runs the Department of Justice. This is why the Constitution and federal law require that whoever is picked to run the DOJ be confirmed by the Senate. Because the Senate confirmation process is so rigorous, it exposes legal thinking on the part of the nominee, and if that thinking is at odds with basic American legal principles, the process gives senators the opportunity to challenge it.

Without the constitutionally and statutorily required Senate confirmation, a president could put any political hack he likes in charge of the DOJ and the FBI — and thus all federal prosecutions and criminal investigations — wreaking havoc on the rule of law.

Add to this, Whitaker will supervise the special counsel, whose current job is to investigate the president for potential criminal wrongdoing or impeachable offenses. It is contrary to the rule of law that the subject of a criminal investigation — which Donald Trump currently is — could select his own prosecutor.

The whole purpose of the rules and procedures of the special counsel is to keep that office insulated from the political process, immune from the political power of the people the office is investigating, and substantially within the professional judgment of politically independent prosecutors at the DOJ.

Litigation has been filed to remove Whitaker from the office he claims to hold. The courts have not done this before. The president should save them from this unpleasant but necessary task. Once Whitaker is removed, all of his official work will be void. Try putting that toothpaste back into its tube.

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

 
• Category: Ideology • Tags: Donald Trump 
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The Democratic Party has won control of the House of Representatives. Its members effectively will be able to block all legislation that the Senate passes and the president wants. They also will be able to unleash their subpoena power mercilessly on the executive branch. Will the members of the new majority view their victory primarily as an opportunity to legislate or as a chance to investigate?

Here is the back story.

Part of the genius of our system of government is the concept of checks and balances. The two houses of Congress write the laws, and the president enforces them. Each person in the legislative branch and the president were elected by the voters, and it is their duty to exercise their judgment as they believe the voters who put them in office would want it exercised. But all legislation requires the consent of both houses.

The courts exist to resolve disputes irrespective of the wishes of voters, to interpret the Constitution and the laws as they were written, and to protect the natural and constitutional rights of everyone in America from infringement by the Congress or the president or the states.

When one political party controls the Congress and the presidency — particularly a hyperactive in-your-face presidency as we have today — and it enacts its political agenda into law, the minority party is often ignored. This happened in 2010 when a Democratic Congress passed the Affordable Care Act — Obamacare — with no Republican votes, and it happened again last year when the current Congress passed President Donald Trump’s so-called tax cuts with only Republican support. (I say “so-called” because for millions of folks in high-tax states where the president lacks political support, such as my home state of New Jersey, the Trump tax cuts will actually raise taxes.)

The effect of all this is a wish by Republicans to undo Obamacare, something they have tried to accomplish dozens of times even though parts of it are popular, and a wish by Democrats to undo the new tax law even though many folks represented in Congress by Democrats will experience a tax cut.

But this should not be. If laws were written with bipartisan support, if politicians in both parties had a say in the process and a stake in the outcome, if people all across the board politically and ideologically could find some comfort in some aspect of nearly all major legislation, there would be greater respect for law and an ability to rely on its permanence.

The in-your-face presidency has heretofore rejected compromise with Democrats and verbally abused them and fostered legislation that stings them.

Until now.

Now we have the correction that Democrats predicted. Now we will have divided government. Now the Republicans are dominant in only one house of Congress. Now the president will have no choice but to reach across the aisle to those in the House he has branded as “evil” and work with them. In theory, the second half of President Trump’s present term should be marked by compromise and inclusion rather than take-it-or-leave-it alienation.

On which style of governing will history smile?

The answer to that question depends largely on the House Democrats. In the campaign preceding their takeover of the House, they cautiously and successfully avoided even mentioning the potential impeachment of President Trump. Yet Rep. Jerrold Nadler, D-N.Y., the incoming chairman of the House Judiciary Committee — the place where impeachment would originate — indicated last month that the committee will most likely consider impeachment of the president in January.

The House Judiciary Committee will focus on whether Trump fired FBI Director James Comey because Comey declined to go easy on Mike Flynn — the president’s friend and national security adviser — as Comey has said the president demanded. The alleged crime is attempted obstruction of justice, which Democrats will argue the president committed by interfering with a federal criminal investigation for venal — i.e., dishonest or self-protective — purposes. They will probably call Deputy Attorney General Rod Rosenstein as a witness and extract from him his belief that there was no legitimate governmental purpose served by the Comey firing and that it was done for the reasons Trump told Lester Holt of

NBC News — because Comey would not shut down the Flynn investigation.

The House Intelligence Committee will most likely reopen that committee’s investigation of the 87 communications that the Trump campaign had in 2016 with Russians, many of whom were agents for the Russian government. This has barely been addressed by the current House Intelligence Committee. Look for that committee to interrogate publicly Rosenstein, former Trump campaign manager Paul Manafort and former deputy campaign manager Rick Gates. The House Democrats hope this will be a shadow investigation of special counsel Robert Mueller’s investigation, without the special counsel’s required secrecy.

The House Oversight and Government Reform Committee will begin to examine the monies that the president and his family have earned as a result of foreign diplomats staying at hotels the Trump Organization manages — it doesn’t outright own them — in Washington and New York. This will include a review of the heretofore elusive Trump corporate and individual income tax returns.

This, too, will be a shadow investigation to two litigations brought by members of Congress and others against the president personally that allege that Trump has violated the Emoluments Clause of the Constitution. That clause prohibits a president from receiving anything of value from a foreign head of state during his time in office. Look for Michael Cohen — Trump’s former personal lawyer — and Trump’s personal and corporate accountants to testify on this.

Do the Democrats really think the country wants to go through all of this? Will the Democrats use their takeover of the House to work with President Trump or to wreck his presidency? Will the politically wounded president find within him any self-restraint and willingness to compromise? Might there be a silver lining to Trump’s midterm dark cloud?

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

 
• Category: Ideology • Tags: 2018 Election, Democratic Party, Donald Trump 
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I was sitting at Mass last Sunday in a cavernous Catholic church on Manhattan’s Upper West Side near Lincoln Center, praying and thinking about the horrible events in America last week.

A white supremacist who lived in a truck covered with images of Donald Trump and his political adversaries terrorized the neighborhood in which I live and much of the country by sending pipe bombs to former presidents and other prominent Democrats and to CNN through the Postal Service. A virulent hater of foreign-born people and Jewish people killed 11 innocent Jewish worshippers using a lawfully owned semiautomatic rifle in a Pittsburgh synagogue.

And the president of the United States lamented publicly that these events might serve to halt what he called momentum toward Republican candidates in the nationwide voting next week because the news media — of which I am a tiny part — might dwell on these human tragedies and thus not pay sufficient attention to him and his message between now and Election Day.

These events shook me deeply, as they did many Americans. Yet as the Mass on Sunday proceeded, the Gospel reading brought me some small understanding.

A blind beggar named Bartimaeus learns that Jesus is about to walk near him, so he shouts over the noise of the crowd surrounding Him: “Jesus, son of David, have pity on me.” When no one responds, he shouts it again — and then again and again, until eventually Jesus hears him and shouts back, “What do you want of me?”

Bartimaeus replies: “O Lord, that I might see.” Jesus responds by restoring the blind man’s sight.

The scene is historically rich and theologically complex. Its richness comes in the realization that the first recorded instance in which Jesus is referred to publicly as being divine comes out of the mouth of a blind man. The complexity is the fulfillment of Jesus’ own prophecy, as well as the resolution of His natural human impatience with His disciples’ haughtiness as they recognize for the first time that the truth will not come exclusively out of their mouths or even the mouths of the well-tutored but often will come out of the mouths of babes, so to speak.

This biblical scene is a metaphor for our own age. Most of us can see with our eyes (we have the gift of biological sight), but we lack full understanding — the mental ability to “see” into the hearts and minds of evil ones around us.

The world is not so happily arranged that our understanding can discern the evil in people who choose darkness over light — hence the need for leadership that liberates and heals rather than stifle and wound.

President Trump — like all his modern predecessors — has a buIly pulpit available to him. He has the means through which to mold the hearts and minds of people to do good and to avoid evil, and he has the means through which, as well, to intimidate them into fear of challenging him.

And that bully pulpit must be exercised within the confines of the Constitution, because it — and it alone — is both the source of and the restraint on presidential power.

Should tragedies of terror and horror be exploited for political purposes? Should presidents lament unforeseeable fear and bloodshed because they divert our eyes and ears from the presidential political message or because real innocent human beings have suffered horrifically and irreversibly and those who have survived yearn for the balm that only a true leader who has genuine empathetic understanding can bring? Should the president’s bully pulpit be used to divide and polarize or to unify and uplift?

If you are reading this column in the ordinary way, you already have the gift that Bartimaeus begged for and received. Yet each of us is a modern-day Bartimaeus — seeking that other sight, the one we call understanding. We hope to see it and its cousins — self-restraint and human compassion — in the presidential heart. I do not see them in this president.

They are not there when Democrats — of whom I have never been one — are branded as evildoers. They are not there when the often articulate words of public presidential critics — of which I am not usually one — are characterized as fake or treasonous or even the enemy of the people.

They are not there when this president appears to see every tragedy and embrace every event in terms of himself and his short-term political needs rather than defend the Constitution, which he has sworn to uphold. They are not there when he claims he can amend the Constitution on his own and deny birthright citizenship to babies born in America to undocumented parents. And they are not there when large and deep segments of the American populace are presidentially ridiculed and alienated rather than embraced and invited in.

What to do about this? The Donald Trump I have known personally for 30 years is warm, gregarious and bighearted. The Donald Trump I have seen this election season is angry, reckless and lacking in understanding.

His words have given comfort to the worst among us.

To be a successful president, he needs externally what he lacks internally — restraint. Restraint produces introspection and understanding and respect for the opinions of those who disagree.

In our constitutional system, exterior restraint on the president can come only from Congress. That means that Democrats — with whom I agree on next to nothing — if they win the House of Representatives, may actually save Donald Trump from himself because he will be constitutionally compelled to respect and understand and work with them.

A politically divided federal government is often frustrating and slow. Neither side gets all it wants. But like the persistence of the sightless beggar Bartimaeus, a divided federal government just might produce more understanding for more people — and perhaps some presidential self-restraint — and then the binding of many wounds.

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

 
• Category: Ideology • Tags: Donald Trump, Immigration 
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In Jean Raspail’s 1973 dystopian novel, “The Camp of the Saints,” about 1 million poor folks from India make their way on hundreds of ships around the southern tip of Africa and up to the French Riviera. The international media use helicopters to follow the flotilla, and the news of the flotilla’s movements dominates the headlines for weeks.

As the flotilla gets closer to France, panic sets in, and fear becomes a political weapon. The government doesn’t know what to do. The president of France finally orders the French military to secure the borders and use deadly force to prevent the flotilla from landing.

Then, after pangs of conscience set in and animate him, the president tells senior military personnel to instruct their troops to use their own judgment and do the right thing. With the exception of some stereotypical holdouts, the military members take their arms and flee into the countryside.

The flotilla lands. The passengers have no desire to assimilate, and they murder people who do not welcome them. They change immigration laws and become a paradigm for other mass migrations. Across the West, pro-immigrant governments are established.

When the book was first published, it found favor in many nativist quarters. It is brilliantly written, and the standard English translation offers compelling reading and is hard to put down. It is also rabidly racist, portraying nearly all in the West as thoughtful, intelligent and honest and nearly everyone of color as avaricious, lazy and amoral.

Regrettably, the book has been seen in the West Wing of the White House.

I recount this brief summary of a French literary work because I fear its unrealistic ending and harsh, racist treatment of those seeking a better world may be animating Trump administration policies about the caravan of 7,000 folks from Latin America who are in Mexico and walking toward the United States.

Like the fictional French president, President Donald Trump has made unsubstantiated allegations that bad people are in the midst of the caravan. And like the fictional French president before his change of heart, Trump has called himself a nationalist.

Nationalism and its cousin nativism are dangerous attitudes that have come and gone almost cyclically throughout American history. They foster an arrogant aura about Americans who embrace them — we are more deserving than you because our ancestors got here before you or yours did — and they cause fear and hatred of foreign-born people.

They also lull one into the lazy mental habit of judging the moral worth of people not on the basis of their personal choices and fidelity to first principles but on the basis of their membership in groups marked by immutable characteristics of birth, such as people’s place of birth.

This habit rejects a founding American principle that we are all created equal and endowed by our “Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

The quoted words above are not just Thomas Jefferson’s most famous musings, which made their way into the Declaration of Independence; rather, they embody natural law. And natural law teaches that human rights come from our humanity — not from the government — and they adhere in everyone, not just Americans.

I have argued in this column that the right to travel is a natural right, even though it was not until 1969 that the Supreme Court recognized it as such. The courts protect natural rights by imposing a very high bar for the government to meet before it can interfere with them. That bar — called strict scrutiny — was crafted so as to make it nearly impossible for the government to interfere materially with personal freedoms, such as travel.

And the Constitution itself, from which all federal powers derive, does not even delegate to the federal government any power over immigration — i.e., who can come here. It just gives it power over naturalization, i.e., who can become a citizen here.

The likely claim of the folks in the caravan will be political asylum. Political asylum requires the claimant to demonstrate an intolerable situation in the home country caused by the government — not by economic forces — and aimed at the person seeking asylum. Thus, the failure of the government in the country of origin to protect basic natural rights or to enforce basic criminal laws — for example, permitting criminal gangs to rule — is a valid basis for asylum, whereas loss of a job is not.

Once an asylum-seeker has so much as the tip of her shoe on American soil, she can file an asylum claim. The claim entitles her to a hearing before an immigration judge. Most of these hearings take six to eight months after the claim has been filed to reach a judge. In the Obama years, asylum claimants were set free until their hearings. The Trump administration has detained them and separated children from their parents. The detentions are lawful; the family separations are not.

Yet people who want to work should be allowed in. My colleagues at The Wall Street Journal have demonstrated indisputably that most of the work that immigrants will do is work most Americans eschew. Their work not only benefits them but also produces family stability and increases wealth, which finds its way into the stream of commerce.

The blanket rejection by force of everyone in the caravan violates the spirit and the intentions of the laws the president has sworn to uphold. Those laws mandate a careful examination of all who want to come here — on a neutral case-by-case basis — not a blanket prohibition.

We who call ourselves Americans are nearly all descended from immigrants. Yet when our forebears arrived here, they were met simply by prejudice and government indifference. The poor folks in the caravan are likely to be met by prejudice and government force.

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

 
• Category: Ideology • Tags: Immigration 
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The litigation brought by Stormy Daniels against Donald Trump has had its day of reckoning. The adult-film star who sued the president for defamation not only lost a portion of her lawsuit but was ordered to pay the president’s legal bills. All this was a resounding victory for the freedom of speech.

After the right to life, protected by the Fifth and 14th amendments, and the right to be left alone, protected by the Fourth, the freedom of speech, protected by the First, is our most cherished. James Madison, who drafted the Bill of Rights, was careful to refer to speech as “the” freedom of speech so as to underscore the Framers’ unambiguous belief that free speech is pre-political. Stated differently, it existed before the government did and thus did not come from the government. As it does not originate in the government, Madison and company believed it originates in our humanity.

Earlier this week, a federal judge in Los Angeles ruled that Daniels’ efforts to use the courts to punish the president for his exercising the freedom of speech were frivolous.

Here is the back story.

Daniels claims that she and Trump had a consensual sexual encounter in a Lake Tahoe hotel room in 2006, shortly after Trump’s youngest son, Barron, was born. On CBS’ “60 Minutes” program, she told Anderson Cooper of the sexual experience in vivid and graphic detail. Trump has denied many times that he had a sexual encounter with Daniels.

Daniels also told Cooper that she had been with Trump in public after their encounter, and she produced a photo of them together in a public place. She then told him that after she and Trump had ended their friendship, a stranger approached her in the parking lot of a Las Vegas fitness center and threatened to harm her if she failed to keep the existence of her relationship with Trump quiet.

She even produced a sketch of a man she said depicted the person who threatened her. In the same interview, she revealed that Michael Cohen, then Trump’s personal lawyer and today a government witness against him, paid her $130,000 to remain quiet about her alleged affair with Trump, and she accepted the money and agreed to stay quiet.

Trump wasn’t having any of this. He tweeted that the depiction of the man Daniels claimed threatened her bears a striking resemblance to her former husband and that she had made up the story of their sexual encounter, as well as the story of the parking lot threat. He called the version of events she gave to Cooper a “con job.”

While Daniels’ back-and-forth with Trump was going on, her lawyers filed litigation in federal court seeking to invalidate the nondisclosure agreement she signed with Cohen and accusing Trump of defamation when he said she had pulled off a con job. On Monday of this week, at Trump’s request, a judge dismissed the defamation claim.

Bad cases often make good law, and this is one of them. Whether one believes Daniels or Trump about what may have happened in a Lake Tahoe hotel room 12 years ago, one can appreciate the free speech values at play here. The Bill of Rights in general — and the First Amendment in particular — articulates negative rights. Stated differently, the First Amendment doesn’t grant the freedom of speech (we know that from Madison’s use of the word “the” preceding the word “freedom”); rather, it negates the ability of the government, which includes the courts, to infringe upon speech.

The “free” in “free speech” means free from government infringement. So, if Daniels calls Trump directly or by implication an adulterer on national television, he can take to Twitter to proclaim that she has perpetrated a con job — and he can do so with impunity.

The failure of the courts to protect Trump’s right to challenge his accuser’s veracity in public — or the use of the courts to attempt to intimidate Trump from proffering that challenge by making him pay for it — would have constituted an infringement by the government of Trump’s free speech rights.

Sending a signal that there was no legal basis to claim that “con job” in reply to “adulterer” was defamatory and unwilling to be the instrument through which speech — even the rough-and-tumble variety Trump often employs — could be punished, deterred or infringed upon by the government, the court found Daniels’ defamation claim to be frivolous. She and her lawyers ought to have known the defamation claim would not prevail, and thus she or they (at this writing, it is unclear who) were ordered to pay the legal bills Trump incurred for defending the defamation claim.

The United States has a long and storied history with the freedom of speech. The same generation that ratified the First Amendment — in some cases, the same human beings — also enacted the Alien and Sedition Acts, which prohibited speech defamatory of the government. Thomas Jefferson pardoned all who were convicted under this dreadful and unconstitutional law, including a member of Congress. Yet Abraham Lincoln, Woodrow Wilson and Franklin Roosevelt all punished dissenters for the anti-war speech they uttered in wartime, and they got away with punishing them.

But since a unanimous opinion in 1969 involving hateful words uttered by a Ku Klux Klansman, the Supreme Court has held that all innocuous speech is absolutely protected from government interference and that all speech is innocuous when there is time for more speech to challenge or rebut it. This has led to our robust modern jurisprudence, which declares that individuals decide for themselves what to say and hear. The government does not decide for us.

In America, it may take a tawdry tale of sex in a hotel room to bring these values to light.

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

 
• Category: Ideology • Tags: Donald Trump, Free Speech 
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What if the whole purpose of an independent judiciary is to be anti-democratic? What if its job is to disregard politics? What if its duty is to preserve the liberties of the minority — even a minority of one — from the tyranny of the majority? What if that tyranny can come from unjust laws or a just law’s unjust enforcement?

What if we have a right to insist that judges be neutral and open-minded rather than partisan and predisposed to a particular ideology? What if presidential candidates promise to nominate judges and justices who they believe will embrace certain ideologies?

What if history shows that Supreme Court justices appointed by Democratic presidents typically stay faithful to their pre-judicial ideologies? What if history shows that justices appointed by Republican presidents tend to migrate leftward, toward the middle of the ideological spectrum? What if some Republican-appointed justices — such as Sandra Day O’Connor, Anthony M. Kennedy and David Souter — migrated across the ideological spectrum so far that they became pillars of the high court’s abortion jurisprudence even though the presidents who appointed them publicly expected the opposite?

What if the real business of judging is interpreting words in the Constitution and federal statutes? What if there is no ideologically neutral way to do that?

What if one theory of constitutional interpretation — espoused by people who say we have a “living Constitution” — informs that the words written decades or centuries ago should be interpreted and understood in accordance with their ordinary meaning today? What if this theory lets judges decide what those words mean today?

What if the opposite theory of constitutional interpretation — called “originalism” — informs that the meanings of words in the Constitution and federal statutes were permanently fixed at the time of their enactment? What if this theory binds judges to well-grounded historical meanings of words and the values they express? What if there is no reconciliation between these two theories of constitutional interpretation? What if judges and justices must choose one or the other or variants of each?

What if the Constitution proclaims itself to be the supreme law of the land? What if that means that all laws and presidential prerogatives that are contrary to the Constitution are unconstitutional and the courts before which those laws and prerogatives are challenged have a duty to declare them unconstitutional?

What if judges and justices — when confronted with laws they like that are clearly unconstitutional — often find creative ways to uphold those laws? What if that is not what judges and justices are supposed to do but they do it anyway?
What if the Fourth Amendment to the Constitution prohibits searches and seizures by the government without a search warrant issued by a judge and based on probable cause of a crime? What if that amendment also requires that all search warrants issued by judges specifically describe the place to be searched and the person or thing to be seized?

What if the Supreme Court has consistently held that surveillance constitutes a search under the Fourth Amendment? What if the British practice of spying on colonists was one of the forces that animated the Fourth Amendment?

What if the Foreign Intelligence Surveillance Act of 1978, the Patriot Act and their various amendments authorize federal courts to issue warrants that are not based on probable cause of a crime and authorize warrantless surveillance for intelligence-gathering purposes? What if the George W. Bush, Barack Obama and Donald Trump administrations have taken the extreme position that these laws permit warrantless surveillance on everyone in America, even those who are not suspected of wrongdoing?

What if this warrantless surveillance has subjected every person in America to the loss of rights protected by the Fourth Amendment? What if the Supreme Court has characterized the principle of those rights as being among the highest-protected by civilized society — namely, the right to be left alone?

What if a young lawyer who helped to write the Patriot Act in 2001 and its amendments in 2005 and who advised President Bush that he could spy on all people all the time was rewarded for that work with a lifetime appointment to the federal appeals court in Washington, D.C.?

What if this same lawyer, by now a federal appellate judge, was confronted with a case in which the feds had spied on Americans in blatant violation of the Fourth Amendment? What if this judge was publicly committed to originalism — which informs that the Fourth Amendment prohibits (SET ITAL) all (END ITAL) warrantless surveillance of people in America, no matter its purpose?

What if this judge employed linguistic acrobatics in ruling on this conflict between domestic warrantless surveillance — which he advised a former president was constitutional — and the original meaning of the Fourth Amendment, which he knew bars government spying without warrants?

What if this judge — claiming a loyalty to originalism but nevertheless embracing its opposite, the concept of a “living Constitution” — ruled that the feds can spy without warrants on anyone at any time, as long as they do so for intelligence-gathering and not law enforcement purposes? What if this intelligence-gathering exception to the Fourth Amendment exists only in this judge’s mind and not in the Fourth Amendment itself? What if the Patriot Act permits the sharing of intelligence data with law enforcement? What if in this judge’s mind, every bit of data on your mobile device or computer — financial, legal, medical, personal, professional, intimate — is available for government surveillance on a whim and without a search warrant?

What if that judge just joined the Supreme Court? What if his perverse views of privacy and the Fourth Amendment were never discussed at his confirmation hearings but his adolescent drinking habits and sexual proclivities were? What if it is too late to preserve, protect and defend the Constitution? What do we do about it?

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

 
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Harsh winds are blowing on Capitol Hill. The hoped-for and feared clash between Judge Brett M. Kavanaugh and his principal accuser, Dr. Christine Blasey Ford, has come and gone, with all of its calculated and spontaneous outbursts, as well as gut-wrenching emotion.

Dr. Ford subjected herself to the public humiliation of revealing an intimate and horrific event, and she did so with grace and credibility. Judge Kavanaugh subjected himself to absurd questions about his youth, and he offered compelling denials with ferocity and indignation.

At the end of the Ford testimony, it seemed Kavanaugh was at the bottom of a pit. At the end of his testimony, it seemed he had climbed out. His denials of having sexually assaulted Ford 36 years ago lacked the dignity and impartiality that the law requires of federal judges, but his anger and political accusations were understandable for a man who believes he has been falsely accused in such a way as to taint his reputation for the rest of his life.

Whom should we believe?

In this setting, there were few rules and no burdens of proof. Ford surely did not prove that a youthful Kavanaugh assaulted her, and Kavanaugh surely did not disprove it. But the setting was not a court of law. It was a political setting utilizing legal tools — taking oaths to tell the truth, confronting one’s accuser, being subjected to cross-examination — the goal of which was to create a general impression of believability. In that respect, both Ford and Kavanaugh succeeded.

Then a strange series of events happened.

After all interrogations were completed and after all Senate Judiciary Committee members made public statements, the committee voted along party lines, 11 to 10, to recommend sending Kavanaugh’s nomination to the floor of the Senate.

This was only a symbolic vote, because committee approval is not required under Senate rules as a precondition for a full Senate vote. Then the committee voted by consensus to ask the White House to dispatch the FBI to reopen its background investigation of Kavanaugh for seven days.

It is quite simply unprecedented and unheard of for the Senate Judiciary Committee to ask for FBI agents to investigate a nominee after he has testified about the subject of the investigation and after the committee has approved his nomination. If the new FBI investigation is a genuine search for evidence, there should be no time limit imposed. What will the committee do if the FBI finds evidence of unworthiness for office or if it needs more time? Will the committee reopen hearings and take another meaningless vote?

This is a perilous investigation for Judge Kavanaugh because he has already testified under oath about the subjects of the investigation. It would have been fairer to all involved had the FBI been called in before last Thursday’s testimony as was done in the similar Anita Hill/Clarence Thomas episode in 1991.

In his testimony, Kavanaugh gave the clear impression to the Senate Judiciary Committee that in his youth he was not a heavy drinker who became belligerent or who blacked out. Drinking to excess and becoming belligerent or somnolent after drinking in one’s youth are, of course, not criminal acts unless someone is harmed thereby.

However, lying about any of this under oath can constitute perjury, and giving a false impression about any of it to Congress or to congressional investigators — even if one’s words are literally accurate — can constitute the independent crime of misleading Congress.

If the FBI finds credible evidence to substantiate perjury or misleading Congress by Kavanaugh, his nomination and his current tenure as a federal judge are doomed.

And the FBI will dig. Its agents have legal responsibilities and ethical obligations that transcend instructions given to them by their superiors. If agents come upon evidence of crimes, they are required to pursue the evidence, no matter the time consumed or the political consequences.

Why is this nomination the subject of such rancor?

I have argued countless times that the federal government has grossly exceeded the limitations the Constitution imposes on it. Wherever you are as you read these words, look around you and try to find something in your line of sight that is not regulated by the federal government. It will be nearly impossible. Today the feds regulate not only our personal private behavior but also the states that created the federal government. More than half of each state’s budgetary expenditures are mandated by the feds.

And passing final judgment on all this — ratifying the Wilsonian view of the federal government (the feds may do whatever there is a political will to do, except that which the Constitution expressly prohibits) and eschewing the Madisonian view (the feds may do only what the Constitution expressly authorizes) — is the Supreme Court.

As the reach of federal power has expanded, the power of the Supreme Court to restrain or unleash that reach has expanded. Add to this the life tenure of Supreme Court justices and the mania for re-election of members of Congress and you can recognize the slow transfer of governmental power from the elected branches to the unelected one.

Should the right to life and the extent of the imperial presidency and whether the government is obligated to provide health care be decided by elected representatives or by the Supreme Court? From those who expect the high court to decide these issues — a court now evenly split, 4 to 4, along ideological lines — is it any wonder the Kavanaugh nomination is worth a bitter battle?

The Supreme Court should not be political. It is the anti-democratic branch of government. Its constitutional obligation is not to do the people’s will but to preserve personal liberty from the tyranny of the majority.

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

 
• Category: Ideology • Tags: Supreme Court 
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Until two weeks ago, President Donald Trump’s nomination of Judge Brett Kavanaugh to a seat on the U.S. Supreme Court seemed a sure thing. He ably handled more than 1,200 questions put to him by members of the Senate Judiciary Committee. He demonstrated even to his adversaries a masterful command of constitutional jurisprudence. The FBI had completed six background investigations of Kavanaugh throughout his career in government, and it found no blemishes.

Trump promised that he would appoint federal judges and justices who generally share his views on life, guns and administrative regulations and who have a minimalistic view of federal power. When he announced the Kavanaugh nomination, it appeared he had found his man.

The nomination requires Senate confirmation by a majority vote. The Senate currently has 51 Republicans and 49 Democrats. A few Republican senators do not share the president’s stated views on the judiciary, and a few Democrats do. The inside consensus was that enough Democratic senators running for re-election in states that Trump carried in 2016 would vote to confirm Kavanaugh and those Democrats would handily offset the few Republicans who might oppose him.

During his confirmation hearings, Kavanaugh dutifully followed the pattern of all current sitting justices at their confirmation hearings by declining to answer hypothetical questions which sought answers as to how he might vote on certain issues likely to come before the court. He survived the grueling cross-examination by Committee Democrats and even won begrudging praise from a few.

Then, Sen. Dianne Feinstein, a Democratic member of the Judiciary Committee, dropped a bombshell.

She revealed that a constituent who wished to remain anonymous had written a letter to a member of the House of Representatives, who had turned the letter over to Feinstein. The letter contained allegations by the writer, Dr. Christine Blasey Ford, that Kavanaugh had drunkenly attempted sexual assault against her 36 years ago. Feinstein had the letter for two months before she revealed its existence — a week after the Kavanaugh confirmation hearings had ended.

This is reminiscent of allegations leveled by Professor Anita Hill against then-Judge Clarence Thomas, though those allegations were of inappropriate words in the workplace and the Ford allegations are of force and violence in a bedroom. When Hill’s allegations were published, President George H.W. Bush dispatched the FBI to resume its background investigation of Thomas, and it did so.

Trump has declined to dispatch the FBI to investigate Ford’s allegations, and other allegations that have now followed hers, because he and Senate Republicans are determined to seat Kavanaugh by next week.

In the absence of an FBI investigation, Ford gave an interview to The Washington Post in which she aired her complaints in graphic detail, despite missing facts and fuzzy recollections. Democrats demanded that the Judiciary Committee hear from her and again from Kavanaugh. They appear to be assuming that Kavanaugh should not enjoy the American presumption of innocence and — without hearing a word from Ford or seeing any corroborating evidence – have concluded that Kavanaugh must be guilty of this alleged offense and thus cannot be confirmed.

Then the folks in the White House who are managing the Kavanaugh nomination advised him to violate Criminal Procedure 101: Don’t deny publicly an allegation before it has credibly and publicly been made. So, Kavanaugh was interviewed by my Fox News colleague Martha MacCallum. Her questions were far better than his answers.

His answers to the allegations contained in a newspaper story were three-fold — he didn’t do it, he wants a fair process and — unthinkably — he was a virgin during his high school and college years. I say “unthinkably” not because virginity is beyond belief but because this claim was not in response to any of MacCallum’s questions and it bore so deeply into Kavanaugh’s personhood as to be none of the public’s business. And it is not a defense to the Ford allegations.

What’s going on here?

What’s going on is crisis and panic. The pro-choice Democrats are in crisis: They are so fearful of a decisive vote to limit the Supreme Court’s abortion jurisprudence that they are willing to destroy a qualified judge’s career to block his advancement. And Kavanaugh’s handlers, who, at this writing, probably lack the votes for confirmation, have recklessly put him on the offensive, even if it is debasing and invasive.

Now we await a potentially tragic confrontation on national television between Ford and Kavanaugh, which will come down to perception rather than reality. The issue is not whether he did it. Rather, it is whether his denials are more believable than her allegations. At the end of their Judiciary Committee confrontation, will the general public perception be that Ford was more credible or that Kavanaugh was more credible?

There are no rules here. Ford has no legal obligation to prove her allegations, and Kavanaugh has no legal obligation to disprove them.

A tie — the public perception that Ford and Kavanaugh are equally credible — will be very troublesome for Kavanaugh. No woman would go through what Ford is going through if she lacked a personal commitment to the truth. So Kavanaugh can only win if Dr. Christine Ford is generally disbelieved.

The Kavanaugh nomination was supposed to be Trump’s gift to his pro-life, conservative, evangelical base. It has become anything but that. If Judge Brett Kavanaugh is confirmed, will he ever lose the taint of these allegations? If he is not confirmed, can he return to the second-highest court in the land, on which he now sits? Is this how the framers expected the selection process for the Supreme Court to play out? In a word: No.

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

 
• Category: Ideology • Tags: Supreme Court 
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If you have been following the serious destruction brought about by Hurricane Florence in North Carolina and the political turmoil caused by the allegations of teenage sexual misconduct made by Dr. Christine Blasey Ford against Judge Brett Kavanaugh, along with his firm and unbending denials, you might have missed a profound event in a federal courtroom in the nation’s capital late last week.

The Florence damage may take years to repair, and the Kavanaugh nomination to the U.S. Supreme Court, which once seemed assured, at this writing is in a sort of limbo, pending an Anita Hill/Clarence Thomas-like confrontation before the Senate Judiciary Committee next week. But when Paul Manafort, President Donald Trump’s one-time campaign chair, entered a guilty plea in federal court last week, it created the potential for a political earthquake.

Here is the backstory.

Manafort was indicted by two federal grand juries — one in Arlington, Virginia, and the other in Washington, D.C. — for financial crimes committed before and during his time running the 2016 Trump presidential campaign. Both prosecutions have been led by Robert Mueller, the Department of Justice-appointed special counsel charged with investigating whether there was a conspiracy between the Trump campaign and people working for the Russian government.

Often, when prosecutors are looking for evidence of crime A, they find evidence of crime B. This is what happened to Manafort. Yet, as the trial judge said in Manafort’s Virginia trial last month, which ended in convictions on 8 of 18 charges, the feds were indeed looking for evidence of crime B as well. We all know that the principal reason for pursuing Manafort on financial crimes has been to squeeze him for what he knows about Trump.

Last week, on the eve of Manafort’s second trial, that prosecutorial strategy paid off when he entered a guilty plea before a federal judge in Washington, D.C. Manafort’s guilty plea is unique and extraordinary. In the plea, Manafort, who only pleaded guilty to two federal crimes — witness tampering and conspiracy to defraud the government — also admitted that he committed dozens of other federal and state crimes.

This was intentionally maneuvered by Mueller as part of the plea agreement so as to make it bulletproof from a presidential pardon. I have never seen this before. The president can only pardon federal crimes. Should he do so for Manafort, state prosecutors in New York, Virginia and California — the states where these crimes (mainly bank fraud) to which Manafort admitted under oath actually took place — can seek indictments immediately. It will be easy to indict and easy to convict Manafort because of his public admissions last Friday.

The pattern of crimes to which Manafort admitted but for which he did not plead guilty is breathtaking. It involves tens of millions of dollars, the highest-ranking former government officials in the Ukraine, an unnamed Obama Cabinet member and a few Russian oligarchs. The only good news for Trump in all this is that he and his Republican congressional colleagues will be spared the daily barrage of negative headlines from a second Manafort trial, which was scheduled to start this week and which would have led up to the midterm elections, had it not been aborted by the guilty plea. But the president surely fears a beast in the night in the form of whatever Manafort privately tells Mueller.

The plea agreement — all 117 pages of it — does not spell out what evidence Manafort gave Mueller to persuade him to agree to cap Manafort’s prison time exposure at 10 years when he could have gotten 60. But it does spell out Manafort’s willingness and now legal obligation to assist Mueller.

We know that Manafort’s personal offer of assistance to Mueller took place over the course of two days of negotiations on Monday and Tuesday of last week. That type of meeting, during which Manafort tipped his hand as to what evidence he could give Mueller about Trump, has been called a “Queen for a Day” by federal prosecutors and FBI agents because the defendant gets to say whatever he wants and if the negotiations fail to produce a deal the feds cannot use what the defendant has told them. The meeting obviously intrigued and excited Mueller’s team, and hence a deal was struck.

What did he tell them?

Manafort was present at the July 2016 Trump Tower meeting between campaign officials and Russian intelligence agents, and he made notes. He was present at the preparatory meeting for that Trump Tower meeting. He can probably explain the circuitous and mysterious route of Russian money transfers that followed the Trump Tower meeting. He can explain the 80 times the campaign was in contact with the Russians while he was the campaign chair, and he probably knows if Trump personally knew of the Trump Tower meeting in advance and of any agreements made there.

Stated differently, Manafort can help Mueller paint the Trump Tower meeting and whatever followed it as an agreement by the campaign to accept something of value from a foreign entity, even if the thing of value never arrived: That would be a criminal conspiracy, which my media colleagues call “collusion,” a non-legal term. Manafort can also inform Mueller of his financial deals with Trump that preceded Trump’s candidacy, at least one of which involved Russian money.

The president’s lawyers have shrugged off the Manafort guilty plea as unrelated to the president. This is false bravado for public consumption only, and I don’t blame them for it when their client is the president. But if their client has been candid with them, then they can prepare for the Manafort bombshells that are coming.

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

 
• Category: Ideology • Tags: Donald Trump, Russiagate 
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Last week, The New York Times published a scathing critique of Donald Trump — the man and the president. The Times said the critique was written by a senior Trump administration official who insisted on remaining unnamed. This bitter and harsh editorial, which portrays the president as dangerous to the health of the republic and his White House as slouching toward dysfunctionality, has understandably infuriated him.

Trump first accused the Times and its unnamed writer of treason, and then he publicly asked for a Department of Justice investigation to find the writer. Then, to change the subject, he threatened to declassify documents submitted to the Foreign Intelligence Surveillance Court in 2016 — before he was president — that he believes were used to commence the Robert Mueller-led investigation of his presidential campaign.

I am deeply disappointed that the president uttered the word “treason.” This is wrong under the law and a dangerous charge to make. The Times op-ed is protected political speech and personal opinion. Treason is the only crime defined in the Constitution, thereby preventing Congress and the courts from changing its meaning. It consists only of either waging war against the United States or any of the states or providing aid and comfort to those who are waging such a war.

The president should know that it is nearly impossible to commit treason by expressing an opinion. Even calling for a Nazi victory over the U.S. during World War II — as hateful and harmful as such speech was — constituted protected speech and was hardly treasonous.

Preventing a repeat of the long, sordid, barbaric history of treason prosecutions by British monarchs for the expressions of political, personal or trivial opinions about the Crown or the government (Henry VIII once ordered that it was treasonous to make eye contact with him in public, absent his overt invitation) is the basis for its strict constitutional definition.

The DOJ investigates criminal acts, not workplace disputes or government leaks of unclassified materials. Had the unnamed Times writer revealed classified materials, there would be a basis for a DOJ investigation, but the president’s torment cannot form the basis for one. However, that does not bar the president’s lawyers from conducting their own investigation, as the president is surely entitled to senior administration officials who share his goals, confidence and secrets.

The Foreign Intelligence Surveillance Act needs more than exposure; it needs extinction. I have been arguing for 40 years that FISA is unconstitutional. The Fourth Amendment protects the privacy of everyone in the U.S., and it establishes firmly that personal privacy may be pierced by the government only when it has demonstrated to a judge the existence of probable cause of a crime.

Probable cause requires a demonstration under oath that piercing the privacy of a target would more likely than not produce evidence of a crime. And the search warrants signed by judges must “particularly describ(e) the place to be searched, and the persons or things to be seized.”

FISA established a lesser standard for piercing personal privacy — probable cause of communicating with a foreign person (originally an agent of a foreign government, now just any foreign person). That standard — though unconstitutional — is obviously easier to achieve than probable cause of a crime.

As well, FISA warrants, many of which permit the bearer to look at and seize vast data, unleash the bearer without particularly describing the places to be searched or the persons or things to be seized. One FISA warrant I saw authorized telephone surveillance of all Verizon customers — all 115 million of them — without naming any.

FISA is not only unconstitutional because of its defiance of the Fourth Amendment but also extraconstitutional, because it sets up governmental procedures and even a government court that operate outside the Constitution.

Because it is so much easier to get a FISA search warrant than it is to get a search warrant based on probable cause, many FBI agents cannot resist the temptation to portray their mission as an intelligence one rather than a law enforcement one and get a warrant from the FISA court instead of one from a federal court that follows the Fourth Amendment.

FISA court records are so secret that the judges on the court cannot access them. The judges surrender their mobile phones and all writing materials when they enter their courthouse in D.C. and are frisked when they leave. No transcripts of courtroom dialogue are kept.

I have criticized FISA court judges by characterizing them as clerks. Indeed, any court that grants 99.97 percent of warrant applications, that does not require probable cause of criminal activity as a basis for a warrant and that does not comply with the specificity requirements of the Fourth Amendment is not a court of thinking, liberty-protecting judges faithful to the Constitution. It is a gaggle of clerks.

Much of what the FISA court sees is raw intelligence — transcripts of conversations and personal data such as health, legal and financial records intercepted by intelligence agents. In some cases, the court sees boring nonsense. In some cases, it sees data that agents have risked their lives to obtain.

The president needs to know that the revelation of raw intelligence data — which would be portrayed in the media as being revealed for personal or political gain — would strike at the heart of the work of some in the intelligence community and that they might strike back.

The president also needs to be reminded of his oath to uphold the Constitution — which includes the rule of law. The United States is the freest and most prosperous country in history. But without the rule of law and its respect for constitutional fidelity, personal liberty, private property and legal norms, the U.S. would be just a beautiful piece of real estate.

Copyright 2018 Andrew P. Napolitano.

Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump, FISA 
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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