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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Copyright 2019 Andrew P. Napolitano. Distributed by

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Copyright 2019 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Donald Trump, FBI, Russiagate 
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When Donald Trump was looking for a catchy phrase during his 2016 presidential campaign to address the issue of immigrants entering the United States unlawfully — a line that would resonate with his supporters — he came up with the phrase “build the wall.” The reference, of course, is to what Trump advertised would be a 30-foot-tall, thousand-mile-long Mexico-financed physical wall along our border with Mexico.

At first, most folks seemed to dismiss this a pie in the sky. Why would the government of a foreign country pay for a wall in the United States built so as to keep its own citizens and residents from entering the United States? The answer: It wouldn’t.

So President Trump changed his argument that Mexico would pay directly for his wall by arguing instead that the $5.7 billion down payment he wants — on a $25 billion to $30 billion project — would indirectly pay for itself in reduced government welfare and law enforcement expenses. The idea of the wall never took hold during the first two years of his presidency, when the Republicans controlled both houses of Congress.

Even Republicans were leery of the cost and the imagery. The federal government is running about $1 trillion a year in the red, and Republicans are looking to offer comfort in their party to Hispanics. Adding to that debt to build a wall that would affront other Hispanics did not rest well with them. Until now.

Now that the Democrats control the House of Representatives, where the idea of a wall is dead on arrival, it is easier for House Republicans to argue in favor of it. Because the Democrats numerically outnumber them, the House Republicans won’t be forced to vote on it. The president is probably kicking himself for not calling in a few favors and addressing the wall before the Democrats took control of the House.

So, faced with intractable opposition in the House and only lukewarm, mainly symbolic support in the Senate, Trump has threatened to bypass Congress, declare a national state of emergency and build the wall on his own. Can he legally do this? In a word: No.

Here is the back story.

The Constitution is the supreme law of the land. Everyone who works in government takes a public oath of fidelity to the Constitution; that means to its very words and to the values that those words represent. All federal powers come from the Constitution — and from no other source. The states formed the federal government and limited its powers when they ratified the Constitution. These are all basic truisms of American government, yet we have veered so far from them that they bear repeating.

Now, back to the president’s wall. President Trump has no power to build a wall or a fence or a doghouse on private property without an express or implied congressional authorization to do so. The vast majority of the property in Texas on which he wants to build is private, according to Rep. Will Hurd, R-Texas, whose district contains a longer stretch of the border than anyone else’s.

Thus, the federal government must use eminent domain, which gives each landowner the right to a trial to challenge the government as to the worth of the property the government wants. Rep. Hurd, a former CIA agent and conservative Republican who opposes the wall, has articulated the views of most of his 800,000 constituents: Not in my backyard.

We know from the plain wording of the Constitution and from history that all expenditures of money from the federal treasury and all federal use of private property must first be approved by Congress. In 1952, the Supreme Court ruled on this when President Harry Truman seized American steel mills during a labor strike and directed the secretary of commerce to hire folks to operate the mills, pursuant to his own emergency declaration that steel was vital to the war effort in Korea. The court held that only Congress could authorize the seizure or adverse government occupancy of private property and the expenditure of money needed to operate the mills.

Then, in 1976, Congress provided a definition — which, shortly thereafter, the courts refined — of a national emergency: the existence of events truly beyond the ordinary, wherein there is a palpable and immediate threat to lives, safety or property that cannot be addressed by the employment of ordinary government assets or the exercise of ordinary governmental powers. That is hardly the case today with the former Central American caravan in Mexico now settled in and housed by the Mexican government away from the border.

Nevertheless, the 1976 law requires that all ordinary assets — our president prefers the military — be determined useless before a lawful emergency can come into effect. The military useless in an emergency? And if this is such an emergency, why did the president wait until it abated before addressing it?

Perhaps the answer is that his frustration with the Democratic House has reached a boiling point, but that boiling point cannot be a basis for a declaration of a national emergency. A valid emergency declaration streamlines the government to address the emergency, but it cannot authorize anything that the Constitution prohibits, nor can it authorize the president to avoid anything that the Constitution requires.

The president has sworn not only fidelity to the Constitution but also to take care that federal laws be enforced. If he could disregard that oath, if he could ignore those laws, if he could spend money not authorized by Congress, if he could occupy private property not subject to eminent domain against the will of the owners — in short, if he could make the laws, as well as enforce them, then he would not be a president. He’d be a monarch.

Copyright 2019 Andrew P. Napolitano. Distributed by

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1) On Jan. 1, 2020, Donald Trump will be
a. fighting an indictment for fraud.
b. fighting impeachment proceedings.
c. running for re-election.
d. no longer president.

2) In 2019, the House Democrats will
a. drive Trump crazy with subpoenas and investigations.
b. finally get their hands on Trump’s tax returns.
c. try to make it more difficult to own a gun.
d. collectively agree to keep the government within the confines of the Constitution.

3) On Jan. 1, 2020,
a. the Dow Jones industrial average will be 5,000 points below where it was on Dec. 1, 2018.
b. the debt of the federal government will be in excess of $24 trillion.
c. the Federal Reserve will have continued to keep interest rates artificially low.
d. the United States will be in a major recession that will dwarf the housing crisis of 2008.

4) On Jan. 1, 2020,
a. Trump will have endured the mass resignation of his entire Cabinet.
b. Joe Biden will be leading the Democratic field for his party’s presidential nomination.
c. Biden will be leading Trump in opinion polls.
d. Hillary Clinton will have tossed her hat in the ring.

5) On Jan. 1, 2020, Bill and Hillary Clinton will
a. be bankrupt.
b. be divorced.
c. have had another grandchild.
d. be gone from the public scene.

6) In 2019,
a. the New England Patriots will be caught in another cheating scandal.
b. Tom Brady will be traded to the New York Giants.
c. the Yankees will not make the MLB playoffs.
d. the LA Dodgers will be bankrupt.

7) In 2019, Chris Christie will
a. be named secretary of homeland security.
b. renounce his love of the Cowboys and become a water boy for the Jets.
c. finally begin sumo wrestling.
d. lose 150 pounds.

8) In 2019, Kim Kardashian will be
a. the wealthiest woman in Hollywood.
b. running for the Senate in California.
c. secretly dating Justin Bieber.
d. utterly unheard from.

9) In 2019,
a. Gronk will quit the Patriots and join the Eagles.
b. Refrigerator Perry will make a comeback with the Bears.
c. the Giants will demolish the Eagles twice, by a combined score of 88-3.
d. Gronk will be caught with the Bieb again at a West Village dance club.

10) In 2019,
a. the U.S. military will be actively fighting in North Korea.
b. Trump will use intelligence assets to fight a war and deny it when caught by the House Democrats.
c. a massive number of military officers will refuse a loyalty oath to Trump.
d. the Pentagon will finally admit it is wasting billions of taxpayer dollars annually.

11) In 2019, Trump will
a. put his last name in gold letters on the front portico of the White House.
b. use the military to shut down The New York Times and CNN.
c. have a public spat with Fox News.
d. do none of the above.

12) On Jan. 1, 2020, retired Lt. Gen. Michael Flynn will be
a. in prison.
b. Trump’s national security adviser.
c. earning $100,000 per speech.
d. enjoying the fruits of a Trump pardon.

13) In 2019, Trump will
a. pardon his children.
b. pardon his son-in-law.
c. pardon himself.
d. pardon Bob Mueller and then fire him.

14) By the end of 2019,
a. Hollywood movies will all be available on smartphones.
b. there will be no movie theaters as we know them.
c. all cable television will be available on smartphones and computers.
d. none of the above will have happened.

15) During 2019,
a. the sports world will be rocked by drug scandals involving sports icons.
b. Congress will legalize recreational drugs over a veto by Trump.
c. Trump will accuse House Speaker Nancy Pelosi of being a druggie.
d. Congress will vote to repave Interstate 80 from New Jersey to California.

16) By January 2020,
a. the U.S. will have more troops fighting in Yemen and Afghanistan than we did in December 2018.
b. the U.S. will have more troops at the U.S.-Mexico border than it will have in Afghanistan.
c. the U.S. will have continued to maintain the 800-plus military installations it owns or occupies throughout the world.
d. Pentagon generals will publicly resist President Trump’s orders to beef up all military deployments.

17) During 2019,
a. the Federal Reserve will aggressively regulate banks and keep them from making market-based choices.
b. about 25 percent of banks in existence in December 2018 will have failed.
c. President Trump will fire Jerome Powell, the chairman of the Federal Reserve.
d. none of the above will happen.

18) On Jan. 1, 2020, President Trump’s proposed wall along the U.S.-Mexico border will
a. not have been built because folks fear that it could keep them from leaving the U.S.
b. not have been built because the Democrats refuse the imagery of a wall controlling the movement of free people.
c. not have been built because the federal government needs to condemn the properties on which Trump wants the wall and most of the owners of those properties are conservative ranchers.
d. not have been built because Mexico will not pay for it, directly or indirectly.

19) On Jan. 1, 2020, politics in America will be
a. as toxic as they have been throughout 2018.
b. more bitter and divisive than they have been throughout 2018.
c. sobered because of the onset of financial collapse.
d. none of the above.

20) In the long run,
a. everything the government has it has stolen.
b. everything the government says is a lie.
c. that government is best which governs least.
d. all of the above are true.

My choices are 1c, 2c, 3c, 4b, 5d, 6c, 7a, 8b, 9c, 10b, 11d, 12c, 13a, 14d, 15a, 16b, 17d, 18c, 19b, 20d.
Happy new year.

Copyright 2019 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Donald Trump 
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What if Christmas is a core value of belief in a personal God who lived among us and His freely given promise of eternal salvation that no believer should reject or apologize for? What if Christmas is the rebirth of Christ in the hearts of all believers? What if Christmas is the potential rebirth of Christ in every heart that will have Him, whether a believer or not?

What if Jesus Christ was born about 2,000 years ago in Bethlehem? What if He is true God and true man? What if this is a mystery and a miracle? What if this came about as part of God’s plan for the salvation of all people? What if Jesus was sent into the world to atone for our sins by offering Himself as a sacrifice? What if He was sinless? What if His life was the most critical turning point in human history? What if the reason we live is that He died?

What if after He died, He rose from the dead? What if He was murdered by the government because it feared a revolt if it did not murder Him? What if the government thought He was crazy when He said He is a king but His kingdom is not of this world? What if He was not crazy but divine? What if when He said that He could forgive sins, He was referring to Himself as God?

What if He is one of the three parts of a triune God? What if this is an inexplicable mystery? What if there is no power without mystery? What if the power He possessed, He exercised only for the good? What if He truly gave sight to the blind, hearing to the deaf, musculature to the lame, hope to the disillusioned, courage to the weak and even life to the dead?

What if He freely did these things but sought no acclamation for them? What if after each of these miracles, He disappeared into the temple precincts or walked well past the crowd, lest the crowd hail him as a temporal or secular leader?

What if there was in that towering personality a deep thread of shyness? What if He was shy about His Godness? What if He was shy about His goodness? What if He loved saving us? What if He was joyful but did not want us to see His joy?

What if He knew all along how profoundly untimely and utterly painful the end of His life on earth would be but He neither feared nor avoided it? What if His greatest display of love was self-restraint on the Cross?

What if most of the world that He came to save has rejected Him? What if He still loves those who have rejected Him? What if He still offers them salvation? What if His offer is real and forever?

What if many folks today have rejected the true God for government-as-god? What if the government-as-god has set itself up as providing for all secular needs in return for fidelity to it? What if this seductive offer has been accepted by millions in America?

What if the acceptance of this seductive offer of government-as-god has ruined individual initiative, destroyed personal work ethic, fostered cancerous laziness, enhanced deep poverty and impelled thoughtless obedience to government in those who have accepted it? What if the defiance inherent in the belief of government-as-god chills the exercise of personal freedoms for fear of the loss of the government’s munificence? What if government charity is really munificence with money it has taken from those who work and earn it? What if it’s then given to those who don’t? What if it is impossible to be truly charitable with someone else’s money?

What if Jesus came to set us free from the yoke of government oppression and the chains of personal sin? What if freedom is our birthright, given to us by the true God, not by the government-as-god? What if the true God made us in His own image and likeness? What if the most similar likeness between us mortals and the true God is freedom? What if just as God is perfectly free, so are we perfectly free? What if we have failed to preserve freedom and have permitted governments to take it from us? What if we are not full people without full freedom?

What if the world was full of darkness before He came into it? What if there is darkness still today but yet much light? What if we recognize that He is the Light of the World? What if Christmas is the birthday of the Son of God and the Son of Mary? What if we recognize the presence of the Son of God and the Son of Mary in our hearts and among us? What if the God-as-baby whose birthday we celebrate is the Savior of the World? What if we don’t mask this but live it?

What if we say with our hearts and mean with our words — Merry Christmas?

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Christmas 
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It seems that every time we look at the legal maneuverings that reflect upon President Donald Trump, the allegations of unlawful behavior by him add up. We know that two teams of federal prosecutors are examining his pre-presidential and his in-office behavior.

Special counsel Robert Mueller is investigating whether Trump and his campaign reached an agreement with any foreign nationals — particularly Russians — to receive anything of value and whether he obstructed justice by trying to shut down an FBI investigation of his first national security adviser, retired Lt. Gen. Michael Flynn. And federal prosecutors in Manhattan are looking at bank fraud and campaign financing fraud.

The receipt by a campaign for federal office of anything of value from a foreign national is a criminal act, as is an agreement to receive the thing of value from a foreign national, whether or not it arrives. As is the case with nearly all federal crimes, one can be prosecuted for committing the crime itself or, when others are involved, for conspiring to commit the crime or for attempting to commit it.

The career federal prosecutors in New York have told a federal judge that they have evidence that Trump conspired with Michael Cohen, his former lawyer, and David Pecker, his former friend who owns the National Enquirer, to violate campaign finance laws. They have also told the judge that Trump orchestrated Cohen’s crimes and paid Cohen to commit them. The prosecutors know that he who pays for crimes can be as criminally liable as he who accepts the payment and commits the crimes.

What were the crimes? They consisted in hiding illegal campaign receipts and expenses from federal regulators and deceiving them. The receipts were corporate donations — prohibited under federal law. The expenses were payments made to two women who claim to have been paramours of Trump’s — claims he has repeatedly denied — in return for their silence in the fall of 2016, all done to benefit Trump’s presidential campaign.

Had these receipts and payments been innocent mistakes or clerical errors, they could have been addressed with fines and returning the money — about $350,000 — to the donors. They became criminal because the donations were part of an elaborate scheme of cooked books and phony invoices to deceive federal regulators, and they resulted in the Trump campaign’s filing false reports to the feds. All of this was done, according to federal prosecutors, knowingly and intentionally pursuant to a conspiracy among Trump, Cohen and Pecker.

What became of the conspirators? Cohen infamously pleaded guilty to this and other crimes and was sentenced to three years in a federal prison. When Trump learned that his former lawyer had been debriefed by the FBI for 70 hours, Trump called him a “rat.” Pecker received a form of immunity from prosecution in return for his testimony to federal prosecutors and to a federal grand jury about Trump and Cohen.

It is highly unusual for federal prosecutors to characterize a person who is not a defendant in their case as the orchestrator and paymaster of the crimes they are prosecuting, unless they intend to charge that person. Such a person — here, the president — is often referred to as an “unindicted co-conspirator.”

Can Trump be charged with these crimes? Has he been, in a sealed indictment? The Department of Justice has three modern-day legal opinions on the subject of charging a president. Two of them say that a president cannot be charged with a crime while in office, and one says that a president can be charged.

All three opinions counsel that if a statute of limitations — the period of time after the crime has been committed and during which a prosecution must be commenced or waived — is about to expire, the president may need to be indicted in secret, so as to preserve the government’s ability to prosecute him for his crimes after he leaves office yet also preserve the president’s ability to conduct the duties of his office unimpeded by the burdens of a criminal prosecution.
The statute of limitations in this case is five years. The conspiracy took place in 2016. The math for Trump is daunting.

Why should you care about this? The president is the chief federal law enforcement officer in the land. He has sworn an oath to enforce all laws faithfully. If he is a lawbreaker himself, he violates his oath, making it difficult for the legal, judicial and law enforcement communities to take his enforcement decisions seriously.

This week, Flynn was due to be sentenced for lying to the FBI. (His sentencing was postponed.) Though it may appear at first to have been a little white lie and though the FBI no doubt knew it was a lie at the time Flynn articulated it, it turns out that Flynn was also a paid foreign agent for Turkey — a spy, if you will, for an ally we currently have a strained relationship with — while working in the Trump campaign. Had U.S. District Judge Emmet Sullivan not skeptically approached the sentencing of Flynn, we might not know any of this. Did Donald Trump know any of this when he hired Michael Flynn?

The rule of law in America is what keeps us free from tyranny. The rule of law — which the president has sworn his solemn oath to support — means that no one is above the law’s requirements or below its protections. It also means that those who make law enforcement decisions have a public commitment to obeying the law.

Short of that, we don’t have the rule of law. We have the rule of whoever is temporarily at the top of the heap.

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Donald Trump, Robert Mueller 
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Last week, federal prosecutors in Washington and New York filed sentencing memorandums with federal judges in advance of the sentencings of Paul Manafort and Michael Cohen. President Donald Trump’s former campaign manager and his former personal lawyer had pleaded guilty to federal crimes, and the memorandums, which are required by the federal rules of criminal procedure, set forth the prosecutors’ desired prison sentences for them.

Judges rely on these submissions, as well as on those of defense counsel, before making the mathematical calculations that the law requires. Sadly, sentencing today is largely an algorithmic function, dictated by federal sentencing guidelines, with some room for judicial deviation based on the facts of the crimes and the personal backgrounds of the defendants. In my career as a judge in New Jersey, I sentenced more than 1,000 people using state guidelines that were substantially similar to the present federal guidelines.

When the federal prosecutors made their submissions for the most part public, they revealed two disturbing facts. Special counsel Robert Mueller in Washington revealed that in the government’s view, Manafort had reneged on his plea

agreement by lying to FBI agents who were sent to debrief him about his contacts with the White House. And federal prosecutors in the U.S. District Court for the Southern District of New York revealed that some of Cohen’s crimes had been committed with the knowledge of and at the direction of Trump or to shield him.

Then all hell broke loose. Here is the back story.

Manafort, who has been convicted of federal financial crimes in Virginia, opted to avoid a second trial in Washington, D.C., on another set of alleged federal crimes by pleading guilty and agreeing to cooperate with the special counsel’s office by truthfully telling its FBI agents what they sought to learn about ongoing investigations of President Trump.

The FBI agents wanted to know whether Manafort knew whether Trump committed any federal crimes — such as conspiracy (namely, agreeing to receive foreign assistance during his campaign), obstruction of justice (interfering with the FBI in order to keep it from investigating him) and bank and tax fraud before he was president.

When the special counsel announced that Manafort had declined to be truthful to its FBI agents and Manafort’s lawyers claimed he had been truthful, that conflict set up a dispute that must be resolved by a federal judge — after a public hearing — before she can sentence Manafort. That hearing will most likely reveal what prosecutors wanted to learn about Trump and what they claim Manafort lied about. Even though the hearing — which has not been held as of this writing — could be explosive about Trump, the president claimed he was exonerated by this turn of events.

At the same time, career prosecutors in New York — whose chief, a Trump appointee, has removed himself from the case — asked a federal judge to sentence Cohen to substantial prison time for the crimes to which he pleaded guilty,

notwithstanding the substantial assistance he had provided them in their investigations of the president. Of the president? Yes. The feds in New York City, as well as the special counsel in Washington, are investigating the president? Yes.

How do we know this? We know that Cohen pleaded guilty to tax evasion, bank fraud, lying to Congress and campaign finance violations. According to the submission of the special counsel, Cohen lied to Congress — about candidate Trump’s efforts to build a hotel in Moscow by cutting a deal with Russian President Vladimir Putin during the presidential campaign — to protect the president, who had publicly denied any campaign-time communications with Russians.

But the most damning thing we learned from the submission of the New York federal prosecutors was that they have evidence that Cohen’s deceptive and criminal payments of hush money to women alleging to have experienced sexual intimacy with Trump before he was an active candidate were made “in coordination with and at the direction of” the president.

Prosecutors in the Southern District of New York enjoy the highest reputation for excellence in the legal, judicial and law enforcement communities. They know that they cannot ethically make a charge in federal court without corroborated evidence to support it. In their Cohen sentencing memorandum, they chose to reveal the existence, but not the substance, of their evidence against the president.

Think about the significance of this. The Department of Justice has accused President Trump of coordinating with, ordering and paying Cohen to commit a federal crime for which Cohen has pleaded guilty. Stated differently, career federal prosecutors who are not in the office of special counsel Mueller have told a federal judge that they have corroborated evidence that the president committed felonies.

Let’s be clear. If A pays B to shoot someone and B does the shooting, A is as criminally liable as he would be if he had pulled the trigger.

Nevertheless, when the president learned of all this, the revelation of which had been authorized by his chosen but unconfirmed acting attorney general, he claimed that this submission, too, exonerated him. I was sorry to learn that.

These submissions place the president directly in the legal crosshairs of federal prosecutors — closer to knowing about a campaign-time agreement for something of value with Russians than we have heretofore been. And they show a more direct procurer of criminal behavior than we have heretofore had.

The president may want the public to think that none of this troubles him. Yet the evidence of the falsity of his publicly denied proximity to Putin during the campaign and the possession of evidence by the Department of Justice of his pre-presidential criminal behavior are gravely serious, and he cannot reasonably pretend that they are not.

He can try to avoid reality, to paraphrase Ayn Rand, but he cannot avoid the consequences of avoiding reality. Those consequences may be fatal to his presidency and to his liberty.

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Donald Trump, Robert Mueller 
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The nation has paused this week from its toxic political battles to remember the kindness and gentleness of President George H.W. Bush. He was kind to Bill Clinton, who defeated him in 1992, and to Ross Perot, whose unusual entry into the presidential race that year siphoned conservative voters away from Bush and enabled Clinton to amass a majority of electoral votes with only 43 percent of the popular vote. The Bush I knew was the post-presidential one, who, by all appearances, harbored no bitterness or sense of defeat.

That was the consistent theme running through nearly all the reminiscences we have heard since he died late last week. Those comments about Bush’s character are, of course, being contrasted with the more in-your-face president we have today. To his credit, President Donald Trump has kept a low profile since Bush’s death, in all areas but one. He continues to pound away at his view that the investigation of him and his campaign by Department of Justice special counsel Robert Mueller is a hoax and a witch hunt.

To further that view, the president has dispatched his lawyer Rudolph Giuliani to make essentially two arguments. First is that Mueller’s work is a solution looking for a problem and that because there has been no crime, we don’t need a special counsel to investigate. This is a common refrain from criminal defense lawyers who represent public figures being investigated outside the normal DOJ channels. Giuliani’s second argument is that Mueller knows he has discovered no crime and will soon close up his shop.

I am not of the view that Mueller is on a fishing expedition or is about to go home. First, he has a few dozen defendants whom he has indicted and needs to try — even though most are Russians indicted for hacking and interfering with the 2016 election campaign and will be tried in absentia.

Second, he keeps acquiring new evidence. Last week, when Trump’s former personal lawyer Michael Cohen pleaded guilty in federal court in Manhattan to lying to Congress about Trump’s negotiations with Russian authorities during the 2016 presidential campaign to build Trump Tower Moscow, Cohen claimed he lied so as to further Trump’s political message, which has been one of zero relationships with Russian officials during the campaign.

Yet the most important words Cohen uttered were not those stated during his 10-minute guilty plea but those stated to Mueller’s FBI agents and prosecutors during the 70 hours that they interrogated him. Whatever he told them and they were able to corroborate, they caused his prison exposure to be reduced from somewhere between 15 and 60 years to six months. Such a reduction requires a substantial quid pro quo. What was it?

The third reason for rejecting the belief that Mueller will soon shut down is Mueller’s declaration to a federal judge in Washington last week that Paul Manafort, Trump’s campaign manager during the time the Trump campaign had 87 communications with Russians, lied to FBI agents in defiance of his commitment to be truthful to them made during his guilty plea in federal court in September. Mueller will no doubt seek to indict Manafort for each of those lies and then try him — a trial that could not occur until mid-2019.

As if all that were not enough to dispel the Giuliani-fueled myth that Mueller will soon end his work, recall that Mueller has repeatedly expressed a desire to interrogate the president in a one-on-one interview or before one of his grand juries. Neither has occurred. Mueller has a toolbox of techniques to bring either of these about, and he has yet to employ the most potent contents.

Rudy Giuliani is a very talented lawyer. He has assumed two roles for his most famous client — as legal strategist and as cheerleader. As a legal strategist, he brings a wealth of experience in federal criminal procedure, but he has no serious experience defending a person accused by the feds — hence his morphing into the cheerleading role, in which he has candidly acknowledged to friends that his goal is not to dissuade the special counsel from pursuing his client but to influence public opinion so that if an indictment or impeachment of Trump were to come down, it would generally be unacceptable to the public.

Yet the more he cheerleads the more he undercuts his reputation in the legal, judicial and law enforcement communities. That’s because when he was the U.S. attorney in Manhattan, he excelled at utilizing the most extreme and aggressive prosecutorial techniques that the courts permitted — the very ones he is now attacking Mueller for using.

In the 1980s, Giuliani dispatched FBI agents to arrest corporate chieftains with television crews in tow. He burst into courtrooms, interrupting trials, to serve lawyers with subpoenas while they were trying other cases. He even wired a 10-year-old girl with a tape recorder and tutored her to entrap her mother in a drug case. He once arrested every person who was in New York’s Washington Square Park on a weekday afternoon during a drug sweep — innocent and guilty alike. He got away with it.

Federal criminal prosecution is not beanbag. The courts have ruled many times that prosecutors, FBI agents and police may lie, cheat, threaten, intimidate, coerce and deceive to extract cooperation and obtain evidence from witnesses. This is the dark side of the criminal justice system. It requires a strong stomach. It can be used against even the president.

Yet those untried absent Russians — the ones scooped up in Mueller’s witch hunt — were punished without trial. They were barred from using U.S. financial institutions by President Trump in retaliation for their alleged interference in the 2016 election. A witch hunt for me, but not for thee.

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Donald Trump, Robert Mueller, Russia 
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When Donald Trump became president, he swore an oath to uphold the Constitution and enforce federal laws “faithfully.” James Madison, who was the scrivener at the Constitutional Convention, insisted on using the word “faithfully” in the presidential oath and including the oath in the body of the Constitution because he knew that presidents would face the temptation to disregard laws they dislike.

The employment of the word “faithfully” in the presidential oath is an unambiguous reminder to presidents that they must enforce federal laws as they are written, not as presidents may wish them to be. Earlier this month, Trump succumbed to Madison’s feared temptation, and last week, a federal judge corrected him. Then an uproar ensued.

Here is the back story.

Federal immigration laws, as well as treaties to which the United States is a party, require that foreigners who are seeking asylum here may enter the United States across any border they can reach, whether at a designated portal or not. If they have not entered through a designated portal, they can be brought, without a warrant, to a portal for processing.

The feds must process all asylum applications from migrants who make prima-facie cases for asylum. Once an application has been made, the feds may release the migrant (as President Barack Obama did) into the general population, or they may detain the migrant (as President Trump has done), pending a trial before a federal immigration judge.

At the trial, the migrant has the burden of proving worthiness for asylum. That worthiness can be based only on government animosity toward the migrant or government failure to protect human rights and enforce property rights in the home country. If the migrant prevails at trial, asylum is granted, and a green card is issued. If not, deportation follows.

On Nov. 9, President Trump issued a proclamation directing the Border Patrol to deny entry to all migrants, including those with legitimate asylum claims, unless they come through government portals where Border Patrol personnel are present to address their applications. Though this sounds reasonable, it directly contradicts federal law, which expressly permits migrants to enter the U.S. anywhere.

When groups of migrants challenged Trump’s order in federal court in San Francisco, Judge Jon Tigar prevented the government from complying with the president’s proclamation. The judge did not make any value judgments, nor was he critical of the president’s motivation. Rather, he ruled that the law is clear: Immigrants seeking asylum may enter anywhere, and the president cannot change federal law; only Congress can.

Trump dismissed Judge Tigar’s ruling as meritless because the judge was appointed to the bench by former President Obama. The implication in Trump’s words was that Judge Tigar ruled against him for political reasons. In reality, Judge Tigar did what any judge would do; he prevented the president from changing federal law and required him to enforce the immigration laws as Congress has written them — and to do so faithfully.

Trump should not be surprised when judges rule against him when he takes the law into his own hands. He cannot close the border without an act of Congress and a lawful withdrawal from two treaties. He cannot refuse to accept asylum-seekers based on where they enter. He cannot use the military to enforce immigration laws — his own secretary of defense called this a “stunt” — without violating other federal laws.

Judge Tigar did not necessarily inject his personal ideology into his ruling (any more than the “Trump judge” who ruled for CNN and against the president did last week); he merely applied long-standing federal law. There is no room for ideology at the trial level. I know that personally from my own experience as a trial judge in New Jersey.

Shortly after Trump publicly blasted Judge Tigar, Chief Justice John Roberts came publicly to Tigar’s defense. The chief justice announced that there are no Obama or Trump or Bush or Clinton judges, just hardworking defenders of the Constitution. That comment was met by two more from Trump, who disputed it directly.

Who is correct?

There is no question that many federal judges are nominated by presidents because of shared views on public policy. But though this is ordinarily the case for appellate judges and, in the modern era, is always the case for Supreme Court justices, it is rarely the case for trial judges, of which Judge Tigar is one.

Trial judges do not make public policy. They apply statutes as written by Congress, pursuant to precedent as set forth by the Supreme Court and the intermediate appellate court to which they are subject.

Yet we know that there is a kernel of truth in the president’s accusation and that there is a kernel of tongue in cheek in the chief justice’s contention. Surely, Justice Ruth Bader Ginsburg would view Judge Tigar’s ruling more favorably than Justice Samuel Alito would. Ginsburg, a Clinton appointee, would probably interpret the law literally, and Alito, a George W. Bush appointee, would probably give the president some wiggle room.

Yet the spectacle of the president and the chief justice disputing constitutional values is not a happy one. Here’s why. Under the Constitution, the three branches of the federal government — legislative, executive and judicial — are equals. Yet the judiciary has the final say on the meaning of the Constitution and the laws. The judicial branch is anti-democratic. Federal judges shouldn’t care what the public thinks. Their job is to apply the Constitution and interpret federal laws as they have been written, come what may.

For these reasons, federal judges and justices have life tenure. They do not need and should not seek public approval. And they should not enter public disputes — other than by their judicial rulings — for by doing so, they can appear as political as those in the other two branches.

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Donald Trump, Immigration, Supreme Court 
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What if the government’s true goal is to perpetuate itself? What if the real levers of governmental power are pulled by agents and diplomats and by bureaucrats and central bankers behind the scenes? What if they stay in power no matter who is elected president or which political party controls either house of Congress?

What if the frequent public displays of adversity between the Republicans and the Democrats are just a facade and a charade? What if both major political parties agree on the transcendental issues of our day?

What if the leadership of both major political parties believes that our rights are not natural to our humanity but instead are gifts from the government? What if those leaders believe that the government that gives gifts to the people can take those gifts back?

What if the leadership of both parties gives only lip service to Thomas Jefferson’s assertions in the Declaration of Independence that all humans “are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness” and that the purpose of government is not to redistribute wealth but to protect these rights? What if the leadership of both parties dismisses those ideas as just Jefferson’s outdated musings? What if Jefferson’s words have been enacted in the federal laws that all in government have sworn to uphold?

What if the leadership of the parties believes that the constitutional requirement of due process somehow permits mothers to hire doctors to kill the babies in their wombs out of fear or convenience? What if the leaders of both political parties believe that the president should be able to kill any foreigner he wants out of fear, because due process is an inconvenience?

What if President Donald Trump has used high-tech drones to kill foreign people in foreign lands and claimed that he has done so legally, relying not on a declaration of war from Congress but on the convenient arguments of former

President Barack Obama’s attorney general, who falsely told Obama his killings were consistent with due process?

What if the Constitution requires a congressional declaration of war or due process whenever the government wants someone’s life, liberty or property, whether convenient or not and whether American or not? What if due process means a fair jury trial, not an extrajudicial secret killing?

What if the congressional leadership and most of the membership in Congress from both major political parties believe in perpetual war and perpetual debt? What if the history of American government in the past 100 years is proof of this nearly universal belief among the political class?

What if the political class believes that war is the health of the state? What if the leadership of that class wants war so as to induce the loyalty of its base, open the pocketbooks of the taxpayers and gain the compliance of the voters? What if the political class uses war to enrich its benefactors? What if the government has been paying for war by increasing its debt?

What if the political class has been paying for prosperity by increasing the government’s debt? What if that class has controlled the cash-creating computers at the Federal Reserve and the free cash the Fed creates is to bankers and traders what heroin is to addicts?

What if the $21.7 trillion current federal government debt has largely been caused by borrowing to pay for wars and false prosperity? What if 22 cents of every tax dollar collected by the feds today is spent on interest payments for the government’s debt? What if, at this rate, in seven years the federal government will pay more annually to debt service than it will to fund the Pentagon?

What if American taxpayers are still paying interest on debts incurred by Woodrow Wilson, FDR, JFK, LBJ, Ronald Reagan and every modern president?

What if the banks have borrowed the money that they lend? What if they can’t pay it back? What if the stock market is soaring on borrowed money? What if mansions and office buildings are popping up but they will soon secure more debt than they are worth? What happens when the plug is pulled on this temporary artifice and those debts come due?

What if the government demands transparency from all of us but declines to be transparent to us? What if the government fosters the make-believe notion that it exists to serve us? What if government leaders assert that they work for us but recognize silently that we work for the government? What if the federal government has access to all of our communications, bank accounts, health and legal records, and utility and credit card bills? What if the government knows more about us than we know about it?

What if the government stays in power by bribing the states with cash grants, the rich with corporate bailouts, the middle class with periodic tax cuts and the poor with reliable welfare? What if the courts have approved this bribery?

What if we live today in an inversion? What if the government the Founding Fathers gave us needed our permission to do nearly everything? What if today we need the government’s permission to do nearly anything?

What if, on Thanksgiving Day, our gratitude is not to the government that mocks our freedoms and steals our wealth but to God, who gave us our freedoms and our ability to reason? What if, on Thanksgiving Day, our gratitude is for life, liberty and the pursuit of happiness? What if these are integral to our humanity despite the government assault on them?

What if, on Thanksgiving Day, we should be most grateful that we are free creatures made in God’s image and likeness? What if we are so free we can reject the government?

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Constitutional Theory 
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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