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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 
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Last week, I was intrigued by all the fanfare attendant upon the national farewell to the late Sen. John McCain. I have written in this space that McCain and I were friends who spoke many times, but generally only about the issues upon which we agreed — abortion, immigration and torture.

On those issues, he often stood at odds with most of his Republican colleagues in the Senate. They are opposed to abortion in name only (they will not lift a finger to stop or slow it), prefer judging the moral worth of individuals on the basis of where they were born, and think that torture is wrong unless the victim is a bad guy or a foreigner or has information the government wants.
Moral relativism is the coin of their realm.
On those issues, McCain stood steadfast, no matter the political or personal consequences. For that steadfastness, and with respect to those issues, his behavior was heroic. A hero does not lack fear. He or she proceeds into its face nevertheless, heedless of the consequences to self.

For reasons he has never adequately explained, President Donald Trump rejected McCain’s heroism and mocked McCain’s time of torment in a North Vietnamese prison. That mockery was brought to full measure at McCain’s funeral by the senator’s daughter, my friend and former Fox News colleague Meghan McCain. She told the members of the Washington establishment who had gathered, sans the president, at her father’s funeral at the Washington National Cathedral — why the federal government founded a cathedral is another question for another time — that her father manifested greatness and that Trump manifests cheapness.

Then the two men who each in his own way personally stopped McCain’s efforts to become president — George W. Bush in the Republican primaries in 2000 and Barack Obama in the general election in 2008 — delivered similar accolades of McCain, complete with veiled rebukes of Trump.

On its face, the audience in that government-founded church, establishment to the core, was adoring McCain’s memory and mourning his loss. But the establishment is filled with hypocrites.

This is the same establishment that gave us the unguarded borders and airways of 9/11 and blamed its failures on foreigners. It gave us the useless, fruitless wars in Iraq and Afghanistan and the human and monumental destruction they wrought.

It gave us the secret torture of foreign captives and their indefinite incarceration without trial. It gave us warrantless spying on innocent Americans — at first in secret and then openly and under color of law — in direct defiance of the Fourth Amendment. It gave us the 2008 financial crisis, which it cured by borrowing billions of dollars and giving the money to those who had caused it. And — as if all that were not enough — it gave us a $13.5 trillion collective increase in government debt during the Bush and Obama years and the secret but repetitive use of drones to assassinate foreigners and Americans overseas.

Has any of this enhanced your life, liberty or property?

As much as I appreciated the kind words about my late friend and the polite reception those words received, it made me think about how dangerous to life, liberty and property the government has become, how unfaithful to the Constitution have been those in whose hands we have reposed it for safekeeping and how unashamed of their misdeeds are those who have caused all this.

Nearly all of the present assaults to liberty can be laid at the feet of the Republicans and Democrats who were sitting in that government-founded church in the nation’s capital and listening to the praise of John McCain.

But that establishment crowd also gave us another event it would rather forget and for which it will never accept blame or claim credit — the election of Donald J. Trump as president of the United States. He ran as the anti-establishment candidate, and he ran against the collective mindset of those proud of themselves in that “national” church. He condemned the wars they caused. He mocked their borrowing and spending. He attacked the secretive mindset of their intelligence and law enforcement communities. And the voters rewarded him.

Yet he, too, uses drones and missiles to kill and does so in foreign lands without any declarations of war. He, too, has borrowed money and spent it at nearly a wartime rate. And he, too, has continued the spying on innocent Americans. In those respects, he has become what he condemned — the government establishment proud of itself sitting in a government-founded church.

Add to this, he has mocked the rule of law, praised those charged with and convicted of violating it, tormented those charged with enforcing it, distorted tales about his personal behavior, and wreaked havoc on innocent farmers by making the sale of their goods too expensive for foreign consumers.

His presence was in that church as powerfully as if he had physically been there.

The bitterness about Trump was silently expressed by those who brought him to power and now cooperate with his behavior or pretend that they don’t. The mindset of the establishment continues to be that the government can right any wrong, regulate any behavior, borrow and spend any amount of money, and build a church in utter defiance of the First Amendment, the Constitution — which is supposed to limit the government, not unleash it — be damned.

So, who caused more harm to the republic, McCain and his admirers or Trump and his enablers? Republicans or Democrats? Is there a difference?

Ultimately, we are responsible for the folks we have elected and the things they have done, whether secretive, hypocritical or in our faces. Ultimately, we have the government we deserve. Will we change this before it is too late?

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

 
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About four years ago, I was browsing through one of Manhattan’s last remaining independent bookstores, when my cellphone rang. I didn’t recognize the incoming telephone number, with its 202 area code, but I assumed it was a Fox News colleague from our Washington bureau.

When I answered the phone, a somewhat familiar but somber voice said: “Judge Napolitano, your reward for what you did today will not come from your colleagues or viewers or even on earth but in heaven.”

What had I done to deserve this?

Earlier that day, Dianne Feinstein, a Democrat from California who was then the chair of the Senate Intelligence Committee, had defied her own committee members, congressional leadership from both houses of Congress and from both political parties, officials of the CIA, and even the Obama White House when she released on the floor of the Senate a 6,000-plus-page report detailing the use of torture by CIA officials in the George W. Bush administration — all of it unlawful.

She actually made the report public while physically standing on the floor of the Senate, where her speech is absolutely protected from government retaliation by the Speech and Debate Clause of the Constitution.

That clause recognizes and protects for members of Congress their complete freedom of speech while on the floor of the House or Senate, while doing congressional work and while traveling to Capitol Hill. Thus, even though she revealed top-secret materials in the report — which, if you or I had revealed them or if she had revealed them in Los Angeles rather than in Washington, would have constituted the crime of espionage — she was immune from all prosecution.

In response to the Feinstein revelations, my Fox News colleague and friend Shepard Smith and I spent about 30 minutes on-air that afternoon on his Fox News Channel show discussing the criminal behavior Feinstein had revealed, the constitutional protections she, as a member of the Senate, enjoyed, and the political firestorm she had courageously ignited.

As a believer in the rule of law and the bodily integrity of all people, I was full of praise for what Feinstein had just done. When the government breaks the laws it has sworn to uphold, Shep Smith and I argued, the people have a right to know about it.

But many of Sen. Feinstein’s colleagues did not see it that way. Many of those who never endured torture and those believing that the end justifies the means accepted the myth that torture works — that the victim tells the truth; and in their view, obtaining the truth is worth the cost in lawbreaking and body-breaking.

Only one Republican senator publicly supported what Feinstein had just done. He was my caller that afternoon in the bookstore, John McCain.

I thought of his call and our many ensuing conversations when I learned of his death this past weekend, a few days shy of his 82nd birthday.

McCain and I had hundreds of conversations. He knew that I knew that he was a bellicose warmonger and an uncritical supporter of unlimited military spending; and he was often indifferent to the consequences of those views.

But he was also the victim of prolonged and horrific torture during the Vietnam War, which he could have avoided. He told me many times that torture so distorts the mind that the victim’s consequent speech is utterly unworthy of belief.

He had become the leading congressional critic of torture, the prime congressional mover of making it all unlawful — the Bush Department of Justice notwithstanding, it already was unlawful at the time Bush ordered it — and one of the few Americans anywhere who could speak on this detestable subject from the personal experiences of a victim.

Platitudes aside, the essence of the telephone conversation we had that day was that Bush had committed war crimes; that torture is absolutely prohibited by the Constitution, several treaties to which the United States is a party and numerous federal statutes; and that Sen. Feinstein had performed a positive public good by revealing it.

It was Sen. McCain’s view that even if he was powerless to prevent government lawbreaking, it is better for the American people to know painful truths than to remain in the dark.

Shortly after our phone conversation, McCain went to the floor of the Senate and delivered one of his classic tirades against torture. In it, he attacked President Bush, who ordered and authorized it, and President Barack Obama, who covered it up.

This week, those two former presidents. firmly in McCain’s crosshairs four years ago, are each delivering a eulogy at McCain’s funeral — willingly, dutifully and at his request.

The John McCain I knew discussed only torture, the right to life, and immigration with me — perhaps because he knew we disagreed on nearly all other matters. But this tough old Arizona bird, this lifelong warrior, this unorthodox maverick who really was neither a Republican nor a Democrat, knew how to keep friends and monitor enemies.

He was a multidimensional man in a secular era, and he was not happy about America at the end of his days.

Yet in this age of few heroes, and on topics that intimately touch the human heart and soul, he was the genuine article.

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

 
• Category: Ideology • Tags: John McCain, Torture 
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When federal prosecutors are nearing the end of criminal investigations, they often invite the subjects of those investigations to speak with them. The soon-to-be defendants are tempted to give their version of events to prosecutors, and prosecutors are looking to take the legal pulse of the subjects of their work. These invitations should always be declined, but they are not.

Special counsel Robert Mueller — who is investigating President Donald Trump for obstruction of justice, pre-presidential banking irregularities and conspiracy to solicit or receive campaign aid from foreign nationals (the latter is what the media erroneously call collusion) — has made it known to former New York Mayor Rudolph Giuliani, the head of Trump’s legal team, that he wants to speak to the president.

Should Trump voluntarily speak with Mueller? In a word: No. Here is the back story.

Though I have been critical of some judgment calls made by Giuliani in his representation of Trump, I recognize, like anyone who has watched him or worked with or against him, that Giuliani is a smart and experienced lawyer. He has prosecuted directly or indirectly more than 5,000 criminal cases. He knows the criminal justice system, and he understands the power of prosecutors.

Yet the advice of most criminal defense lawyers and legal commentators familiar with the situation in which Giuliani finds himself today is to keep his client far away from the prosecutors. Here’s why.

Thanks to Giuliani’s numerous television appearances during which he has forcefully defended his client, Giuliani and Mueller have engaged in a very public series of negotiations on the limits, if any, that they might agree to as ground rules for an interview of the president.

Giuliani wants to limit the subject of questions to the alleged conspiracy between Trump’s campaign and Russians. After all, he argues, this is the stated purpose given by the Department of Justice for starting the special counsel’s investigation. And he wants to limit the number of questions and the time for all questions and answers. He argues that the president’s constitutional obligations transcend the needs of Mueller’s probe.

Mueller argues that he has an ethical obligation to follow whatever evidence of criminal behavior lawfully comes into his hands, about the president or his colleagues. As such, because he does not know in advance what Trump’s answers to his questions will be, he cannot consent to any limitations on his follow-up questions.

If I were Giuliani, I would tell Mueller that the negotiations are terminated and the president will not voluntarily sit for an interview with him. There are paramount and prudential reasons for this.

First, when prosecutors want to talk to a person they are investigating, the talk is intended to help the prosecutors, not the subject of the investigation. So why should Trump engage in a process that could only help those pursuing him?
Second, the prosecutors know their evidence far better than the president or his legal team possibly could know it, and these prosecutors know how to trip up whomever they are interviewing. So why should Trump give prosecutors an opportunity to trap him into uttering a falsehood in an environment where doing so can be a criminal act?

I recognize that Giuliani’s client is the most powerful person on earth, someone who is accustomed to having his way followed. And he has said countless times that he wants to talk to Mueller. Yet President Trump does not use an economy of words. Experience teaches that the undisciplined use of words by the subject of a criminal investigation is a prosecutor’s dream when it takes place in an official inquiry.

It is Giuliani’s job to prevent that dream from becoming reality by convincing his client, perhaps through an aggressive mock question-and-answer session conducted by Giuliani himself, that no good for Trump could come from a Mueller interview. I have seen many criminal cases in which potential defendants who thought they could talk prosecutors out of an indictment tried to do so and made matters worse for themselves.
But there is an elephant in the room.

That elephant is a grand jury subpoena. The Mueller interview is voluntary. If Trump agreed to it, he would not be under oath, and he could consult with counsel during it. Also, he could leave it whenever he wished. A grand jury subpoena compels a person to testify. The testimony is under oath, takes place without counsel present and can go on for as long as prosecutors and the grand jurors want to question the person. And they can ask him any questions they want to ask.

Surely, Trump would challenge a subpoena before a federal district court, and the challenge might land in the Supreme Court. Yet the controlling case, United States v. Nixon, is a unanimous 1974 Supreme Court decision requiring President Richard Nixon to surrender his infamous Oval Office tapes.

Though not directly on the point of compelled presidential personal oral testimony, the language in the Nixon case and the values underlying it all favor enforcement of a subpoena requiring personal testimony by the president. When the Ken Starr grand jury served a subpoena for the president’s testimony on Bill Clinton, whose crimes it was investigating, Clinton and his lawyers concluded that he needed to comply with it, which he did.

Of course, Trump could accept the subpoena and then invoke his Fifth Amendment-protected right to silence. However, he once publicly said, “If you’re innocent, why are you taking the Fifth?” So such an invocation would be catastrophic politically, but it would legally insulate him from helping Mueller to prosecute him.

Another president once weighed in on dealings with bureaucrats and prosecutors. Ronald Reagan quipped many times that the nine most terrifying words in the English language are: “I’m from the government, and I’m here to help.” Mr. President, beware of prosecutors bearing invitations.

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

 
• Category: Ideology • Tags: Donald Trump, Russia 
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In the past week, former New York Mayor Rudolph Giuliani, now the chief lawyer and principal spokesman for President Donald Trump’s legal team, has offered arguments more harmful to Trump than helpful. In a series of combative, disjointed and logically challenged television rants, Giuliani has essentially argued that Trump did not engage in any conspiracy with the Russians for them to provide help to his campaign and that even if he did, it wasn’t criminal.

In making this argument, Giuliani has played a word game in which he has effectively created a straw man and then denied it’s real because it’s made of straw. He has done this by avoiding the use of the word “conspiracy,” substituting the word “collusion” and then arguing that there is no crime of collusion and therefore Trump did not commit a crime. This is an argument based on a false premise.

Here is the back story.

When the FBI received word from a former British intelligence source in June 2016 that Russian intelligence agents might be providing assistance to the Trump campaign, it began an investigation of the campaign. After the British source gave the FBI a dossier that alleged salacious behavior by Trump in Moscow in 2013 — behavior he has denied — and purported to corroborate awareness of the behavior by Russian government officials, the FBI used the dossier as part of a presentation to the Foreign Intelligence Surveillance Court, which authorized surveillance of the Trump campaign.

Because one of the Trump campaign officials under surveillance, Jeff Sessions, became the attorney general in January 2017, he recused himself from the investigation, and the Department of Justice appointed former FBI Director Robert Mueller special counsel to head the investigation independent of the attorney general.

Mueller discovered dozens of contacts between the Trump campaign and Russians, many of them Russian intelligence agents. Mueller’s grand juries have indicted over two dozen Russians, some Russian intelligence officials, for interfering with the 2016 presidential campaign, and President Trump imposed heavy financial sanctions on many of them.

Mueller also discovered the existence of a June 2016 meeting in Trump Tower in New York between high-ranking campaign officials and Russian agents. When The New York Times revealed the meeting a year after it took place, the Trump folks claimed that the meeting was about the difficulties Americans were having adopting Russian children. Then emails emerged showing an offer to Donald Trump Jr. by a Russian agent to meet and provide help to the campaign in the form of dirt on Hillary Clinton. This was dirt allegedly obtained by hacking into her campaign’s computers. This was an offer that Don Jr. accepted.

The president has denied any knowledge of this meeting until it emerged publicly in July 2017, and Don Jr. has testified under oath before Congress that his father did not know of the meeting until the media revealed it. But last week, Michael Cohen, a lawyer who represented Trump for the 10 years preceding his inauguration and whose office was three doors down a hall from Trump’s, told Mueller and the media that Trump knew of the meeting beforehand and encouraged his campaign folks, including Don Jr., to make it happen.

Is any of this unlawful? That question brings us back to Giuliani.

In Giuliani’s zeal to represent his client, he has unleashed vitriolic verbal attacks on the credibility, morality and ethics of Cohen, using words and innuendo too lurid to recount here. Yet the ferocity of Giuliani’s attacks is now a problem for Trump. That’s because the rules of legal ethics prohibit lawyers from attacking the credibility of likely witnesses against their clients outside the courtroom. This is especially so for government witnesses.

Government witnesses meet with prosecutors and testify before grand juries in secret. When defense counsel attacks those witnesses in public, the government often views that as witness tampering — behavior that gives witnesses pause before testifying by freighting or threatening them. When defense counsel did that to government witnesses in cases that a young Rudy Giuliani prosecuted, he persuaded judges to remove those lawyers from the cases. That is the danger that confronts Giuliani and Trump now.

If Mueller has enough ammo (all of it from Giuliani’s mouth) to persuade a federal judge to bar Giuliani from continuing to represent Trump — and it appears he does — whoever replaces Giuliani will need to review and understand more than 1.4 million documents that the White House and the Trump campaign have surrendered to Mueller. That will be an enormous burden and a major financial, political and legal setback for Trump.

The case Mueller is investigating is not about collusion. Collusion is a Hollywood and a media word. The case is about conspiracy — and Giuliani knows this. A conspiracy is an agreement to commit a crime as a result of which at least one of those who agreed took at least one material step in furtherance of the agreement. Stated differently, Mueller is investigating an alleged agreement between Russian intelligence agents and Trump campaign officials for the Russians to provide dirt on Clinton to the campaign. The dirt need not have arrived — and whatever may have arrived need not have been dirt — for the crime of conspiracy to have taken place, because the essence of conspiracy is an agreement, whether consummated or not.

In one of his more bizarre rants on Fox News Channel early this week, Giuliani said there may have been a meeting at Trump Tower to plan the meeting with the Russians. Why would he reveal this? Because Mueller knows it and will reveal it. And both know that such a meeting would be the beginning of an agreement, as well as a material step in furtherance of it.
Sometimes even famous lawyers do more harm than good to their clients.

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

 
• Category: Ideology • Tags: Donald Trump, Russia 
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Last week, in Ridgewood, New Jersey, a 92-year-old unsung American patriot lost his battle with congestive heart failure. He had been surrounded by his wife and children and their spouses and their children. He left this vale of tears in his wife’s arms, peacefully and with dignity.

His was an American life.

He was born in Newark, New Jersey, during the Roaring ’20s, the son of Italian immigrants who had come to America as children. When he was 4 years old, he met a curly-haired little girl in the neighborhood who was just three days older than he. She would become his high school sweetheart and his best friend for 88 years and his wife for the last 70 of them.

In a large public high school, he did not excel in academics, but he was a superb athlete; and he had an unquenchable interest in electronics, a subject not taught in the public schools in those days.

His graduation from high school in 1943 was accelerated from June to January because the country was fighting in World War II and it needed the boys to join the effort quickly. Our boy enlisted in the Navy.

Four months after graduation, at age 17, he completed Navy boot camp and was excited about his first assignment — on a submarine in the north Atlantic. As he was boarding the submarine at a naval base in Rhode Island, he slipped and fell on a wet dock and broke his right foot. He was hospitalized for two months. The submarine he was about to enter never returned and was never found.

He was then assigned to a destroyer escort, which cruised the Mediterranean and supported Patton’s Army in the liberation of Italy. Aboard ship, he excelled in electronics and boxing — always the athlete yet reading about wires and batteries and electrical currents until late in the night.

One day, shortly after the liberation of Naples, the city of his father’s birth, he was on leave with his buddies and he saw an old man who resembled his grandfather sitting on a curb stone. The old man’s home had been destroyed by Allied bombing, and the old man himself was without shoes.

Our friend resisted the collective wisdom of his buddies and took off his military-issued boots and gave them to the old man. He had his buddies sneak him back aboard ship before his superiors could see him in his stocking feet.

When he was charitable, he hid it.

He returned home to New Jersey in 1946. The little girl had grown up to be a beauty and a brain. During the war, she worked in the Newark Public Library for 17 cents an hour. She borrowed and read a book a week in the 2 1/2 years of our man’s involvement in the war.

Two years after he came home, he and that grown-up girl got married.

His first and only adult job was with the New Jersey Bell Telephone Co. He started out climbing telephone poles, and he went on to install equipment in homes and offices. He soon moved into management and eventually went into teaching — his favorite job.

He taught electronics to new employees and colleagues and even to executives who wanted to advance themselves. This was the electronics he had learned in the Navy, supplemented by the electronics that he had taught to himself.

He and his wife had three boys, one of whom followed him into the telephone company and two of whom received scholarships to Ivy League schools. He taught tough lessons to his boys at home — lessons about honesty, humility, self-reliance and teamwork. His favorite one-liner was, “Anything worth doing is worth doing well.”

He practiced what he preached. He was a tough taskmaster who demanded much and gave much; and he always forgave. Always. He was an iron fist inside a velvet glove.

He was the first person in his family to vote Republican, and he took a lot of heat for that. FDR had catered to immigrant families in the big cities, and they formed a healthy part of the base of the Democratic Party in the 1930s and ’40s. But when the boys came home from Europe and the Pacific and started families and then when Ike ran and many of his soldier and sailor buddies could vote for their former supreme Allied commander, he did so.

Voting Republican in the late ’40s and early ’50s was anathema in an Italian-American Roman Catholic family in the Northeast. Today it is pretty much the norm.

He would explain to his parents and in-laws and sons that he feared the Democrats would give away the store to stay in office. Though he loved the Navy and respected the police, he was skeptical of government in general, and he loved Jefferson’s mantra that “that government is best which governs least.”

He was a devout Roman Catholic. He loved the New York Yankees, the New York Football Giants and Fox News — and he loved that girl he married, more with each passing day.

In his waning years, his wife sacrificed dearly for him because his tobacco-ravaged heart was unable to do its job alone. Yet modern science and a wife who overlooked nothing added many happy years to his life.

But nature has her rhythms, and they can be unforgiving. There is a time for living and a time for dying. Even God died. After this marvelous man received the Anointing of the Sick and he said a peaceful, loving goodbye, the angels came and brought his soul to heaven.

I knew this man well and loved him with all my heart. He taught me all his values.

His name was Andrew Alexander Napolitano.

He was my father.

Requiescat in pace, Dad.

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

 
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As a trial judge in New Jersey during the Ronald Reagan and George H.W. Bush years, I spent much of my time trying to settle cases. This process involved bringing into my chambers the lawyers for the disputants and asking them in the absence of their adversaries to lay their cards on the table.

After I found out what the litigants truly wanted and I did some pushing and shoving and jawboning, more often than not, agreements were reached. The threat of an imminent jury trial — with its expenses, complexities and uncertainties — was often enough to bring the parties to a quick, sensible and relatively inexpensive resolution. Occasionally, flattery — even fatuous flattery — helped.

All trial judges in America are familiar with this process. It takes place in criminal, as well as civil, cases in every courthouse in the country nearly every day.

But it takes place in secret. I could not imagine announcing to the public the state of the negotiations or my opinions of any of the negotiators midstream. If compelled by some arcane custom to do so, I’d have praised the unpraiseworthy — to help bring about a favorable result.

I was reminded of all this earlier in the week as I watched the politically unpopular performance of President Donald Trump at an internationally televised — and now much-analyzed — joint news conference he held with Russian President Vladimir Putin.

It appears that because he did not utter anything like President Reagan’s “Mr. Gorbachev, tear down this wall,” referring to the Berlin Wall, or “trust but verify,” referring to U.S.-Soviet nuclear arms treaties and because he gave public credence to Putin’s private and incredulous denials of Russian meddling in the 2016 presidential election, he somehow came across as weak or insufficiently American.

At this writing, no nationally known Republican officeholder except Sen. Rand Paul of Kentucky has come publicly to the president’s defense. Some in the Democratic Party and some of my colleagues in the media have even accused Trump of treason. How misunderstanding they are.

Here is the back story.

For 18 months, Trump has sought to develop a personal relationship with Putin unlike any relationship that any modern American president has had with him or his predecessors. The Democrats and Republican never-Trumpers doubt Trump’s bona fides and even his intellect. “Who could cut a deal with a monster?” they have bellowed.

Make no mistake; Putin is a monster. He has invaded Ukraine, bombed rebels in Syria, shored up fanatics in Iran, imprisoned political opponents on false charges and stolen billions from Russian oligarchs and the Russian people.

To this litany of criminality, Trump has wisely asked: How have any of his monstrosities harmed the United States? Answer: None of this is morally sound, and all of it is profoundly unlawful, but none of it has harmed us.

This realization has led Trump — in defiance of the advice from his own secretary of state, CIA director and national security adviser — to try to understand Putin and to negotiate with him.

There is much to negotiate about. We want the Russians to stay out of our computers and away from our elections. We want them to stop trying to reorganize the Middle East. And we want them to reduce their nuclear and long-range offensive weaponry. Of course, they want the same from us.

I don’t know whether Putin can be reasoned with. But I believe that if anyone can do it, Donald Trump can. This is what made me think this past week of all those litigations I helped to resolve. Negotiations are often fluid. They take time and patience, as well as threats and flattery, and they cannot be successful under a microscope.

Stated differently, Trump knows how to negotiate, and his skills cannot be assessed midstream — because midstream is often muddy and muddled. Trump’s efforts this week were just a beginning. His public praise of Putin and giving moral equivalence to Putin and our intelligence services were not to state truths but to influence Putin’s thinking in order to bend Putin’s will — eventually — to his own.

But the neocons in Congress will have none of this. The power of American arms-makers is formidable and profound. They have acolytes in all branches of the federal government. They depend on the threats of foreign governments to animate taxpayer funding of their armaments.

They know that Russia is the only threat in Europe, and they fear that if President Trump reaches a meaningful rapprochement with President Putin, there will result a diminished American appetite for their weaponry.

And they know that Donald Trump understands that.

So they have jumped on a fluid long-term negotiation at its inception by mocking the president’s flattery. They would have mocked Franklin Roosevelt for calling monstrous Soviet dictator Josef Stalin “Uncle Joe” as he bent him to his will.
Where does this leave us? We have impatient media that hate the president, a bipartisan majority in Congress beholden to the military-industrial complex, and a president who knows more about negotiating with bad guys than any of them.

And unlike the warmongers, the president is willing to talk to anyone if there is a chance it could result in peace. President Lyndon B. Johnson often remarked that there are two things in life you never want to watch being made and only want to see when completed: legislation and sausages. We should add international peace to that short list.

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

 
• Category: Foreign Policy, Ideology • Tags: American Media, Donald Trump, Russia 
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When Donald Trump started running for the Republican nomination for president in June 2015, he began by attacking the Republican establishment in Washington, and he began his attack by calling the establishment “the swamp.”

His real target was the permanent government and its enablers in the legal, financial, diplomatic and intelligence communities in Washington. These entities hover around power centers no matter which party is in power.

Beneath the swamp, Trump argued, lies the deep state. This is a loose collection of career government officials who operate outside ordinary legal and constitutional frameworks and use the levers of government power to favor their own, affect public policy and stay in power. Though I did not vote for Trump — I voted for the Libertarian candidate — a part of me rejoiced at his election because I accepted his often repeated words that he would be a stumbling block to the deep state and he’d drain the swamp.

On Monday night, he rewarded the swamp denizens and deep state outliers by nominating one of their own to the Supreme Court.

Here is the back story.

The late Justice Antonin Scalia — my friend during the final 10 years of his life — and his neighbor and colleague Justice Anthony Kennedy often remarked to each other during the Obama years that each would like to leave the Supreme Court upon the election of a Republican president. Scalia’s untimely death in February 2016 denied him that choice, but Kennedy bided his time.

When Trump was elected president, Kennedy told friends that he needed to await Trump’s nominee to replace Scalia to gauge whether the judicially untested Trump could be counted upon to choose a nominee of Kennedy’s liking and Scalia’s standing.

Trump knew Kennedy’s thinking, and that guided him in choosing Neil Gorsuch for Scalia’s seat. Gorsuch believes in the primacy of the individual and natural rights and is generally skeptical of government regulators. He is also a former Kennedy clerk.

So the Gorsuch selection was intended to serve two purposes. The first was to pick a Scalia-like thinker for the court as candidate Trump had promised, and the second was to give Kennedy a comfort level so he could retire and give President Trump a second nominee. It worked.

When Kennedy paid an unprecedented visit to the Oval Office two weeks ago, ostensibly to tell the president of his intention to retire, he also had a secret purpose — to recommend his replacement. The announcement of Kennedy’s departure began a firestorm of lobbying in behalf of four people from a list of 25 potential nominees that Trump had published when searching for Scalia’s replacement.

The idea of a published list is novel. But it cemented loyalty from conservatives to Trump, who, of course, had no track record in evaluating or appointing judicial nominees. The standards used to put names on the list involved examining academic credentials and published works and, with the exception of one person, requiring judicial experience with a traditionalist bent, even if brief.

Social and religious conservatives pushed the president to nominate Judge Amy Coney Barrett, a fiercely Catholic mother of seven and former Notre Dame Law School professor who is a known opponent of abortion. Intellectual conservatives pushed for Judge Raymond Kethledge, a philosopher like Justice Gorsuch who believes in the primacy of the individual and who recognizes natural rights. The president’s sister Judge Maryanne Trump Barry had her brother convinced that her colleague Judge Thomas Hardiman, a blue-collar diamond-in-the-rough conservative, would fulfill his promise to his base.

But at the last minute, a gaggle of Washington lawyers and lobbyists — called the establishment when you agree with them and the swamp when you don’t — persuaded the president to reject his commitment to his sister and nominate Judge Brett Kavanaugh. He is the man Justice Kennedy had asked the president to nominate and is another former Kennedy clerk.

The suspense over all this was palpable earlier this week. The showman in the president beat a drum so effectively last weekend that we all watched with excited pulse rates on Monday night. I was and remain extremely disappointed. Donald Trump — whatever you think of him as a president — has been utterly faithful to his campaign promises in foreign and domestic policy. Until now.

Now he has given us a nominee to the highest court in the land who typifies the culture he railed against when he claimed he’d drain the swamp. This man and this culture accept cutting holes in the Fourth Amendment because they don’t believe that it should protect privacy. This man and this culture accept unlimited spying on innocent Americans by the National Security Agency because they don’t believe that the NSA is subject to the Constitution.

This man and this culture even looked the other way in the face of deep state shenanigans against President Trump himself. This man and this culture accept the federal regulation of health care and its command that everyone buy health insurance, called Obamacare. This man and this culture embrace the Nixonian mantra that if the president does it, it is not illegal.

What happened here?

The Kavanaugh nomination is not a question of his qualifications; it is a question of his values. It is dangerous for judges to embrace values that diminish personal freedom rather than expand it. When they do that, they reveal their view that freedom comes from the government, not from within us. Thomas Jefferson and all the Founding Fathers profoundly rejected the government-as-source-of-freedom argument, but Judge Kavanaugh accepts it.

Jefferson once remarked that unless you pick someone’s pocket or break someone’s leg, no one should care how you exercise your freedom or pursue happiness. I wish the president had nominated a person who believes that, as well. But he didn’t.

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

 
• Category: Ideology • Tags: Donald Trump, Supreme Court 
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The Declaration of Independence — which was signed on July 3, 1776, for public release on July 4 — was Thomas Jefferson’s masterpiece. Jefferson himself wrote much about the declaration in the 50 years that followed.

Not the least of what he wrote offered his view that the declaration and the values that it articulated were truly radical — meaning they reflected 180-degree changes at the very core of societal attitudes in America. The idea that farmers and merchants and lawyers could secede from a kingdom and fight and win a war against the king’s army was the end result of the multigenerational movement that was articulated in the declaration.

The two central values of the declaration are the origins of human liberty and the legitimacy of popular government.

When Jefferson wrote that we are endowed by our Creator with certain inalienable rights, he was referring to the natural law. The natural law teaches that right and wrong can be discerned and truth discovered by the exercise of human reason, independent of any commands from the government. The natural law also teaches that our rights come from our humanity — not from the government — and our humanity is a gift from our Creator.

Even those who question or reject the existence of the Creator — was Jefferson himself among them? — can embrace natural rights, because they can accept that our exercise of human reason leads us all to make similar claims. These claims — free speech, free association, free exercise or non-exercise of religion, self-defense, privacy, and fairness, to name a few — are rights that we all exercise without giving a second thought to the fact that they are natural and come from within us.

The view of the individual as the repository of natural rights was not accepted by any governments in 1776. In fact, all rejected it and used violence to suppress it. To the minds of those in government in the mid-18th century, the king was divine and could do no wrong, and parliament existed not as the people’s representatives but to help the king raise money and to give him a read on the pulse of landowners and nobility.

Jefferson and his colleagues had no difficulty breaking from this type of ancient regime. Unlike the French, who destroyed their monarchy, the American colonists seceded from theirs — and they did so embracing natural rights. Regrettably, they did not recognize natural rights for African slaves or for women. We all know and profoundly lament the sorry history of those errors.

The idea that each human being possesses inherent natural rights by virtue of one’s humanity is not just an academic argument. It has real-life consequences, which Jefferson recognized. Those consequences are implicated when government seeks to curtail rights for what it claims is the protection of another’s individual rights, the common good or the good of the government itself.

Jefferson recognized that you can consent to the curtailment of your rights but you cannot consent to the curtailment of mine. To Jefferson, government can take away your rights without your consent only if you have violated someone else’s rights.

Surrendering rights is also implicated in the second radical idea that underscores the Declaration of Independence. It is the concept that no government is valid unless it enjoys the consent of the governed. This, too, was unheard of in 1776, because British kings did not claim consent of the governed as the basis for legitimacy.

Yet consent of the governed is perfectly consistent with natural law. Under natural law, what is yours is yours and what is mine is mine. If I attempt to take your land or car or cellphone, you can stop me, either directly or through the government we have both consented to. If one of us has not consented to the government’s existence, it can still enforce natural rights as the agent of the person whose rights are being violated — just as it does for bank depositors when it captures a bank robber.

This idea of consent of the governed was a serious issue in the days and years following July 4, 1776, because about one-third of the adults living in the United States in the last quarter of the 18th century remained loyal to the king of England after the Revolution, and they did not consent to the new popular form of government that took the British government’s place. The new government was thrust upon them without their consent.

The last letter Jefferson wrote was to his enemy-turned-friend John Adams, in anticipation of the 50th anniversary of the declaration — a day on which both Jefferson and Adams would die. In that letter, Jefferson argued that the greatest achievement of the declaration was its arousing men to burst free from the chains imposed upon them by superstition and myth by bringing about a recognition of their individual rights and an embrace of self-government.

Today the Jeffersonian ideals of individual natural rights and government’s legitimacy’s being conditioned upon the individual consent of the governed have themselves become myths.

In Jefferson’s day, the voters knew all that the government did, and it knew nothing about them. Today government operates largely in secrecy, and it knows our every move and captures our every communication.

In Jefferson’s day, the government needed the people’s permission to tax and regulate them. Today the people need the government’s permission to do nearly everything.

Do you know anyone who has consented to the government? Do you know anyone who could avoid the government by not giving consent? Do you consent to the government by voting? Do you consent to the government if it is run by those you voted against? Did you consent to a government that steals liberty and property and prosperity and gives them away?

Happy Fourth of July.

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

 
• 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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