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Donald Trump and the Rule of Law
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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.

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• Category: Ideology • Tags: Constitutional Theory, Donald Trump, FISA 
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  1. anonymous[340] • Disclaimer says:

    “Treason is the only crime defined in the Constitution, thereby preventing Congress and the courts from changing its meaning.” Pfft. They will if they wish.

    Mr. Napolitano is correct about President Trump’s ignorant misuse of “treason.” But why did he wait until now for the civics lesson? Some of his real friends were throwing the term around after a meeting in Helsinki that he might have heard about … until the President was made to retract at that creepy news conference where the lights went out.

    Speaking of which, when will “Judge” be updating his “back story” on St. Mueller’s Crusade? The brave men and women(tm) of the DOJ and FBI seem a little soiled and in need of their next tongue bath. Might go well with a primer on sedition…

    • Agree: Bubba
  2. 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.

    Could it be stretched to cover a coup against an elected president? Good question for the Supreme Court. Your opinion means nothing Andy. You can read the Constitution and know what it says. So can I. But only nine people on earth can know what it means.

  3. mb says:

    No mention of just who iirc Went to a fisa court for permission to surveil the repug campaign. Bias much?

    • Replies: @Anonymous
  4. Anonymous[156] • Disclaimer says:

    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

    DHS employee spends spare time promoting race war against ‘whites’

    There’s a war on. May as well get used to it. And those levying the war against heritage are indeed committing treason.

  5. Anonymous[156] • Disclaimer says:

    Only Trump is required to follow the law, and to the letter, see?

  6. The Never Trumpers have been playing unfairly, so why should Trump be expected to play fairly. When I think of people who would take the high road, he’s not exactly at the top of the list.

    Besides, I would like to see both sides duke it out in public. This would be an excellent way for the Deep State to further reveal itself so that my fellow clueless Americans might actually become aware that it exists. Or they might think the Deep State is a new NFL team.

  7. David JW says:

    Is Napolitano a clown?

    No one is saying the article is treason – it may indeed be free speech. But what is referred to in the article is a conspiracy within the White House to prevent the president from implementing the programme he ran on.

    • Replies: @anonymous
  8. anonymous[340] • Disclaimer says:
    @David JW

    No, clowns are funny.

    Mr. Napolitano since last November has revealed himself as an Establishment tool, robed as a guardian of Constitutional and natural rights that he defends in the abstract or carefully selected applications. Read what he’s written here about RussiaGate, etc., in the light of my and others’ critical comments and you’ll see the slippery, artful language. Another thing that will come through is his sycophancy for the priestly (legal) class of Washington.

    As I’ve already noted in this thread, the word for the actual election meddling at the FBI, DOJ, and elsewhere in the Beltway is “sedition.” Mr. Napolitano helps to hold these people up; he’s a Beltloop.

  9. This is RICH – from the man who lamented that revelations of misconduct at the FBI and CIA would be dangerous to those “revered” institutions.

    When I saw that, I shuddered. He ACTUALLY believes that saving these corrupt institutions – who routinely plant guns and evidence – who file obscure charges on friends and family of targets – in order to entrap and employ them….

    THIS is an institution worth defending? Does Napolitano not feel the log in his eye? Trump was accused of Treason by Brennan… for the Helsinki/Putin summit. Trump is accused of Treason on a daily basis…. yet this little worm… this turd…. this bought and paid for hack …. thinks he has standing to single out our wonderful President… for censure

    How EVER – can this man be taken seriously as a bipartisan observer or thoughtful arbiter?

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