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William Barr, the attorney general of the United States, now faces a likely contempt citation for failing to comply with a congressional subpoena and for misleading Congress. This is about the Mueller investigation of Russian interference in the 2016 presidential election. Isn’t the investigation now complete? How did the attorney general’s veracity become an issue and thereby extend the life of the investigation?

Here is the backstory.

When special counsel Robert Mueller completed his 448-page final report of his nearly two-year investigation of Russian interference in the 2016 presidential election, the Trump campaign and its relationships to Russian agents, and the personal efforts of President Donald Trump to impede the investigation, he complied with the federal rules and delivered his report to the attorney general. Barr examined the report and decided to undertake two approaches to releasing it to Congress and to the public.

The first approach was to summarize its principal conclusions and the second was to redact from public and congressional view materials that federal statutes and court rules prohibit him from making public. So, late on a Sunday afternoon in April, Barr authored a four-page summary of Mueller’s conclusions, which related that Mueller and his team of FBI agents and prosecutors could not establish the existence of a conspiracy between the Trump campaign and Russian agents for the campaign to receive something of value from the Russians. Barr offered the opinion that this conclusion exonerated Trump on the conspiracy — what the media falsely called “collusion” — charge.

The second statement in Barr’s four-page summary was that while Mueller found evidence of obstruction of justice by Trump personally, he left the decision of how to proceed with this evidence to Barr; Barr then concluded that the president would not be prosecuted.

In the meantime, Barr and his team began to scrutinize in private every word in Mueller’s report so as to reveal only what federal statutes and court rules permit to be revealed. While this process was going on, some folks on Mueller’s team leaked to the media their displeasure with Barr’s four-page letter because they felt it had sanitized the report and failed to capture the flavor, tone and gravity of the allegations it made against Trump personally.

After media outlets published the story of this disenchantment, Mueller himself sent a letter to Barr essentially objecting to the same matters that some on his team had complained about to the media.

While government officials often disagree with each other, this little spat over whether Barr’s summary was faithful to Mueller’s report became important because of the following seemingly innocuous event: When Barr was testifying before a House subcommittee about his budgetary requests for the Department of Justice in the next fiscal year, he was asked by a member of the subcommittee if he knew anything about any criticisms by members of Mueller’s team about his four-page summary of Mueller’s conclusions. He replied, “No, I don’t.”

But of course, Barr did know because Mueller told him in his letter of the complaints his office had about the four-page letter. Did the attorney general deceive Congress? The Democratic members of the Judiciary Committee grilled the attorney general later on this, and he offered that a follow-up telephone call between himself and Mueller dissipated Mueller’s written complaint. Yet, the fact that Mueller — a seasoned government official — wrote a letter about this knowing its near certain permanent residence in government files is telling. He made a permanent record of his complaint about Barr’s sanitized letter, and Barr hid that record from Congress.

At the same time that all of the above was transpiring, the House Judiciary Committee subpoenaed the full unredacted Mueller report from Barr, and he dropped the ball again. Instead of challenging the subpoena before a federal judge and asking her to rule on the lawfulness of compliance, Barr ignored it. This produced calls for the House to hold him in contempt; a largely symbolic gesture, yet an unpleasant one for Barr.

What’s going on here? It is clear that Barr’s four-page letter, about which Mueller complained to Barr and some of Mueller’s team complained to the media, was a foolish attempt to sanitize the Mueller report. It was misleading, disingenuous and deceptive. Also, because Barr knew that all or nearly all of the Mueller report would soon enter the public domain, it was dumb and insulting.

Barr knows the DOJ is not in the business of exonerating the people it investigates. Yet he proclaimed in his letter that Trump had been exonerated. When the report revealed 127 communications between Russian agents and Trump campaign officials in a 16-month period, and the expectations of those officials of the release of Hillary Clinton’s hacked emails, that is hardly an exoneration.

Was Barr’s testimony before Congress deceptive? In a word: Yes.

In a bit of bitter irony, the statute that the House Democrats now claim Barr violated is the same obstruction of justice statute that Mueller says the president violated — engaging in deceptive or diversionary behavior for a corrupt purpose in order to impede a government investigation or inquiry. This is a gravely serious charge against the attorney general. Barr’s prosecutors regularly prosecute defendants for doing what it now appears Barr has done. And the president last weekend added fuel to this fire by changing his mind on whether he will allow Mueller to testify publicly about his report. He now won’t permit it.

History teaches that these unpleasant events — like Watergate and Whitewater — can take on lives of their own, and can often have unintended consequences. But the lesson is always the same: It would be better for all of us if the whole truth comes out and comes out soon.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Robert Mueller, Russiagate 
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One should expect fireworks this week as Attorney General William Barr testifies before the Judiciary Committees of both the House and the Senate about the investigation and the report of special counsel Robert Mueller regarding Russian interference in the 2016 American presidential election. By now, most folks know that the interference was substantial but don’t seem to care much.

We know from Mueller’s report that Russian intelligence agents engaged in sophisticated cyber warfare against the United States, and we did very little to resist them. The Russians were physically here. They engaged via email and text with many Americans. They ran popular political rallies. They attempted to alter vote tallies. They received internal polling data from the Trump campaign, with which they communicated 127 times in 16 months.

None of this seems to be causing outrage. Instead, the outrage is around the efforts President Donald Trump personally undertook to interfere with the challenging work of finding out who the Russians were and what they did. Why would he attempt to derail such an investigation? Did then-President Barack Obama know what the Russians were up to? That seems unlikely, since he ardently wished to be succeeded in office by Hillary Clinton, and the Russian efforts were aimed at helping Trump.

But the American intelligence community should have known. It captures all the fiber optic communications of all people in America. This mass suspicionless surveillance is unlawful and unconstitutional, but the leadership of our 60,000-person strong domestic spying apparatus has persuaded every president since George H.W. Bush that all this spying keeps America safe. We now know that it doesn’t. It didn’t find a single Russian spy bent on influencing the election.

Former American spies have been complaining for years that capturing the keystrokes of all people in America 24/7 produces information overload — too much data to sift through when searching for those trying to harm our way of life.

From the Mueller report, we also know the determination of the attorney general to prevent any criminal charges — no matter the evidence — from being brought against the president for his attempts to impede the investigation.

The credible evidence that Mueller found of Trump’s obstruction was rejected by Barr based on a unique legal theory of the obstruction of justice statute, a theory that even Barr’s own prosecutors have rejected.

The Barr argument goes thusly: In order for a person to obstruct justice, there must be some justice to obstruct. Hence, if the alleged obstructer did not commit the underlying crime being investigated, then his so-called obstruction did not impair justice; it just impaired a fruitless investigation. This sophistry would make the Jesuits proud.

As well, this argument goes, so long as presidential interference in an investigation is grounded in the Constitution and is not “corrupt” — the word in the federal obstruction of justice statute — it is not prosecutable.

The nearly universal view of law enforcement, however, rejects Barr’s narrow view of obstruction and interprets the plain meaning of the federal statute as it was written. Thus, under this view, all corrupt interference or attempted interference with an investigation or judicial proceeding constitutes obstruction. A corrupt purpose is one that seeks personal gain for the obstructer, such as shielding him from the revelation of unpleasant truths.

So, if Trump fired FBI Director James Comey because Trump wanted to be the tallest person in the room or because he had a better director candidate in mind, there is no corrupt purpose. But if he fired Comey to delay or stop the FBI’s acquisition of painful truths about Russia, as he told NBC’s Lester Holt was his purpose, then whether the truths he wants to hide are about unlawful behavior or not, Trump’s purpose is corrupt and his behavior is prosecutable.

As well, if the pre-presidential Trump instructed retired Lt. Gen. Michael Flynn to tell the Russian ambassador that Trump would relax sanctions on Russian banks and oligarchs once in office — as Flynn told Mueller was the case — Trump’s efforts to hide that truth from FBI investigators constitute obstruction. And, if Trump lied to the public about the communications between his campaign and the Trump Organization and the Russians — he said there were none — and he tried to prevent the FBI from learning about the 127 communications, Trump’s purpose is corrupt.

Asking Deputy National Security Adviser K.T. McFarland to put an untruthful document about Flynn’s conversation with the Russian ambassador into a government file that is likely to be subpoenaed and asking White House Counsel Don McGahn to lie to FBI agents are acts of obstruction. They constituted ordering subordinates to commit crimes for a corrupt purpose — shielding Trump from the revelation of unpleasant truths about his behavior.

We know that Attorney General Barr’s own DOJ rejects its boss’ narrow view of obstruction because of an indictment it announced just last week. A federal grand jury in Boston indicted a sitting judge of the Superior Court of Massachusetts for obstruction of justice. Her crime? She allegedly told the ICE agents in her courtroom to arrest a defendant appearing in front of her that the defendant would be released from her custody in the courthouse lobby.

When sheriff’s officers instead released him to the courthouse parking lot, and the defendant escaped, the judge was accused of obstructing justice even though it is legally impossible for her to have committed the underlying crime that ICE was prosecuting — illegal reentry into the U.S. by a once-deported and undocumented immigrant.

The U.S. is planted thick with laws intended to preserve human freedom by keeping the government honest. When the government breaks its own laws and gets away with it, it undermines the personal liberty of us all.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Robert Mueller, Russiagate 
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When the Department of Justice designated Robert Mueller as special counsel to take over the FBI investigation of the Trump campaign in May 2017, Mueller’s initial task was to determine if there had been a conspiracy — an illegal agreement — between the campaign and any Russians to receive anything of value.

When former FBI Director James Comey informed Mueller that he believed Trump fired him because he had declined Trump’s order to shut down the investigation of Trump’s campaign and of his former national security advisor, retired Lt. Gen. Michael Flynn, Mueller began to investigate whether the president had unlawfully attempted to obstruct those investigations.

We now know why Trump was so anxious for the FBI to leave Flynn alone.

Flynn was charged and pleaded guilty to lying to the FBI about whether he discussed sanctions in a telephone call with then-Russian ambassador to the United States Sergey Kislyak, before Trump became president. Such a communication could have been unlawful if it interfered with American foreign policy.

So, when Trump learned of the lie, he fired Flynn. Yet in his plea negotiations with Mueller, Flynn revealed why he discussed sanctions with Kislyak — because the pre-presidential Trump asked him to do so. An honest revelation by Trump could have negated Flynn’s prosecution. But the revelation never came.

Last week, Attorney General William Barr released publicly a redacted version of Mueller’s final report. That report concluded that notwithstanding 127 confirmed communications between the campaign and Russians from July 2015 to November 2016 (Trump said there were none), the government could not prove the existence of a conspiracy.

On obstruction, the report concluded that notwithstanding numerous obstructive events engaged in by the president personally, the special counsel would not charge the president and would leave the resolution of obstruction of justice to Congress. Congress, of course, cannot bring criminal charges, but it can impeach.

Trump initially claimed that he had been completely exonerated by Mueller — even though the word “exoneration” and the concept of DOJ exoneration are alien to our legal system. Then, after he learned of the dozen or so documented events of obstruction described in the report, Trump used a barnyard epithet to describe it.

The Constitution prescribes treason, bribery or other high crimes and misdemeanors as the sole bases for impeachment. We know that obstruction of justice constitutes an impeachable offense under the “high crimes and misdemeanors” rubric because both presidents in the modern era who were subject to impeachment proceedings — Richard Nixon and Bill Clinton — were charged with obstructing justice.

Obstruction is the rare crime that is rarely completed. Stated differently, the obstructer need not succeed in order to be charged with obstruction. That’s because the statute itself prohibits attempting to impede or interfere with any government proceeding for a corrupt or self-serving purpose.

Thus, if my neighbor tackles me on my way into a courthouse in order to impede a jury from hearing my testimony, and, though delayed, I still make it to the courthouse and testify, then the neighbor is guilty of obstruction because he attempted to impede the work of the jury that was waiting to hear me.

Mueller laid out at least a half-dozen crimes of obstruction committed by Trump — from asking K.T. McFarland to write an untruthful letter about the reason for Flynn’s chat with Kislyak, to asking Corey Lewandowski and then Don McGahn to fire Mueller and McGahn to lie about it, to firing Comey to impede the FBI’s investigations, to dangling a pardon in front of Michael Cohen to stay silent, to ordering his aides to hide and delete records.

The essence of obstruction is deception or diversion — to prevent the government from finding the truth. To Mueller, the issue was not if Trump committed crimes of obstruction. Rather, it was if Trump could be charged successfully with those crimes.

Mueller knew that Barr would block an indictment of Trump because Barr has a personal view of obstruction at odds with the statute itself. Barr’s view requires that the obstructer have done his obstructing in order to impede the investigation or prosecution of a crime that the obstructer himself has committed. Thus, in this narrow view, because Trump did not commit the crime of conspiracy with the Russians, it was legally impossible for Trump to have obstructed the FBI investigation of that crime.

The nearly universal view of law enforcement, however, is that the obstruction statute prohibits all attempted self-serving interference with government investigations or proceedings. Thus, as Georgetown Professor Neal Katyal recently pointed out, former Detroit Mayor Kwame Kilpatrick was convicted of obstruction for interfering with an investigation of his extramarital affair, even though the affair was lawful.

Famously, Martha Stewart was convicted of obstruction of an investigation into her alleged insider trading, even though the insider trading charges against her had been dismissed. And a federal appeals court recently upheld the obstruction conviction of a defendant who suborned perjury in order to impede the prosecution of the sister of a childhood friend.

On obstruction, Barr is wrong.

So, the dilemma for House Democrats now is whether to utilize Mueller’s evidence of obstruction for impeachment. They know from history that impeachment only succeeds if there is a broad, national, bipartisan consensus behind it, no matter the weight of the evidence or presence of sophisticated legal theories.

They might try to generate that consensus by parading Mueller’s witnesses to public hearings, as House Democrats did to Nixon. Yet, when House Republicans did that to Clinton, and then impeached him, they suffered politically.

The president’s job is to enforce federal law. If he had ordered its violation to save innocent life or preserve human freedom, he would have a moral defense. But ordering obstruction to save himself from the consequences of his own behavior is unlawful, defenseless and condemnable.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Robert Mueller 
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That God, which ever lives and loves,
One God, one law, one element,
And one far-off divine event,
To which the whole creation moves.

–Alfred Lord Tennyson (1809-1892)

When America was in its infancy and struggling to find a culture and frustrated at governance from Great Britain, the word most frequently uttered in pamphlets and editorials and sermons was not “safety” or “taxes” or “peace”; it was “freedom.” And two intolerable acts of Parliament assaulting freedom broke the bonds with the mother country irreparably, precipitating the Revolution.

The first was the Stamp Act of 1765, which was enforced by British soldiers, who used general warrants issued by a secret court in London to rummage through the personal possessions of any colonists they chose, ostensibly looking to see whether they had purchased the government-mandated stamps.

These general warrants, like the ones the secret Foreign Intelligence Surveillance Court issues in America today, did not specifically describe the place to be searched or the person or thing to be seized — which the Constitution requires.

Rather, they granted authority for the bearer to search wherever he pleased and seize whatever he wanted — as FISA warrants do currently, in direct contravention of the Constitution.

The second intolerable act was the Revenue Act of 1767, the proceeds from which were used by the king to pay salaries of colonial officials and clergy, and thereby secure their loyalty.

The Stamp Act assaulted the right to be left alone in the home, and the Revenue Act corrupted colonial governments and restricted the free exercise of religion. These two laws caused many colonists to realize they needed to secede from Great Britain and form their own country, in which freedom would be protected by the government, not assaulted by it.

They did that, of course. Yet today, the loss of freedom still comes in many forms.

Sometimes it is direct, as when Congress tells us how to live our personal lives and the courts permit it to do so. Sometimes it is subtle, as when the government borrows $1 trillion a year and, as a result, our money and assets lose much of their value and our descendants will be taxed to repay the loans. Sometimes the government lies about its assaults, as when the National Security Agency reads our emails and text messages and listens to our phone calls without a constitutional search warrant, and when the CIA uses drones to kill people the government hates or fears without a declaration of war or any due process.

Freedom is the ability of every person to exercise free will without a government permission slip or watchdog. Free will is the natural characteristic we share in common with God. He created us in His image and likeness. As He is perfectly free, so are we.

When the government takes away free will, whether by fiat or by majority vote, it steals a gift we received from God; it violates natural law; it prevents us from having and utilizing the means to seek the truth. Because the exercise of free will to seek the truth is a natural right, the only time it is moral for the government to interfere with it occurs when one has been fairly convicted by a jury of using fraud or force to interfere with the exercise of someone else’s natural rights.

We know, from events 2,000 years ago that Christians commemorate this week, that freedom is the essential means to discover and unite with the truth. To Christians, the personification, the incarnation and the perfect manifestation of truth is Jesus — who is the Christ, the Son of God and the Son of the Blessed Virgin Mary.

On the first Holy Thursday, Jesus attended a traditional Jewish Passover Seder. Catholics believe that at His Last Supper, Jesus performed two miracles so that we could stay united to Him. He transformed ordinary bread and wine into His own body, blood, soul and divinity, and He empowered His disciples and their successors to do the same.

On the first Good Friday, the Roman government executed Jesus because it was convinced that by claiming to be the Son of God, He might foment a revolution. He did foment a revolution, but it was in the hearts and minds of men and women. The Roman government had not heard of a revolution of hearts and minds, so when it crucified Him, it thought it had triumphed over Him.

Jesus had the freedom to reject His horrific death, but He exercised His free will to accept it so that we might know the truth. The truth is that He would rise from the dead.

On Easter, that “far-off divine event,” He rose from the dead. By doing that, He demonstrated to us that while living, we can liberate our souls from the slavery of sin and our free wills from the oppression of the government. And after death, we can rise to be with Him.

The Resurrection of Jesus is the linchpin of human existence “to which the whole creation moves.” With it, life is worth living, no matter its heavy costs or pains. Without it, life is meaningless, no matter its fleeting joys or triumphs. Easter has a meaning that is both incomprehensible and simple. It is incomprehensible that a human being had the freedom to rise from the dead. It is simple because that human being was and is God.

What does Easter mean? Easter means that there’s hope for the dead. If there’s hope for the dead, then there’s hope for the living. But like the colonists who fought the oppression of the king, we the living can achieve our hopes only if we have freedom. And that requires a government that protects freedom, not one that assaults it.

Happy Easter.

Copyright 2019 Andrew P. Napolitano.

Distributed by Creators.com.

 
• Category: Ideology • Tags: Christianity, Constitutional Theory 
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When Attorney General William Barr released his four-page assessment of Special Counsel Robert Mueller’s 400-page report, I was disappointed at many of my colleagues who immediately jumped on board the “no collusion” and “no obstruction” and “presidential exoneration” bandwagons.

As I write, Barr and his team are scrutinizing the Mueller report for legally required redactions. These include grand jury testimony about people not indicted — referred to by lawyers as 6(e) materials — as well as evidence that is classified, pertains to ongoing investigations or the revelation of which might harm national security.

Mueller impaneled two grand juries, one in Washington, D.C., and the other in Arlington, Virginia. Together they indicted 37 people and entities for violating a variety of federal crimes. Most of those indicted are Russian agents in Russia who have been charged with computer hacking and related crimes in an effort to affect the 2016 presidential election. They will never be tried.

Some of the Americans indicted have pleaded guilty to lying to FBI agents, such as retired Lt. Gen Michael Flynn, Rick Gates and George Papadopoulos. Papadopoulos told me personally that even though he pleaded guilty to lying to the FBI, he did not in fact lie to them. Do the innocent ever plead guilty? Answer: Yes, they do.

This is a dirty little secret of the American justice system. Often, the cost of defending oneself is so burdensome that a guilty plea — if not disabling to one’s profession, such as law or medicine — offers a tolerable and far less expensive way out. In my years as a trial judge in New Jersey, I accepted more than 1,000 guilty pleas. I always asked if the defendant was truly guilty, and the defendants always replied affirmatively. But the guilt of those pleading guilty is often a legal fiction, practiced every day in courthouses around the United States.

Paul Manafort was convicted of financial crimes by a jury and also pleaded guilty to other financial crimes. Roger Stone was indicted for lying to Congress and is scheduled for trial in the fall. Dr. Jerome Corsi, who was interrogated extensively by Mueller’s FBI agents, was threatened with indictment, revealed the threat and was never indicted.

I recount this thumbnail history to remind readers that Mueller delved into many more areas than President Donald Trump’s behavior. Knowing federal prosecutors as I do, I am comfortable suggesting that more people were swept up into this investigation and were not charged with any crimes. Under the law, Barr and his team must be told of all this, but the public has no right to know who these folks are or what they discussed with the FBI.

Now back to Barr’s four-page assessment. The Department of Justice is in the business of investigating crimes and determining if it has sufficient, lawfully acquired evidence to prosecute and to prove guilt beyond a reasonable doubt. The DOJ is not in the business of exoneration. In fact, the word “exoneration” and the concept appear nowhere in the U.S. Code or the Federal Rules of Criminal Procedure. To offer, as Barr has in his letter, that Mueller exonerated Trump is to offer nonsense. Jay Sekulow, one of Trump’s personal lawyers, acknowledged as much publicly last weekend.

In his letter, Barr did not write that Mueller found no evidence of a conspiracy. Conspiracy is an agreement to commit a crime, whether or not that crime is actually committed. This is what the media and the president have been calling collusion. “Collusion” also does not appear in the U.S. Code and does not describe criminal behavior. It was insinuated into our vocabulary by Trump’s television lawyer, former New York City Mayor Rudy Giuliani, after a successful but deceptive word game campaign.

As well, Barr did not write that Mueller found no evidence of obstruction of justice. Obstruction is not a crime that requires completion, only a serious attempt. If I tackle you on your way into a courthouse where you plan to testify against me, so as to impede your testimony, then I have committed obstruction, even if you subsequently give the intended testimony.

The reason for my criticism of the no collusion and no obstruction bandwagon riders is because we know that Mueller must have found some evidence of conspiracy and some evidence of obstruction — just not enough to prove guilt beyond a reasonable doubt. Barr tipped his hand to this when he wrote in his letter that the DOJ could not “establish” these crimes. That’s lawyer-speak for “could not prove them beyond a reasonable doubt.”

If Mueller had found no evidence whatsoever of conspiracy and obstruction, Barr would have said so in his letter. He didn’t. So, will we see whatever evidence Mueller did find?

We also know that, according to some on the Mueller team, the flavor of whatever Mueller found did not come through in Barr’s four-page letter, and some have voiced privately to the media their displeasure. This has caused the president to accuse Mueller’s team of unlawful leaking. That is not necessarily so.

Voicing displeasure is one thing — “wait for the full report to come out and decide for yourself if the Attorney General fairly characterized it” — revealing 6(e) materials is another. The former is protected free speech. The latter could be career-ending.

Where does all this leave us? In the hands of Bill Barr. The House Judiciary Committee wants to see the evidence, which Barr will argue the law requires him to keep secret. Yet, did the president waive his privacy rights when he called for the public revelation of the full Mueller report? A federal judge will soon answer that question, as well as this one: With respect to the president, which is the higher value — privacy or truth?

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Robert Mueller, Russiagate 
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“If the provisions of the Constitution be not upheld when they pinch, as well as when they comfort, they may as well be abandoned.” — Justice George Sutherland (1862-1942)

Here we go again. The legal battle over the constitutionality of the Affordable Care Act — Obamacare — will soon be back in court due to the largely unexpected consequences of a series of recent events.

When the ACA was enacted in 2010, it was a stool with four legs. The first was a declaration that access to professional health care treatment — even for preexisting conditions — is a right to be guaranteed by the federal government. Second, that all people in America are legally required to have health insurance or be assessed for the cost of an insurance policy by the IRS — this is the so-called individual mandate. Third, that all employers of 50 or more full-time employees provide health care insurance to their employees. And fourth, that the federal government would micromanage the delivery of health care and, along with the states, orchestrate and subsidize health care for those who did not receive it from an employer.

When the legal challenge to the ACA was before the Supreme Court in June 2012, the core issue was does the Commerce Clause of the Constitution — which delegates to Congress the power to regulate interstate commerce — empower the Congress to compel people to engage in it by purchasing a health insurance policy. As the late President George H.W. Bush liked to ask: Can Congress force me to eat broccoli?

When the Supreme Court took a preliminary vote after oral arguments on the constitutionality of the individual mandate, the tally was 5 to 4 to invalidate it. Then Chief Justice John Roberts had second thoughts. He saw the polls, which showed Mitt Romney safely ahead of President Barack Obama in the then upcoming presidential race, and Republicans looking good to capture Congress. He reasoned to his colleagues that it would be better for history and the court’s legacy if the political branches invalidated legislation as controversial as the ACA, rather than the court.

So, he went along with the finding that the Commerce Clause does not confer the power to compel entry into interstate commerce, but he needed a way to salvage the individual mandate. Breaking with the five-member conservative majority on the court, he reasoned that while Congress cannot regulate everything under the sun (its powers to regulate are limited by the Constitution), it can tax anything under the sun. So, if the IRS assessment visited upon those who fail to acquire health insurance is a tax, the individual mandate is constitutional.

This was a novel argument, in large measure because the litigants challenging the constitutionality of the individual mandate and the Department of Justice defending it all argued to the court that the IRS assessment was not a tax. President

Obama had promised voters that the federal micromanagement of health care would not add to individuals’ tax burden, and the challengers called the assessment a penalty so as to trigger a hearing for each person as to whom the IRS imposed an assessment.

Can the court characterize a statute as a tax when all the litigants in the case, including the government, have insisted it is not? If a jury is hearing an intersection collision case and all witnesses testify that the traffic light regulating the plaintiff’s vehicle was green, the court must instruct the jury that it may not find that the light was amber or red because the jury and the court are bound by the evidence before them.

But the Supreme Court is infallible because it is final, as Justice Robert Jackson once observed. It can do what it wants and call a penalty or an assessment or a command to eat broccoli a tax. By doing so, the ACA was saved.

Then, in 2016, Donald Trump was elected president, and a Republican Congress in 2017 enacted new tax laws that invalidated the individual mandate; there is no longer any IRS consequence for individuals who fail to obtain health insurance. When the ACA, minus the individual mandate, was challenged last year, a federal judge ruled the ACA unconstitutional because there was no tax in there to salvage it. Notwithstanding President Trump’s views, the Department of Justice defended the Affordable Care Act, as is its lawful obligation.

Now, on appeal, the DOJ says it will not defend Obamacare. It is almost unheard of for the DOJ not to defend on appeal a constitutional challenge to a federal statute, particularly a statute that the Supreme Court has upheld, and especially a statute that the DOJ just finished defending in a trial court. The courts are incredulous, and skeptical, when the DOJ changes its position 180 degrees during a case. That change can seriously undermine the credibility of the DOJ. Also, it can undermine the president’s fidelity to his oath of office — to uphold and defend laws whether he agrees with them or not.

Yet, the present statute is not the same statute that the Supreme Court upheld in 2012. The feds cannot order me to wear a red necktie, but they can tax me if I don’t. No tax, no red necktie. What will the courts do?

Politically, this is a serious problem for Republicans. History shows that once a governmental benefit — here, subsidized health insurance with guaranteed coverage for preexisting conditions, now enjoyed by 21 million Americans — begins to flow, it is nearly impossible politically to stop it.

Thomas Jefferson and Alexander Hamilton, who hated each other, did have one public point of agreement. Namely, if the public treasury becomes a public trough, and the public recognizes that, voters will only send to Washington those who promise to bring home the biggest piece of the pie — even if it is unconstitutional.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Obamacare, Supreme Court 
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Last Sunday afternoon, U.S. Attorney General William Barr released a letter, which he said summarized the report he had received from special counsel Robert Mueller about alleged crimes committed by President Donald Trump. Barr wrote that the president’s exoneration is complete with respect to any conspiracy between the Trump campaign and Russian intelligence to affect the outcome of the 2016 presidential election. He also wrote that though Trump will not be prosecuted by the Department of Justice for obstruction of justice, the special counsel did not exonerate him.

This is a head-scratcher.

The head-scratcher is why Barr revealed any ambivalence on the part of anyone in the DOJ on the issue of obstruction of justice when he needn’t have. As well, under the Federal Rules of Criminal Procedure, he shouldn’t have. Those rules, which prohibit the revelation of evidence for and against prosecution of people not actually prosecuted, also prohibit the revelation of the existence of such evidence, as well as any disagreements among prosecutors over the legal significance of the evidence.

The Barr revelation constitutes the same violation of federal rules and DOJ policy that FBI Director James Comey committed when he announced in the summer of 2016 that Hillary Clinton would not be prosecuted for using private email servers to communicate about classified materials and then revealed that the FBI had convincing evidence against her and then revealed what that evidence was.

When the president learned of the Barr summary of the Mueller report, he naturally rejoiced, and then he thoughtlessly asked for the full Mueller report to be made public. That was a mistake.

Here is the back story.

Barr’s four-page summary of Mueller’s 700-page report claims to have characterized fairly Mueller’s principal conclusions. Yet a careful reading between the lines of those four pages reveals lawyerly language that the president does not want to hear analyzed. Though the president will not be charged with conspiracy to receive something of value from the Russians in order to affect the outcome of a political campaign (a felony), Mueller clearly found some evidence of a conspiracy between the Trump campaign and Russian intelligence (probably the 100-plus communications, some in person, between them), but not enough evidence “to establish” the conspiracy — that is, not enough evidence to prove the existence of the conspiracy beyond a reasonable doubt.

We know Mueller found some evidence of such a conspiracy because if he failed to find any evidence, Barr would have said so. He didn’t.

The second conclusion related by Barr is that Mueller found the evidence against Trump of obstruction of justice (interfering, or attempting to interfere, with an FBI investigation for a self-serving purpose) to be equivocal. That means Mueller found there is evidence that the president obstructed or attempted to obstruct justice and there is equally as strong exculpatory evidence or public policy or credibility reasons for not prosecuting, as well.

Both of these conclusions were made known to Barr three weeks ago, but he revealed them last Sunday.

Why would Mueller punt on the obstruction charge? It is not uncommon for prosecutors to view the same facts and the same law and come to different conclusions about whether a crime can be proven beyond a reasonable doubt. In the conspiracy charge, Mueller concluded he could not prove the case beyond a reasonable doubt. On the obstruction charge, he allowed his boss, Barr, to make the decision about whether to prosecute the president. Such a “kicking the case upstairs” is not uncommon in high-profile cases.

Why Barr revealed all this is a mystery, as it will beat the drum for the release of Mueller’s full report and perhaps the evidence on which that report is based so that members of Congress who want to second-guess Mueller or examine for themselves what evidence of conspiracy and obstruction he found may do so.

What’s next? The Barr letter is a summary of the Mueller report. The Mueller report is itself a summary of the millions of pages of raw evidence Mueller and his team accumulated. That raw evidence consists of grand jury transcripts; FBI notes of interrogations of witnesses; transcripts of wiretaps, emails and text messages; prosecutors’ impressions of the quality of their evidence; and more than 1 million pages of campaign and White House documents voluntarily surrendered to Mueller.

If the 700-page summary of the evidence or the trove of raw evidence on which the summary is based are revealed, there will be much in there for Trump’s adversaries to feast upon. It’s a mistake for the president to call for the revelation of anything that he or his lawyers have not seen.

While the political focus shifts to the House Democrats, the legal focus shifts to Manhattan, where federal prosecutors have an ongoing investigation of the president for election finance fraud. And they have a finding by a federal judge that the criminal conspiracy to evade election finance reporting — to which Michael Cohen pleaded guilty and for which the owner of the National Enquirer received a deal — was orchestrated by the president himself.

Also in Manhattan labors Cy Vance, the Manhattan district attorney. He is investigating allegations of pre-presidential bank and tax fraud against Trump. He can go back to behavior that occurred 10 years ago. He also has a state statute that makes New York the easiest state in the union in which to prosecute financial crimes.

And the Senate Republicans now want to investigate who in the FBI or the CIA abused their legal authority and started all this. But the intelligence community will do its best to stifle them, just as that community stifled Trump from revealing what materials were seen by the secret Foreign Intelligence Surveillance Court. That is another can of worms the contents of which Trump should not want to be seen.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Robert Mueller 
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“When the president does it, that means that it is not illegal.” — Richard M. Nixon (1913-94)

Legal scholars have been fascinated for two centuries about whether an American president can break the law and remain immune from prosecution. During the Civil War, Abraham Lincoln ordered troops to arrest, without warrant, and incarcerate, without due process, many peaceful, law-abiding journalists and newspaper editors — and even a member of Congress — in the Northern states. Wasn’t that kidnapping?

During World War I, Woodrow Wilson ordered federal agents to arrest people who sang German beer hall songs or read aloud from the Declaration of Independence in public. Wasn’t that infringing upon the freedom of speech?
During the Great Depression, Franklin D. Roosevelt ordered banks to confiscate gold from Americans who had purchased and possessed it lawfully. Wasn’t that theft?

In the early 1970s, Richard Nixon used the CIA to spy on Americans and to frustrate the FBI’s efforts to investigate a burglary at the Democratic National Committee’s Watergate headquarters, and then he denied doing any of this. Wasn’t that an invasion of privacy and obstruction of justice and using a federal office for deception? Years after his resignation, Nixon infamously told David Frost in a live interview that no matter what the president does, it is lawful. Where did he get that argument from?

And President Donald Trump has asked Congress for money to condemn real estate and build a border barrier in Texas. Congress said no, yet he plans to spend the money anyway. Doesn’t that violate his oath to uphold the Constitution?

Though there may have been political consequences to each of these presidential acts of lawlessness — there were for Nixon, at least — there were no legal consequences in the form of impeachment or prosecution. The Constitution itself limits impeachment to treason, bribery or other high crimes and misdemeanors.

The “high crimes and misdemeanors” language was interpreted by the House Judiciary Committee in 1974 to include material interference with a governmental function and obstruction of justice and the use of a governmental asset to deceive the public — but not any garden-variety crime, such as bank or tax fraud or kidnapping or invasion of privacy or misappropriation of federal funds.

During the presidency of Bill Clinton and afterward, the Department of Justice ordered research about whether a president could be charged with a crime against his will and while still in office. The DOJ now possesses three scholarly legal opinions on the subject. Two of them say he cannot be prosecuted; one of them says he can. All three are based on the same law and history but employ different deference to the presidency.

Two of those opinions say that if there is probable cause of crime by the president and the time during which the law requires a prosecution to commence — the statute of limitations — would expire while the president is in office, he or she should be indicted while in office but the prosecution should be deferred until he or she is no longer president. One of the opinions, incredibly, mimics the Nixonian president-as-prince idea and basically tells the Department of Justice to forgo prosecution.

Clinton was prosecuted while in office for testifying falsely — lying under oath in a civil deposition, a crime rarely prosecuted — but it was with his consent. Presumably, he consented to the quick prosecution and guilty plea in the final days of his presidency to avoid a costly and prison-exposed post-presidential indictment for more serious crimes.

I have recounted this brief history of presidential lawbreaking as a background to a discussion of the political period I suspect we are all about to enter. That period will commence with the expected release of the report of special counsel Robert Mueller. Under the court rules through which he was appointed, however, his report is not for Congress or the president or the public but rather for the attorney general and those engaged by him to analyze it.

There may be parts of the report that could not lawfully be made public. For example, if a grand jury took testimony about the president’s alleged and denied obstruction of justice related to his firing of FBI Director James Comey — i.e., testimony about whether he did so for a venal or unlawful purpose, such as preventing the FBI from discovering other presidential crimes — and the grand jury decided not to indict the president, the existence of that testimony, as well as its substance, must remain secret under the law. The same is the case for all references to a decision not to indict someone.

That is at least the theory of grand jury secrecy; those not indicted should not have their names dragged through the mud.

Now back to Nixon’s the-president-can-commit-no-crime argument and that DOJ opinion basically agreeing with it. This view of the presidency is imperial. Is the president of the United States so integral to the preservation of the Constitution that he cannot be diverted from that job to the rigors of defending himself or herself in a criminal prosecution?

If the answer is yes, how about when he or she is no longer employed in the defense of the Constitution? If the answer to this question is no, who should be trusted with a get-out-of-jail-free-forever card? And where is that in the Constitution?

Trump once boasted that he could shoot someone on Fifth Avenue in New York in broad daylight and get away with it or pardon himself. I hope this was Trumpian comedic exaggeration. If not, it is the revelation of a dangerous Nixon-like mentality that the rule of law — which requires that no one be above the law’s commands or beneath its protections — applies to everyone but him.

Can the president legally break the law? If he can, we will soon be back to the Nixon days. And we all know how they ended.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump 
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“Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.” — Chief Justice Charles Evans Hughes (1862-1948)

This week, the United States Senate will take a historic vote known as a negation, a statutory procedure whereby Congress nullifies an act of the president. The negation vote is authorized by the National Emergencies Act of 1976, which was written to permit the president to streamline government during an unforeseen crisis.

The act itself fails to define what constitutes an emergency, but the courts — as is their job where a law is ambiguous — have generally defined an emergency as a sudden and imminent threat to life, liberty and property that cannot be addressed by the exercise of ordinary government powers.

When Hurricane Katrina devastated New Orleans, President George W. Bush declared a state of emergency. That declaration enabled him to move government assets and materials to suffering folks without regard to environmental laws, public bidding laws or even local speed limits. But it did not permit him to spend money that Congress had not authorized, nor could he as president exercise any powers that the Constitution delegated to Congress.

President Donald Trump, in his recent declaration of national emergency at the U.S.-Mexico border, ordered the departments of Defense and Homeland Security to spend unused but unauthorized money in their budgets on building a 55-mile steel barrier — “a big, beautiful wall” — along a portion of that border. Because Congress has expressly and explicitly declined to authorize the funds for the construction of such a barrier, we have a constitutional conflict on our hands.

The conflict is more acute than just a difference of opinion. It is an issue for Trump of fidelity to his oath of office. Several of the statutes that Trump will be violating by spending unauthorized money on the border barrier he himself signed into law. In the presidential oath, the president agrees to enforce federal laws “faithfully” — whether he agrees with them or not.

Can the Congress amend the Constitution? Can it cede to the president powers that the Constitution has delegated to Congress? Every time the courts have addressed these questions, they have answered with a resounding NO.

The issue of whether the status of matters at the southern border rises to the level of emergency will soon be decided by a federal court. It will rule if in the present situation there is an A) sudden, B) unanticipated and C) true threat to life, liberty or property that D) cannot be addressed by the ordinary employment of government assets. If a court decides that any of the A through D factors is not present, that is the end of the inquiry; the court will enjoin the enforcement of Trump’s declaration because it does not fit within the definition of an emergency.

But if a court agrees with the president — that the monthslong mass movement of migrants from Mexico to Texas is an emergency that cannot be addressed by ordinary means — it must then address the constitutional issues. Here, the law is clear.

Under the Constitution, only Congress gets to decide how money from the federal treasury shall be spent. When the president has asked for funds — here, to condemn private property and build the barrier — and Congress has said no, he cannot legally go out and spend the funds anyway. Some have argued that Congress has given away some of its powers to appropriate funds to the president during prior emergencies. And some have argued that the existence of an emergency gives new powers to the president. Such arguments betray gross ignorance of the Constitution.

Can the Congress amend the Constitution? The short answer to this is NO. Only three-quarters of the states can amend the Constitution. Yet, for generations, Congress and the president have engaged in a subtle amendment by consent. This has generally occurred when presidents have started wars — a congressional function — and Congress has looked the other way. Without judicial intervention — often nearly impossible because only a member of Congress would have standing to sue — Congress and presidents get away with this.

This amendment by consent is at the core of President Trump’s argument. He and his Republican colleagues in Congress have argued that Congress has given all presidents since 1976 new powers in emergencies. This is not possible under our system of constitutional government, even if all concerned did look the other way with a wink and a nod. Presidential power comes only from the Constitution, not from Congress.

In an ironic sense, those of us who believe that the Constitution means what it says are grateful to President Trump for teeing up this issue, expecting a judicial injunction. But no member of Congress can be faithful to her or his oath of office and still support Trump’s view of extraconstitutional powers.

This week, the Senate can follow the House in voting to prevent President Trump from getting away with this. The price of him doing so far exceeds the construction costs of a border barrier. When a president exercises extraconstitutional power, he violates his oath to be faithful to the Constitution and he strikes at the core principle of the separation of powers. Such a strike irreparably undermines the basic protection of freedom in America itself.

In this case, the freedom being undermined is the right of the people to a government that obeys its own laws. Emergency does not create presidential power; only the Constitution does.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
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In an ideal world, the president of the United States would succeed in negotiating a nuclear arms treaty with a foreign government — and do so with full congressional support; his lawyer would respect the attorney-client privilege and not reveal confidences publicly; Congress would abide the old adage that politics ends where the water’s edge begins and lie low when the president is overseas on a delicate mission; the president would not engage in a grievous constitutional overreach that provokes a congressional negation; no one in his administration would have a top-secret security clearance who failed to be truthful to the law enforcement and intelligence folks investigating him; and the president would not fear RICO.

But we do not live in an ideal world — and all of these issues and events came to our consciousness last week.

Here is the back story.

President Donald Trump traveled to Vietnam last week to engage in negotiations with Kim Jong Un, the dictator of North Korea. Normally, when the president of the United States meets with a foreign leader to consummate an agreement between the countries, the actual meeting is a formality and a public relations triumph.

That’s because normally, emissaries from the two countries have been meeting for months, hammering out the details of an agreement. It is in the private hammering-out that the real work of diplomacy is done, not in the public handshaking and backslapping.

But Trump’s foreign policy approach is anything but normal. Trump knew when he left Washington for Hanoi that there was no agreement between the countries, and he also knew that no agreement was likely. But he believed that the force of his towering personality could produce a meeting of the minds. Most of North Korea is economically desperate and physically starving and wants U.S. economic sanctions lifted. The U.S. is justly fearful of nuclear weapons in the hands of a madman that might be able to reach Los Angeles and wants the weapons gone.

It could be that neither side was willing to budge, or the war-thirsty John Bolton, Trump’s national security adviser — whose views on the use of military force for diplomatic purposes Trump ran against in 2016 — may have prevailed upon his boss.

While the world watched the pseudo-negotiations in Hanoi, House Democrats were conducting a public hearing, over the objections of their Republicans colleagues, about Trump’s alleged unlawful behavior before and while he was president. The sole witness at the hearings was Michael Cohen, a convicted perjurer and Trump’s former lawyer. Cohen claimed personal knowledge of Trump’s alleged — and denied — criminal and fraudulent behavior.

Can a lawyer testify against his own client? What has become of the attorney-client privilege? These are sound questions that were not asked last week because of something called the crime-fraud exception.

Normally, all communications between a client and his lawyer are privileged from revelation. The exception comes when the lawyer can demonstrate that he and the client were together engaged in criminal or fraudulent acts. Cohen alleged as much, made out a basic case supported by documents, gave the Democrats a fertile field of alleged Trump misdeeds to harvest and was permitted to reveal under oath and on national television countless sordid communications he had with Trump, including in the White House.

Trump claimed that Cohen’s explosive allegations actually interfered with his negotiations in Hanoi and were the proximate cause of their failure.

While this was happening, Democrats and Republicans in the Senate were joining their House colleagues in opposition to the president’s expenditure of funds that Congress had expressly declined to authorize. The likely rebuke would come by way of a legal mechanism to negate the president’s emergency declaration, which he claims permits him to spend unused but unauthorized funds on his promised border wall. He would no doubt veto this negation.

While all this was going on, The New York Times revealed that the FBI and the CIA declined to authorize a top-secret security clearance for the president’s son-in-law, Jared Kushner, because they claimed he was less than candid with them and that the president overruled them.

It was lawful for the president to do this, but it was extremely dangerous and profoundly unwise. It undermined the intelligence and law enforcement communities, demeaned those who obtained such clearances by hard work and merit, and has exposed the nation’s most carefully guarded secrets to a person who American intelligence believes is naive and susceptible to foreign inducements to reveal what he knows.

Hidden in the Cohen testimony was an oblique reference to alleged bank and tax fraud that Cohen claimed he helped Trump commit, contributed to Trump’s wealth and has the present interest of federal prosecutors in Manhattan. Many of these events took place more than five years ago and thus are not subject to federal prosecution, so why would prosecutors be interested in them?

Here is where RICO comes in. RICO is the acronym for a Nixon-era federal statute, the Racketeer Influenced and Corrupt Organizations Act, originally enacted to target the mob. It permits federal prosecutors to reach back 10 years to find any two criminal acts, which need not be proven beyond a reasonable doubt; prosecutors need only demonstrate that they were more likely than not to have occurred. Then the feds can seize three times the wealth that the perpetrators of these schemes amassed. That could bankrupt Trump.

The president has serious and powerful tormentors whom he cannot overcome by mockery alone. He needs to do more than demean them with acerbic tweets, because many of those tormentors can legally cause him real harm. He needs to address these issues soberly, directly and maturely. Can President Trump survive all this? Yes — but not if he has another week like the last one.

Copyright 2019 Andrew P. Napolitano.

 
• Category: Ideology • Tags: Donald Trump, North Korea, Robert Mueller 
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.