All posts by Judge Andrew Napolitano

A graduate of Princeton University and the University of Notre Dame Law School, Judge Andrew P. Napolitano 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, during which time he presided over 150 jury trials and thousands of motions, sentencings and hearings. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. Judge Napolitano began television work in the same year. As Fox News’ Senior Judicial Analyst, Judge Napolitano broadcasts nationwide on the Fox News Channel and the Fox Business Network throughout the day, Monday through Friday. He hosts “FreedomWatch” on Fox Business Network seven days a week. Judge Napolitano also 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. The Judge is the author of five books on the U.S. Constitution, including his most recent bestseller, "Lies the Government Told You: Myth, Power, and Deception In American History."
Politics, US

Judge Napolitano: Can the President Lawfully Investigate His Investigators?

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This past weekend, President Donald Trump suggested that his presidential campaign may have been the victim of spies or moles who were FBI informants or undercover agents. He demanded an investigation to get to the bottom of the matter.

At the same time that the president was fuming over this, Republican congressional leaders were fuming about the reluctance of senior officials at the Department of Justice and the FBI to turn over documents that might reveal political origins of the current criminal investigation of the president by special counsel Robert Mueller.

Can the president intercede in a federal criminal investigation of which he himself is a subject? Can Congress intercede in a DOJ criminal investigation?

Here is the back story.

Mueller was named special counsel so he could investigate serious and demonstrable evidence of Russian government interference in the 2016 presidential election. Because the Trump campaign met with Russian intelligence officials offering campaign assistance, implicit in that investigation is an inquiry into whether the Trump campaign invited foreign interference and agreed to accept or facilitate it.

Mueller is seeking to determine whether there was an agreement between the Trump campaign and any foreign person, entity or government to receive anything of value for the campaign. Such an agreement plus a material step in furtherance of it taken by any of those who joined the agreement would itself constitute the crime of conspiracy, even if the agreed-upon thing of value never arrived.

In the course of examining evidence for the existence of this alleged conspiracy — which Trump has forcefully denied many times — Mueller’s prosecutors and FBI agents have come upon evidence of other crimes. They have obtained 19 indictments — some for financial crimes, some for lying to FBI agents and some for foreign interference in the election — and four guilty pleas for lying, in which those who pleaded guilty agreed to assist the government.

Nine of the indictments are against Russian intelligence agents, whom the president himself promptly sanctioned by barring their travel here and their use of American banks and commercial enterprises, even though he has called Mueller’s investigation a witch hunt.

Mueller has also come upon evidence of obstruction of justice by the president while in office and financial crimes prior to entering office, all of which Trump has denied. Obstruction of justice consists of interfering with a judicial proceeding — such as a grand jury’s hearing evidence — for a corrupt purpose.

Thus, if Trump fired FBI Director James Comey because he didn’t trust him or because he wanted his own person in that job, that was his presidential prerogative, but Trump’s purpose was corrupt if he fired Comey because Comey would not deny that the president was the subject of a criminal investigation — a basis for firing surprisingly offered publicly by one of the president’s own lawyers.

The potential financial crimes appear to be in the areas of bank fraud — making material misrepresentations to banks to obtain loans — and money laundering, or the passage of ill-gotten gains through numerous bank accounts so as to make the gains appear lawful. These, too, Trump has denied.

It seems that the deeper Mueller and his team dig the more they find. As lawyers and as federal prosecutors, Mueller’s team members have ethical obligations to uncover whatever evidence of crime they come upon and, when professionally feasible and legally appropriate, either prosecute or pass the evidence on to other federal prosecutors, as they did in the case of evidence of fraud against Michael Cohen, a former confidant and lawyer for Trump before he was president.

Now, back to Trump’s eruption about FBI spies or moles.

The president cannot interfere with criminal investigations against himself without running the risk of additional charges of obstruction of justice — interference with a judicial process (the gathering of evidence and its presentation to a grand jury) for a corrupt purpose (impeding his own prosecution or impeachment). Nor can members of Congress see whatever they want in the midst of a criminal investigation, particularly if they might share whatever they see with the person being investigated.

Prosecutors have a privilege to keep their files secret until they reach the time that the law provides for them to go public. Because Mueller is faced with the legal equivalent of assembling a 10,000-piece jigsaw puzzle, he is not yet ready to show his cards. If his cards contain materials from confidential sources — people whose identities he promised not to reveal — or if his cards contain evidence he presented to a grand jury, he may not lawfully reveal what he has until it is time to exonerate the president, indict him or present a report to Mueller’s DOJ superiors that is intended for the House of Representatives.

Can the president investigate his investigators?

Yes — but not until the investigation of him is completed. That’s because no one can fruitfully examine the legitimacy of the origins of the case against Trump without knowing the evidence and the charges. Trump’s allegations are of extreme scandal — the use of FBI assets by the Obama administration to impede his presidential campaign. Yet if he is exonerated, those allegations will lose their sting. If he is charged with crimes or impeachable offenses that do not have their origins in politically charged spying, then his allegations will be moot.

But if he were to force the DOJ to turn over raw investigative files now to politicians who want to help him, he might very well be impeding the criminal case against him. That would be profoundly threatening to the rule of law, for it provides that no man can be the prosecutor or the judge in his own case. Even Trump’s lawyers acknowledge that he could not lawfully do that.

Opinion, States Rights

Judge Napolitano: Bradley, Call Your Bookie

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In 1992, Congress passed a statute authored by then-Sen. Bill Bradley of New Jersey, who was a former Princeton University and New York Knicks basketball superstar, prohibiting the states from authorizing sports betting. At that time, gambling in Atlantic City was flourishing, and notwithstanding one of its own senators’ efforts to keep gambling away from competitive sports, the state of New Jersey wanted to duplicate Las Vegas’ success with sports betting.

When Bradley’s legislation grandfathered the state of Nevada, legislators in New Jersey came up with an idea to get around the federal legislation that would permit Atlantic City casinos to compete with those in Las Vegas by repealing all laws about sports betting, thereby escaping the federal prohibition on “authorizing” sports betting. It would be up to the casinos to set up their own betting parlors for college and professional sports, and in so doing, they could increase their own bottom lines and thus the state’s tax revenues.
When major professional sports leagues and the NCAA challenged this, a federal district court in Newark read the ‘thou shalt not authorize’ language to mean ‘thou shalt not permit under any circumstances.’ That ruling was upheld by a federal appeals court in Philadelphia, and New Jersey appealed its case to the U.S. Supreme Court, which ruled in its favor earlier this week.

Get ready to call your bookie.

The Supreme Court decision reinforces the anti-commandeering jurisprudence of the 10th Amendment, which was dormant from the New Deal era to the mid-1990s. Recall that the states formed the federal government, not the other way around. When they did so, they delegated certain areas of governmental authority to the feds, and as new states were added to the Union, they did the same.

The 10th Amendment is the constitutional recognition of the truism that the legislative powers that the states did not delegate to Congress they retained for themselves.
The anti-commandeering jurisprudence prohibits Congress from telling the states how to govern or legislate or spend their tax dollars in any governmental areas not delegated to the Congress. This congressional practice was condemned in a case called Printz v. United States, in which Congress had ordered state law enforcement officials to establish certain gun registration protocols consistent with congressional standards and made state legislatures pay for the enforcement of the protocols.

The Supreme Court, through the late Justice Antonin Scalia, characterized this federal legislation as “commandeering” — taking the discretion away from — state officials and legislatures. The Supreme Court’s sports gambling decision this week followed the rationale of the Printz case and characterized the federal legislation that prohibited the states from permitting sports gambling as commandeering their legislative processes.
The reason that federal commandeering of state legislative processes is unconstitutional — Justice Samuel Alito’s sports betting opinion likened commandeering to having a federal agent on the floor of each state legislature give a thumbs-up or -down to proposed legislation — is that it flies in the face of the Guarantee Clause of the Constitution.
That clause guarantees a representative form of government in each state. A representative form of government requires that the representatives in the government be free to vote their consciences and not be prohibited or restrained from doing so because of a federal command.

Did Bill Bradley make a mistake?

I am a longtime fan and friend of Sen. Bradley’s, notwithstanding our general ideological differences over the constitutional role of government in our lives. Bradley is smart, fair and open-minded, and I miss him in the public forum. Yet he ought to have known that the legislation he authored was unconstitutional, and he ought to have known that Congress could have outlawed sports betting had it chosen to do so.

Had Congress made sports betting criminal — which it has not yet done — the sports gambling case this week would have been moot. Congress undoubtedly has the power under the Commerce Clause to prohibit any item from interstate commerce that it wishes, and it could have done so to communications that further sports betting. But of course, federal laws cost the feds money to enforce, and Congress did not want to foot that bill — hence Bradley’s scheme of transferring the cost of preventing sports betting to the states.
If Congress had outlawed sports betting, such a law would not have implicated the anti-commandeering jurisprudence because it would have been a restraint on individual personal behavior and not a restraint on the discretion of state law enforcement or elected state representatives.

What are the unintended consequences of this ruling?

All of this bodes well for the independence of the states in the areas where they are free to govern. There, they can be laboratories of democracy, dependent upon the public sentiment of their voters and the freely exercised consciences of their state representatives.

In an odd couplet, however, it also helps the sanctuary city movement, insofar as that movement purports to require that state and local law enforcement agencies not actively enforce federal immigration laws or policies because compelling them to do so would violate anti-commandeering jurisprudence. The commandeering would consist of removing the discretion of state and local law enforcement as to the disposition of law enforcement resources and the discretion of state legislatures as to how state tax revenue is spent.
And all of this underscores the wisdom of the Framers, who created a federal union that, even after the Civil War, is still subject to the sovereignty of the states. The beauty of the Union is that no two states are alike and we can all get ourselves to states where the laws are more to our liking. Ronald Reagan once whimsically captured these constitutional values when he argued that only in America can you vote with your feet.

Opinion, US

Judge Napolitano: Prosecutors and the Rule of Law

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Late last week, a federal judge in Alexandria, Virginia, questioned the authority of special counsel Robert Mueller to seek an indictment and pursue the prosecution of former Trump campaign manager Paul Manafort for alleged financial crimes that, according to the indictment, began and ended well before Donald Trump ran for president. Mueller was appointed special counsel by Deputy Attorney General Rod Rosenstein because of allegations that Rosenstein accepted of a conspiracy by members of the Trump campaign to accept assistance from a foreign person, entity or government, which is a felony.

The application by Manafort’s lawyers before Judge T.S. Ellis III was actually a motion to dismiss the indictment against Manafort for want of jurisdiction. Stated differently, Manafort argued that Mueller exceeded the authority granted to him by the Department of Justice and thus he has no legal ability — jurisdiction — to prosecute Manafort. During the course of the oral argument on this motion, the judge opined that in his view, Mueller is only prosecuting Manafort for bank and tax fraud to squeeze him to testify against President Trump on matters that might be impeachable.

The judge’s comments as to Mueller’s motivation are dicta. Dicta are the unsolicited, unnecessary and often personal opinions of the court on matters not strictly before the court and not integral to the court’s ruling. Stated differently, there is an abundance of speculation in the media but zero evidence in the record before Judge Ellis — zero — on which he could base his opinion; and his opinion of the prosecutor’s motivation is irrelevant. It made national headlines because Trump supporters agree with it, and it is probably accurate — but it is legally meaningless.

Even if Judge Ellis were to dismiss the indictment against Manafort for want of Mueller’s jurisdiction, the dismissal would mean only that Mueller cannot prosecute Manafort, not that Manafort cannot be prosecuted on these charges.

If the present indictment were to be dismissed, the local federal prosecutors in Alexandria would present the Mueller-gathered evidence against Manafort to another grand jury and ask it to issue a new indictment that makes the identical charges as those now pending. Then they would prosecute Manafort on the same charges that Mueller originally brought. The financial crimes charged, though unrelated to Mueller’s initial duty of looking for a conspiracy between the Trump campaign and foreigners, are real, and no federal prosecutors with jurisdiction could ethically overlook them.

Judge Ellis’ actual ruling — clouded by the fog of his dicta — gave Mueller two weeks to demonstrate his lawful jurisdiction. He can easily do that with a letter from Rosenstein. The letter can even be retroactive. Thus, all this focus on Judge Ellis’ personal opinion of Mueller’s motivation is much ado about national politics and has little to do with the rule of law. Who cares what a judge thinks about the motivations of the prosecutors?

The practice of indicting a person for a matter utterly unrelated to the core of the government’s investigation in order to turn the indicted person into a government witness, though often repellant, is commonplace and has received approval by numerous Supreme Court opinions. Clearly, obtaining a guilty plea from retired Lt. Gen. Michael Flynn, the president’s former national security adviser, for lying to FBI agents about the existence of a lawful telephone conversation and obtaining a guilty plea from Rick Gates, Manafort’s former business partner and deputy Trump campaign manager, for lying about who said what at a lawful meeting are parts of a plan to get these folks to give evidence or testimony about the president that prosecutors want to hear.

I have characterized this prosecutorial behavior as extortion or bribery, but I am in a small minority in the legal and judicial communities. The courts have made clear that prosecutors can nullify prison exposure by reducing charges to induce the testimony they want from a witness. Yet if defense counsel gave the same witness so much as a lollipop to shade his testimony, both would be indicted for bribery.

All this leads to the question: How independent are these prosecutors? The modern, post-Nixon Department of Justice has a little bit of unaccountability intentionally built into it based on natural law principles of right and wrong and on fear of an imperial presidency. President Richard Nixon believed he could do as he pleased with his DOJ — and even boasted that if he did something, by definition it was not unlawful.

But prosecutors have ethical and moral obligations to prosecute crimes, and those duties transcend politics. Suppose President Trump told prosecutors not to prosecute his former friend Harvey Weinstein or his former lawyer Michael Cohen? I expect they would rightly ignore him.

I know this argument offends the belief of many of my colleagues that the Constitution gives the president sole and total command over all behavior in the executive branch of the federal government. But the natural law is superior to the Constitution and superior to the government.

The natural law teaches that through the exercise of reason, we know in our hearts what is right and what is wrong. Some things are right no matter what the government says, and some things are wrong no matter what the government says. The limited quasi-independence of the modern Department of Justice, born in the ashes of a presidency that publicly proclaimed that it could do no wrong, is a hallmark to these principles.

I offer these arguments because it now appears that the feared clash between President Trump and special counsel Mueller will soon come to a head, and one can only hope that the rule of law will prevail. But the rule of law is only a safeguard of our liberties when the people in whose hands we repose it for safekeeping are faithful to it though, in the motto of the DOJ, the heavens fall.

Opinion

Judge Napolitano: Troublesome Questions for President Trump

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In a startling revelation earlier this week, The New York Times published what it claims are 49 questions that special counsel Robert Mueller sent to lawyers for President Donald Trump. The questions are apparently a road map of inquiry that Mueller and his prosecutors and FBI agents plan to put to the president if the president agrees to sit down for an interview with them.

I have been arguing for months that the president should not agree to an interview with Mueller. My reasons are fairly boilerplate: It is nearly impossible to talk prosecutors who are determined to seek an indictment into changing their minds. As well, the person being interviewed cannot possibly know as much about the case as the team doing the interview, and he will be prone to error.

In the interview environment, one small lie can result in one big headache of an indictment, even if the lie is about an extraneous matter. When federal prosecutors question a potential defendant, who appears voluntarily and is not under oath, the questioners can lie to the person being interviewed, but he cannot lie to them without risk of indictment. Just ask Martha Stewart. This is exquisitely unfair, but it has been federal law for generations.

The Supreme Court has ruled that federal prosecutors and FBI agents can use trickery, deceptions and outright falsehoods — even disguises, verbal traps and fraud — to help them extract information from a witness or person they are investigating. Given the president’s well-known propensity to talk at length on many disjointed matters and to think both aloud and unfiltered — witness his 30-minute unannounced telephone interview on live cable television with my colleagues on “Fox & Friends” last week — there is a very serious danger that he would contradict himself and even contradict facts for which the special counsel has hard evidence.

Donald Trump is the subject of a criminal investigation. When prosecutors interview a person they are investigating, it is to help the investigation, not the subject of it.

As if all of this were not enough to dissuade a self-confident Trump from sitting down with an all-knowing Mueller and his crew, now come the 49 questions Mueller has told Trump’s lawyers he wants to ask the president. Though many of these at first blush appear not to challenge the president’s memory or command of facts, consider a deeper analysis.

There are two species of questions here. One set of questions is intended to get the president off on a disjointed monologue to see whether he — as he did on “Fox & Friends” — will admit to something without actually being accused or even asked about it. The others are questions to which Mueller already knows the answers and for which he has irrefutable hard evidence — and the quest is to see whether the president will be truthful.

As well, both types of questions are mere starting points — intended to lull Trump into a comfortable but false sense of security — which would then be followed with curveballs he would have great difficulty trying to hit.

One of Mueller’s questions is profound, and I have not seen anything like it in all the literature and legal arguments preceding the Times’ revelation this week: “What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?”

Prosecutors need a factual or good-faith basis to trigger their questions. This question goes to the heart of the so-called collusion issue. I say “so-called” because “collusion” is a media and a political word; it does not describe anything in the law. What Mueller is looking for is a conspiracy, which is the easiest crime for prosecutors to prove because the crime need not have been successful. The late Justice Robert Jackson, himself a former U.S. attorney general, famously called conspiracy prosecutors’ favorite crime.

The essence of conspiracy is an agreement — here, an agreement to accept campaign assistance from a foreign person, entity or government, which is illegal, even if the assistance never arrived. The essence of the crime is the agreement, not the receipt of something of value. The conspirators need not have met together or even be known to each other, providing at least one of them took at least one material step — such as a phone call or a meeting with Russians offering help — in furtherance of the agreement.

If there is truth underlying this question — if Mueller has hard evidence that the true answer is “yes” — it could only have come to Mueller from Rick Gates, Manafort’s former business partner and co-defendant and now Mueller’s star witness. Gates could have told Mueller in return for Mueller’s dropping charges against him that Manafort reached out to the Russians, in which case Mueller would want to test Trump’s knowledge, understanding and truthfulness on this white-hot issue.

If Trump were to answer “no” and Gates told the grand jury that Trump did know of this, Mueller could claim Trump lied and ask the same grand jury to indict Trump for that. If Trump were to answer “yes,” that would be the end of his presidency. If he were to give a rambling non-answer, Mueller would make the most of it.

Are prosecutors fair? Many are, but their common view is that they need not always be fair because they are after bad guys who don’t play by the rules. To the prosecutorial mind, it is for judges and juries to be fair.

What should Trump do? He should go about the business of being president. He should do what is most difficult for him: stay silent. Don’t trust a man who owns a grand jury. Don’t help him undo your presidency.

Featured, Opinion, US

Judge Napolitano: War and the Separation of Powers

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A popular way to begin the first day of class in constitutional law in many American law schools is to ask the students what sets the U.S. Constitution apart from all others. Usually, they answer that it’s the clauses that guarantee the freedom of speech, privacy and due process.

Yes, each of those guarantees — if upheld — is vital to restraining government, but the overarching and most important unique aspect of the Constitution is the separation of powers. The constitutions of many totalitarian countries pay lip service to free speech, privacy and due process, but none has the strict separation of powers that the U.S. does.

Under our Constitution, the Congress writes the laws, the president enforces them and the courts interpret them; and those powers and functions may not constitutionally be mixed or exchanged. The Congress also declares war. The president also wages war. The courts also invalidate the acts of the other two branches when they exceed their constitutional powers.

The Supreme Court has ruled that the separation of powers is integral to the Constitution not to preserve the prerogatives of each branch of government but to divide governmental powers among the branches so as to keep power diffused — and thereby limited and protective of personal freedom.

James Madison, who wrote the Constitution, wanted not only this diffusion by separation but also tension — even jealousy — among the branches so as to keep each in check.

Thus, even if one branch of government consented to ceding an essential power to another branch, such a giveaway would be unconstitutional, the Supreme Court has ruled, because the core functions of each branch of the federal government may not be delegated away to either of the other two without violating the separation of powers.

I am writing about this not as a history or constitutional law mini-lesson but rather because it’s necessary background information to address a real and contemporary problem. Two weeks ago, on the basis of evidence so flimsy that his own secretary of defense rejected it — and without any legal or constitutional authority — President Donald Trump dispatched 110 missiles to bomb certain military and civilian targets in Syria, where the president argued the Syrian government manufactured, stored or used chemical weapons.

Trump did not seek a congressional declaration of war, nor did he comply with the U.N. Charter, a treaty to which both the U.S. and Syria are signatories. Though Trump did not articulate any statutory basis for his use of the military, his predecessors often cited as legal support for their unconstitutional uses of military force two statutes — one enacted in 2001 and the other in 2002, each known as the Authorization for Use of Military Force, or AUMF.

The AUMFs refer to either the Taliban or al-Qaida or their affiliated forces in Afghanistan or Iraq as targets or to pursuing those who caused the attacks in America on 9/11 or those who harbor weapons of mass destruction.

Can the president legally use military force to attack a foreign land without a serious threat or legal obligation or a declaration of war from Congress? In a word: No. Here is the back story.

The Constitution is clear that only Congress can declare war and only the president can wage it. Federal law and international treaties provide that — short of defending the country against an actual attack — without a congressional declaration of war, the president can only constitutionally use military force to repel an enemy whose attack on America is imminent or to defend U.S. citizens and property in foreign lands from foreign attack or in aid of an ally pursuant to a treaty with that ally.

In the case of Trump’s bombing Syria earlier this month, none of those conditions was met.

Prior to the strike on Syria — but no doubt prodded by the prospect of it — a bipartisan group of senators offered legislation supported by the president that would rescind both AUMFs, which are now seriously outdated and of no useful moral or legal authority, in favor of an unconstitutional mishmash that would permit a president to strike whomever and wherever he pleases. The president would be restrained only by a vote of Congress — after hostilities have commenced.

Such a statute would give the president far more powers than he has now, would directly violate Congress’ war-making powers by ceding them away to the president, would defy the Supreme Court on the unconstitutionality of giving away core governmental functions, would commit the U.S. to foreign wars without congressional and thus popular support, and would invite dangerous mischief by any president wanting to attack any enemy — real or imagined, old or new — for foreign or domestic political purposes, whether American interests are at stake or not.

The proponents of this legislation will argue that Congress would retain its war-making powers by its ability to restrain the president. That is a naive contention because congressional restraint, which can come only in the form of prohibitory legislation or withdrawal of funds, would certainly be met by a presidential veto — and a veto can be overridden only by a two-thirds vote of both the House and the Senate.

What’s going on here? It is little more than the lust of the military-industrial complex and its allies in both major political parties in Congress for war. War unifies disparate politics, arouses deep patriotic instincts, enhances the government’s success in obtaining the people’s sacrifices, enriches arms-makers and kills innocents. War is the health of the state.

The Constitution, written in war’s aftermath, strictly limits its offensive use only to when the people’s representatives in Congress have recognized a broad national consensus behind it.

When Donald Trump ran for president, he condemned foreign wars that have served no real American purpose and he condemned presidential war-making; and he promised to end both. Where is that Donald Trump today?

Opinion

Judge Napolitano: The Real Threat to Donald Trump

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In the midst of worrying about North Korea, Syria and Democrats taking control of the House of Representatives this fall, President Donald Trump is now worrying about a government assault on his own business, which targeted his own lawyer.

Michael Cohen has been the personal lawyer for Trump and for the Trump Organization — the umbrella corporation through which Trump owns or manages nearly all entities that bear his name — for many years. Cohen is so closely connected to the Trump Organization that one of his two law offices is located on the 26th floor of Trump Tower, just a few doors from the corner office formerly occupied by Trump himself.

On Monday, shortly before dawn, a team of FBI agents bearing a search warrant from a federal judge broke in to the offices of the Trump Organization and removed computers, files, tax returns and telephones from Cohen’s office. At about the same time, three other teams of FBI agents performed raids. One was at another of Cohen’s offices a few blocks away, and his vacant New York City apartment and hotel rooms he had been occupying were searched, too; and agents also seized personal and professional files and equipment from those venues.

Did the FBI lawfully break in to the headquarters of the president’s family business and cart away files and equipment from his lawyer, as well as legal and financial files of the president himself? The short answer is: yes.

Here is the back story.

In October 2016, when the federal government began its investigation of alleged attempts by the Russian government to interfere with the 2016 presidential election, then-Attorney General Loretta Lynch managed the work.

After Trump became president and Jeff Sessions became attorney general and Sessions recused himself from this investigation, the No. 2 person in the Department of Justice appointed former FBI Director Robert Mueller as special counsel in charge of the Russia investigation. The investigation in Washington is 18 months old and has been run by Mueller for about 11 months.

If a criminal investigation stumbles upon evidence of crimes substantially removed by geography or subject matter from the location and principal responsibilities of the investigation, it is the prosecutors’ duty either to prosecute those crimes if feasible or to pass whatever evidence has been found on to another prosecutor closer to the place of the alleged crime.

Sometimes, keeping that evidence is a temptation too great to resist. That’s because one of the techniques that prosecutors in America use to gather evidence about a crime is to indict those at the fringes of the behavior they are investigating and then attempt, by coercion and bribery, to turn those indicted individuals into cooperating witnesses. Sometimes the indicted crime is truly at the fringes, both rationally and geographically. But the targets of these fringe prosecutions are rarely attorneys who are representing a person who is a subject of the investigation.

Until now.

Though Cohen does not represent Trump in the Mueller investigation, he does represent him in nearly all other legal matters, and his files contain a treasure-trove of confidential and financial materials from and about Trump. Judges are very reluctant to sign search warrants authorizing the seizure of legal files, with two exceptions.

The first is the so-called crime/fraud exception. Under this rule, if the client is using his confidential communications with his lawyer to further an ongoing crime, fraud or tort, the communications are not privileged, and evidence of them may be seized.

The other exception is the independent criminal activity of the lawyer. That appears to be the case here. It seems that Cohen — who claims he borrowed $130,000 from a bank to pay an adult-film actress to remain silent about her relationship to Trump, which Trump denies was sexual — did not tell the bank from which he borrowed the funds the true purpose of the loan.

If so, that may be evidence of bank fraud on Cohen’s part. If he wired those funds over interstate lines, that is evidence of wire fraud. If he used the U.S. Postal Service to facilitate a material part of the deal with the actress, that would be considered mail fraud. Each of these fraud charges carries a prison term of five years.

When FBI agents arrive for a raid, they rarely take the time to examine fully all the documents they have seized — even if the documents are protected by the attorney-client privilege and even if the client is the president of the United States. Needless to say, there are safeguards in place to prevent the prosecutors who dispatched the agents from viewing the privileged materials.

When Mueller in Washington came upon evidence of Cohen’s bank fraud in Manhattan, he passed it along to the U.S. attorney’s office in Manhattan. That office — not Mueller — examined the evidence and obtained the search warrants for Cohen’s personal and professional premises, authorized the raids of those premises and received the fruits of the raids.

What will become of Cohen? Federal prosecutors in Manhattan will now decide whether to ask a grand jury to indict him on the fraud charges, and if he is indicted, Mueller will enter the picture looking to make a deal.

Trump’s lawyer was Mueller’s bait.

All of this has understandably infuriated Trump. His rights as a client were violated. His attorney of many years and on many matters will soon be a defendant. Can Trump restrain himself from offering to pardon those who could harm him or firing those who are tormenting him or waging war against real or imagined enemies? Will his anger, frustration and disgust at the violation of his financial and personal privacy push him and America into what even congressional Republicans fear would be a constitutional crisis?

The potential failure of self-restraint is the real threat he now faces.

US

Judge Napolitano: What Is Robert Mueller Looking For?

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Robert Mueller is the special counsel appointed by Deputy Attorney General Rod Rosenstein in May 2017 to probe the nature and extent of Russian interference in the 2016 presidential campaign. The investigation began in October 2016 under President Barack Obama when the FBI took seriously the boast of Carter Page, one of candidate Donald Trump’s foreign policy advisers, that he had worked for the Kremlin.

The FBI also had transcripts of telephone conversations and copies of emails and text messages of Trump campaign personnel that had been supplied to it by British intelligence. Connecting the dots, the FBI persuaded a judge on the Foreign Intelligence Surveillance Court to issue a search warrant for the surveillance of Page, an American.

Page never registered as a foreign agent, and working for the Kremlin and not registering as a foreign agent is a crime for which the FBI should have investigated Page. Such an investigation would have included surveillance, but not from the FISA court. Surveillance in a criminal case requires a search warrant from a U.S. District Court based upon the constitutional requirement of probable cause of crime — meaning that it is more likely than not that the thing to be searched (internet and telephone communications) will produce evidence of criminal behavior.

But the FBI didn’t seek that. Instead, it sought a warrant to surveil Page’s communications based on the Foreign Intelligence Surveillance Act standard, which is probable cause of communicating with a foreign power. This lower, easier-to-demonstrate and unconstitutional standard is the tool of choice these days for FBI agents because it requires less effort and is used in a court that grants 99.9 percent of search warrant applications.

[Also Watch: Reality Check: GOP Memo and FISA Problems]

The temptation to use the FISA court and its easy standard instead of a U.S. District Court and its privacy-recognizing constitutional standard to get a search warrant is often too much for the FBI to resist. This is a form of corruption because it presents a path for criminal investigators to invade the privacy of Americans that the Constitution protects.

Yet the FBI used whatever it learned from the surveillance of Page to get that surveillance extended. Even the Trump Department of Justice went to the FISA court to spy on Page. Lost in all this is the purpose of FISA — to prevent government surveillance of Americans and limit it to agents of foreign powers.

When Jeff Sessions became attorney general, he recognized that he himself would most likely be a witness in the Mueller investigation because of his involvement in the Trump campaign, so he removed himself from all matters pertaining to Russia, and his deputy, Rosenstein, appointed Mueller to run the investigation.

What is Mueller looking for?

When the feds are examining a potential crime committed by a group, their treasure-trove of evidence can often be a member of the group who reveals the criminal behavior of his former colleagues. That’s why the feds often indict people for crimes that appear to be irrelevant to the ones they are investigating — in this case, lying to the FBI and bank fraud allegedly committed before the 2016 election.

When such an indicted person can then be persuaded to turn on his former colleagues in return for a lesser charge or a lighter sentence, prosecutors can have a field day. This is a form of bribery — you tell us on the witness stand what we want to hear and we’ll go easy on you — that is permitted only to prosecutors; and the courts condone it. If defense counsel gave as much as a lollipop to a witness to shade his testimony, both would be indicted.

From the backgrounds of those whom Mueller’s grand juries have indicted and from the deals they have cut with him, it appears that Mueller is looking at three areas of potential criminal behavior. Mueller has already established as a base line the saturation of the 2016 presidential campaign by Russian intelligence agents. If his indictments of these Russians are accurate, they were here virtually and physically and they spent millions to help Trump. But the indicted Russians are not coming back to the U.S. for their trials.

Mueller is examining their potential American confederates for the crime of conspiracy — or, as my colleagues in the media call it, collusion. This would be an agreement by campaign officials to accept something of value from a foreign person, entity or government, even if the thing of value — for example, Hillary Clinton emails — was never actually delivered. The crime is the agreement, and it is prosecutable after at least one of those who agreed takes a material step in furtherance of the agreement.

Mueller’s second area of examination is possible obstruction of justice by President Trump himself. Obstruction is the interference with a judicial proceeding for a corrupt purpose. Was FBI Director James Comey fired because Trump couldn’t work with him or because he was hot on the president’s trail and Trump wanted to impede that? If it was the former, it would have been licit. If it was the latter, it could have been criminal.

The third of Mueller’s areas is financial dealings by the pre-presidential Trump. These bear little surface relationship to Russian involvement in the campaign, yet evidence of wrongdoing must have come to Mueller from his FBI agents or his cooperating witnesses, and he is following the money as prosecutors do.

Where will all this go? The president cannot seem to find an experienced criminal defense lawyer. Mueller has 16 experienced federal prosecutors and a few dozen FBI agents passionately at work. And he also has witnesses he legally bribed and a few hundred thousand documents from the White House and from Trump’s financial affairs that the president has not personally reviewed.

And now Mueller wants to interview the president. Who will have the upper hand if that happens?

Opinion

Judge Napolitano: Hope for the Dead

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What is the connection between personal freedom and rising from the dead?

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 speeches and pamphlets and editorials was not “safety” or “taxes” or “peace”; it was “freedom.” Two acts of Parliament assaulted freedom and broke the bonds with the mother country irreparably.

The first was the Stamp Act, 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’s 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 our Constitution requires. Rather, they granted authority for the bearer to search wherever he pleased and seize whatever he wanted — as FISC warrants do today, in contravention of our Constitution.

The second intolerable act was the imposition of a tax to pay for the Church of England, which all adult male property-owning colonists were forced to pay, no matter their religious beliefs.

The Stamp Act assaulted the right to be left alone in the home, and the Church of England tax assaulted 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 and the courts permit it to do so. Sometimes it is subtle, as when the government borrows or prints money to pay its bills and, as a result, all the money and assets we already have 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 email and text messages and listens to our phone calls without a search warrant based on constitutional norms and denies it.

Freedom is the ability of every person to exercise free will without a government permission slip or watchdog. Free will is a 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 the 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 is 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 this horrific event, 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, three days after He died, He did rise 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 will from the oppression of the government. And after death, we can rise to be with Him.

Easter, which manifests human immortality, is the linchpin of human existence. With it, life is worth living, no matter its 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.

Jesus is the hypostatic union — not half God and half man and not just a godly good man and not God connected to a man but truly and fully God and, at the same time, truly and fully man. When the Roman government killed the man Jesus, it killed God. When the man Jesus rose from His tomb, God rose from the dead.

What does Easter mean? Easter means that there’s hope for the dead. If there’s hope for the dead, 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.

Opinion

Judge Napolitano: March Madness, Washington-Style

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For the past few days, the nation’s media and political class have been fixated on the firing of the No. 2 person in the FBI, Deputy Director Andrew McCabe. McCabe became embroiled in the investigation of President Donald Trump because of his alleged approval of the use of a political dossier, written about Trump and paid for by the Democrats and not entirely substantiated, as a basis to secure a search warrant for surveillance of a former Trump campaign adviser who once boasted that he worked for the Kremlin at the same time that he was advising candidate Trump.

The dossier itself and whatever was learned from the surveillance formed the basis for commencing the investigation of the Trump campaign’s alleged ties to Russia by the Obama Department of Justice, which is now being run by special counsel Robert Mueller and has been expanded into other areas. The surveillance of the Trump campaign based on arguably flimsy evidence put McCabe into President Trump’s crosshairs. Indeed, Trump attacked McCabe many times on social media and even rejoiced when Attorney General Jeff Sessions fired him at 10 p.m. last Friday, just 26 hours before his retirement was to have begun.

Why the fixation on this? Here is the back story.

After the unlawful use of the FBI and CIA by the Nixon administration to spy on President Nixon’s domestic political opponents, Congress passed the Foreign Intelligence Surveillance Act in 1978. This statute outlawed all domestic surveillance except that which is authorized by the Constitution or by the new Foreign Intelligence Surveillance Court.

That court, the statute declared, could authorize surveillance of foreigners physically located in the United States on a legal standard lesser than that which the Constitution requires. Even though this meant Congress could avoid the Constitution — an event that every high school social studies student knows is unconstitutional — the FISC enthusiastically embraced its protocol.

That protocol was a recipe for the constitutional crisis that is now approaching. The recipe consists of a secret court whose records and rulings are not available to the public. It’s a court where only the government’s lawyers appear; hence there is no challenge to the government’s submissions. And it’s a court that applies a legal standard profoundly at odds with the Constitution. The Constitution requires the presentation of evidence of probable cause of a crime as the trigger for a search warrant, yet FISA requires only probable cause of a relationship to a foreign power.

In the years in which the FISC authorized spying only on foreigners, few Americans complained. Some of us warned at FISA’s inception that this system violates the Constitution and is ripe for abuse, yet we did not know then how corrupt the system would become. The corruption was subtle, as it consisted of government lawyers, in secret and without opposition, persuading the FISC to permit spying on Americans.

The logic was laughable, but it went like this: We need to spy on all foreigners, whether they’re working for a foreign government or not; we need to spy on anyone who communicates with a foreigner; and we need to spy on anyone who has communicated with anyone else who has ever communicated with a foreigner.

These absurd extrapolations, pressed on the FISC and accepted by it in secret, turned FISA — a statute written to prevent spying on Americans — into a tool that facilitates it. Now, back to McCabe.

Though the use of FISA for domestic spying on ordinary Americans came about gradually and was generally known only to those in the federal intelligence and law enforcement communities and to members of the Senate and House intelligence committees, by the time McCabe became deputy director of the FBI, this spying was commonplace. The Foreign Intelligence Surveillance Court (is it really a court, given that its rulings are secret and it hears only the government and it rejects the constraints of the Constitution?) has granted 99.9 percent of government surveillance requests.

So when McCabe and his colleagues went to the FISC in October 2016 looking for a search warrant to conduct surveillance of officials in the Trump campaign, they knew that their request would be granted, but they never expected that their application, their work and the purpose of their request — as far removed as it was from the original purpose of FISA — would come under public scrutiny.

Indeed, it was not until the surveillance of Trump and his colleagues in the campaign and the transition came to light — with McCabe as the poster boy for it — that most Americans even knew how insidiously governmental powers are being abused.

The stated reason for McCabe’s firing was not his abuse of FISA but his absence of candor to FBI investigators about his use of FISA. I don’t know whether those allegations are the true reasons for his firing or McCabe was sacrificed at the altar of government abuse — because those who fired him also have abused FISA.

But I do know that there are lessons to learn in all this. Courts are bound by the Constitution, just as are Congress and the president. Just because Congress says something is lawful does not mean it is constitutional. Secret courts are the tools of tyrants and lead to the corruption of the judicial process and the erosion of freedom.

And courts that hear no challenge to the government and grant whatever it wants are not courts as we understand them; they are government hacks. They and the folks who have facilitated all this have undermined personal liberty in our once free society.

The whole purpose of the Constitution is to restrain the government and to protect personal liberty. FISA and its enablers in both major political parties have done the opposite. They have infused government with corruption and have assaulted the privacy of us all.

Featured, Opinion

Judge Napolitano: President Trump and the Freedom of Speech

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When James Madison drafted the First Amendment — “Congress shall make no law … abridging the freedom of speech” — he made sure to use the article “the” in front of the word “freedom.” What seemed normal to him and superfluous to moderns was actually a profound signal that has resonated for 227 years. The signal was that because the freedom of speech existed before the government that was formed to protect it came into existence, it does not have its origins in government.

The freedom of speech has its origins in our humanity. It is a natural right. It exists in the absence of government. By the exercise of normal human reasoning, all rational people are drawn to exercise this freedom. Madison understood this. He could have written, “Congress shall grant freedom of speech.” He did not because that freedom is not Congress’ to grant or to abridge.

I am presenting this thumbnail sketch of the historical and philosophical underpinnings of the freedom of speech by way of background to a hot dispute now raging off the front pages. The dispute addresses whether the president of the United States can use federal courts to block the exercise of this right. CBS News wants to air an interview with an adult-film actress who alleges a sexual relationship with Donald Trump — a relationship he denies — and President Trump wants to prevent the airing.

The actress, whose stage name is Stormy Daniels, signed an agreement in October 2016 to accept $130,000 in return for remaining silent about her alleged sexual relationship with Trump, which she claims occurred shortly after the birth of his son Barron, who is now almost 12. The lawyer who negotiated the agreement with Daniels’ lawyer claimed that he was doing this on his own, that the hush money came from him and not Trump, and that Trump was not his client.

That claim raises profound campaign finance issues, but they are not the point of this piece. The point of this piece is about the freedom of speech.

Daniels, whose present lawyers have sued to invalidate the agreement, recently gave an interview about her relationship with Trump to the CBS News program “60 Minutes.” CBS plans to air that interview in the coming weeks, and Trump wants to prevent that from happening. The stated legal basis for Trump’s lawyers asking a court to block the broadcast is the existence of the hush agreement, which, in plain words, bars Daniels from discussing anything about her alleged sexual relationship with Trump. Obviously, Trump does not want any allegations from Daniels — true or false — to become a topic of public conversation and a distraction to his presidency.

Can the president legally persuade a federal court to enjoin the airing of an interview? In a word: no. Here is the back story.

In 1931, in a famous case called Near v. Minnesota, the Supreme Court generally rejected the concept of “prior restraint.” Prior restraint is the use of the courts to prevent the media from disseminating materials they already have. The Near case dealt with an anti-Catholic, anti-Semitic, anti-African-American newspaper that Minnesota state courts had silenced. The Supreme Court overruled the state courts and held that the freedom of speech presumes that individuals will decide for themselves what to read and hear and the First Amendment keeps the government — which here includes the courts — from censoring the marketplace of ideas, even hateful ideas.

Forty years later, in the Pentagon Papers case, the Supreme Court made a similar ruling. There, Daniel Ellsberg, an employee of a contractor to the Department of Defense, stole highly classified documents that demonstrated that then-President Lyndon B. Johnson and his generals had knowingly deceived the American public about the war in Vietnam.

When Ellsberg gave the documents to The New York Times and The Washington Post, the Nixon administration hurriedly persuaded a federal judge in New York to enjoin the Times from publishing the documents. Before a federal judge in Washington could rule on a similar request — and bypassing the intermediate appellate courts — the Supreme Court took the case and ruled in favor of the freedom of speech and reinforced the judicial condemnation of prior restraint.

But the Pentagon Papers ruling went a step further than the Near opinion had. It ruled that no matter how a media outlet has acquired matters material to the public interest — even by theft of top-secret documents — the outlet is free to publish them. This, of course, does not absolve the thief (though the case against Ellsberg was dismissed because of FBI misconduct), but it makes clear that no court can block the media from revealing what they reasonably believe the public wants to hear.

Now back to the president and the adult-film star. Because whatever Daniels said to CBS arguably speaks to Trump’s fitness for office, individuals have the right to learn of it, to hear Trump’s denials and to form their own opinions. In Trump’s case, he has a bigger megaphone than CBS does — via his adroit use of social media — and the volume and ferocity of his denials might carry the day.

But the point here is that individuals can make up their own minds about the president’s character; they don’t have to endure the prior restraint of a court’s silencing a voice in the debate, even a tawdry voice.

What if the hush money agreement Daniels signed — and the president did not — is valid? Could that trigger prior restraint? In a word: no. The Madisonian values underpinning the freedom of speech, as articulated consistently by the Supreme Court, will prevail. Anything short of that would prefer government censorship over personal choices in matters of speech, a preference the First Amendment profoundly rejects.

Government Accountability, Opinion, Politics

Sam Nunberg: “Let Him Arrest Me!”

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Late Monday afternoon, we were treated to a series of bizarre interviews on nearly every major cable television channel except Fox when a colorful character named Sam Nunberg, a former personal and political aide to Donald Trump, took to the airwaves to denounce a grand jury subpoena he received compelling the production of documents and live testimony.

The grand jury is one of two summoned by special counsel Robert Mueller in his investigation of whether President Trump or his colleagues engaged in any criminal activity prior to or during the presidential campaign, or during his presidency.

At several points in the rambling and seemingly alcohol-infused rant, Nunberg insisted he would not comply with the subpoena, and he challenged Mueller to force him to do so, proclaiming at least three times, “Let him arrest me!” I can tell you from my years on the bench in New Jersey, this is not a good gauntlet to lay down; and it is one often addressed swiftly. Be careful what you ask for.

Here is the backstory:

Nunberg is a 36-year-old New York lawyer who has been involved in conservative politics since his teenage years. He was hired by Trump in 2011 for the purpose of burnishing Trump’s image as a political conservative. Like most people hired by Trump before his presidential candidacy, Nunberg signed a contract that provided for liquidated damages of $10 million should he publicly reveal any private matters he learned about Trump during his employment.

Trump did fire Nunberg in 2014 because of an unflattering op-ed that he believed Nunberg’s odd behavior had induced and sued Nunberg for $10 million. Nunberg counterclaimed that Trump was using corporate funds from the Trump Organization to fund his then-nascent presidential campaign, a potential felony. Soon, the litigation was dropped and Nunberg was rehired. And in 2015, he was fired again, in a very public and humiliating way by candidate Trump himself.

Last month, Nunberg agreed to be interviewed by Mueller’s prosecutors and FBI agents. After the five-hour interview, he told friends and media folks that he discerned from the questions that Mueller has “something bad” on Trump. Nunberg thought his involvement with the special prosecutor was over when he received a grand jury subpoena and then reacted in a most unlawyerly fashion.

For a few reasons, this is not good news for the president.

First, whatever Nunberg told the prosecutors and FBI agents who interviewed him last month, they revealed it to one of their grand juries; and they asked and received from the grand jury a subpoena compelling Nunberg to recount to the grand jury what he said in his interview. This is the same interview from which he claimed he learned that Mueller & Co. have “something bad” on Trump. The president’s lawyers would surely like to see whatever Mueller’s prosecutors told the grand jury Nunberg told them. So would we all.

Second, during his rants on Monday, he opined that the president is an “idiot” who no one hates “more than me,” and that Mueller had offered him immunity in return for his testimony. Immunity? That is the highest and best gift a prosecutor can give a witness or target. If done in accordance with the rules, it bars all prosecution of the immunized person no matter what he admits to in testimony, unless he lies under oath. If Mueller did offer Nunberg immunity, it can only mean that Mueller desperately needs Nunberg’s testimony against the president to be recounted to one of his grand juries, and that Nunberg has some criminal exposure.

At the end of his day of rage, Nunberg had a change of heart. I suspect it was induced by a compassionate on-camera plea to Nunberg by my Fox colleague Charles Gasparino, a friend of Nunberg who told him to talk to his lawyers and his doctors soon. After six hours of wild on-air gyrations and threats, Nunberg agreed to testify, Gasparino says.
Nunberg’s doctors must have calmed him down, and his lawyers must have reminded him that the remedy for the persistent willful failure to comply with a grand jury subpoena is incarceration. That would mean incarceration for the life of the grand jury, which now seems as though it will be sitting well into 2019. His lawyers no doubt also reminded him that it is insane to taunt an alligator before crossing the stream. The FBI does not like being provoked.

While all this was going on, the same grand jury subpoenaed all emails between or among Trump’s inner circle of 10 persons — including the president himself. Given the roles each has played in Trump’s recent life, it is clear that the president remains in Mueller’s legal crosshairs.

There are actually three sets of legal crosshairs, so to speak. One seeks to determine whether the Trump campaign received “anything of value” from any foreign national or foreign government, and whether Trump personally approved of it — a felony. Another inquiry seeks to determine whether the president himself attempted to obstruct the work of the Mueller grand juries by firing then-FBI Director James Comey for a corrupt reason, one that is self-serving and lacking a bona fide governmental purpose — also a felony.
The third inquiry seeks to examine whether Trump misused or misrepresented corporate funds or bank loans in his pre-presidential life — another felony. On this last point, he has already been accused by Nunberg; and the grand jury no doubt will hear about it.
It has often been argued that out of the mouths of babes and drunks comes the truth, as both lack a filter and any moral fear. Is Nunberg dumb like a fox? Did he impeach himself? Would you believe Sam Nunberg?

Opinion

Judge Napolitano: In Defense of the Right to Keep and Bear Arms

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The Ash Wednesday massacre at Marjory Stoneman Douglas High School in Parkland, Florida, seems to have broken more hearts than similar tragedies that preceded it. It was no more senseless than other American school shootings, but there is something about the innocence and bravery and eloquence of the youthful survivors that has touched the souls of Americans deeply.

After burying their dead, the survivors have mobilized into a mighty political force that loosely seeks more laws to regulate the right to keep and bear arms. The young people, traumatized and terrified with memories of unspeakable horror that will not fade, somehow think that a person bent on murder will obey gun laws.

Every time I watch these beautiful young people, I wince, because in their understandable sadness is the potential for madness — “madness” being defined as the passionate and stubborn refusal to accept reason. This often happens after tragedy. After watching the government railroad Abraham Lincoln’s killer’s conspirators — and even some folks who had nothing to do with the assassination — the poet Herman Melville wrote: “Beware the People weeping. When they bare the iron hand.”

It is nearly impossible to argue rationally with tears and pain, which is why we all need to take a step back from this tragedy before legally addressing its causes.

If you believe in an all-knowing, all-loving God as I do, then you accept the concept of natural rights. These are the claims and privileges that are attached to humanity as God’s gifts. If you do not accept the existence of a Supreme Being, you can still accept the concept of natural rights, as it is obvious that humans are the superior rational beings on earth. Our exercise of reason draws us all to the exercise of freedoms, and we can do this independent of the government. Stated differently, both the theist and the atheist can accept the concept of natural human rights.

Thomas Jefferson, who claimed to be neither theist nor atheist, wrote in the Declaration of Independence that all men are created equal and are “endowed by their Creator with certain unalienable Rights.” Such rights cannot be separated from us, as they are integral to our humanity. Foremost among our unalienable rights is the right to life — the right to be and to remain alive.

And that right implies the right to defend life — the right to self-defense. If I am about to assault you in the nose, you can duck, run away or punch me first. If I am about to strike your children, you can strike me first. If I am about to do either of those things with a gun, you can shoot me first, and no reasonable jury will convict you. In fact, no reasonable prosecutor will charge you.

The reason for all this is natural. It is natural to defend yourself — your life — and your children. The Framers recognized this right when they ratified the Second Amendment. They wrote it to ensure that all governments would respect the right to keep and bear arms as a natural extension of the right to self-defense.

In its two most recent interpretations of the right to self-defense, the Supreme Court characterized that right as “pre-political.” That means the right pre-existed the government. If it pre-existed the government, it must come from our human nature. I once asked Justice Antonin Scalia, the author of the majority’s opinion in the first of those cases, called the District of Columbia v. Heller, why he used the term “pre-political” instead of “natural.” He replied, “You and I know they mean the same thing, but ‘natural’ sounds too Catholic, and I am interpreting the Constitution, not Aquinas.”

With the Heller case, the court went on to characterize this pre-political right as an individual and personal one. It also recognized that the people who wrote the Second Amendment had just fought a war against a king and his army — a war that they surely would have lost had they not kept and carried arms that were equal to or better than what the British army had.

They didn’t write the Second Amendment to protect the right to shoot deer; they wrote it to protect the right to self-defense — whether against bad guys, crazy people or a tyrannical government bent on destroying personal liberty.

In Heller, the court also articulated that the right to use guns means the right to use guns that are at the same level of sophistication as the guns your potential adversary might have, whether that adversary be a bad guy, a crazy person or a soldier of a tyrannical government.

But even after Heller, governments have found ways to infringe on the right to self-defense. Government does not like competition. Essentially, government is the entity among us that monopolizes force. The more force it monopolizes the more power it has. So it has enacted, in the name of safety, the least safe places on earth — gun-free zones. The nightclub in Orlando, the government offices in San Bernardino, the schools in Columbine, Newtown and Parkland were all killing zones because the government prohibited guns there and the killers knew this.

We all need to face a painful fact of life: The police make mistakes like the rest of us and simply cannot be everywhere when we need them. When government fails to recognize this and it disarms us in selected zones, we become helpless before our enemies.

But it could be worse. One of my Fox News colleagues asked me on-air the other day: Suppose we confiscated all guns; wouldn’t that keep us safe? I replied that we’d need to start with the government’s guns. Oh, no, he said. He just meant confiscation among the civilian population. I replied that then we wouldn’t be a civilian population any longer. We’d be a nation of sheep.

Featured, International, US

Mueller in Hot Pursuit

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Last Friday, a federal grand jury sitting in Washington, D.C., indicted 13 Russian nationals and three Russian corporations for conspiracy and for using false instruments and computer hacking so as to influence the American presidential election in 2016. The indictment alleges a vast, organized and professional effort, funded by tens of millions of dollars, whereby Russian spies passed themselves off as Americans on the internet, on the telephone and even in person here in the U.S. to sow discord about Hillary Clinton and thereby assist in the election of Donald Trump.

Though an indictment is a charge only, it presumably relies on hard evidence of a wide and deep Russian project — so wide and so deep that it could only have been approved and paid for by the Kremlin. President Trump’s national security adviser, Lt. Gen. H.R. McMaster, characterized the allegations in the indictment as “incontrovertible.” The New York Times reported over the weekend that its Russian sources have now revealed that more than 1,000 people in Russia were involved for over three years.

The project was run out of an office building in St. Petersburg, Russia, which also houses the Kremlin’s favorite caterer, a company owned by one of Russian President Vladimir Putin’s close friends. The techniques outlined in the indictment include using false and fictitious names, bank accounts and websites; organizing rallies and marches in the U.S.; making thousands of phony web posts; and aggressively revealing embarrassing data about Clinton.

The Russian work even included the orchestration of a few pro-Clinton rallies so as to deflect suspicion away from all these new pro-Trump entities that appeared to have come out of nowhere.
Though Donald Trump told folks as far back as 2011 of his interest in running for president and though Clinton ran in the Democratic primaries in 2008 and 2016, as well as in the general election in 2016, the Russian scheme appears to have materialized at some point in 2014.

The dates are important because we know from the revelations of Edward Snowden that the National Security Agency, the federal government’s domestic spying apparatus, began its pursuit of capturing all electronic data on everyone in the U.S. in 2001 and succeeded in mastering the capture of all keystrokes, telephone calls and digital traffic by 2005. We also know that the NSA traffic proceeds through FBI computers and that the CIA keeps constant tabs on Russian spies in Russia and elsewhere.

Why didn’t the CIA or the NSA or the FBI pick this up?

That is the $64,000 question that the indictment does not address, and we may never know the answer to it. If the purpose of all the warrantless spying — in direct contravention of the Constitution, no less — is to keep the country safe from foreign assault, whether by bombs in a subway or by guns in an office building or by hacking into computers, why didn’t our 60,000 domestic, and God only knows how many foreign, spies catch this Russian interference?

One answer is information overload. By spying on everyone all the time, the spies have too much data through which to sift, and they miss the evidence of coming terror — just as they did with the killings in Orlando, in San Bernardino, at the Boston Marathon, on a New York bike path and even recently at a school in Florida, all of which were preceded by internet chatter that would have tipped off a trained listener to the plans of the killers.
Special counsel Robert Mueller’s efforts to uncover the Russian interference are not a “hoax” or a “witch hunt” as President Trump has argued. They are serious and professional efforts that have now borne fruit. But Mueller was not appointed until after the election — after the Russians ran unchecked through our computer systems and the American marketplaces of ideas.

The joke in the D.C. legal community this week is, “We all want a front-row seat at the arraignments of the Russians.” That’s a joke because a defendant must be physically present at his arraignment, meaning — since the Kremlin will surely not send its indicted spies here — no arraignments will occur. And no trials will occur.
These folks the grand jury indicted could be lured to other countries and arrested or even kidnapped there, but that would be very dangerous and would most likely invite violent retaliation. Even if these defendants ended up in a federal courtroom by murky or illegal means, that would not impair their prosecution.

However, because the American intelligence community has done similar “disinformation” projects in foreign countries (though not on this scale), these defendants and these indictments will go nowhere.
That leaves a question: Why would Mueller seek indictments of folks he knows he cannot prosecute? He did so for a few reasons. One was to reveal the scope of the unlawful activity that he has found. The American people are entitled to know what went on under our noses and who knew about this and looked the other way. As well, this indictment gives credibility to Mueller’s work.

The other reason for the indictment is to smoke out any American collaborators. He has identified American collaborators, but not by proper name, and the Department of Justice has said — not in the indictment, in which case it would be bound by what it says, but in a press statement, which binds no one — that the American collaborators were unwitting dupes of the Russians. My guess is that Mueller’s American targets are under electronic and visual surveillance and that he is listening to their (premature) sighs of relief.
It is a felony for foreign nationals to participate in American federal elections, and it is a felony for any Americans knowingly to assist them.

This is not the end of these indictments related to the 2016 election. It is the beginning.