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Westlake Legal Group > Andrew Napolitano

Judge Andrew Napolitano: US killing of Soleimani was odd, out of place, untimely and unlawful

Westlake Legal Group 694940094001_6122730388001_6122737080001-vs Judge Andrew Napolitano: US killing of Soleimani was odd, out of place, untimely and unlawful fox-news/world/world-regions/iraq fox-news/world/conflicts/iran fox-news/world fox-news/us/terror/counter-terrorism fox-news/us/military fox-news/politics/executive/national-security fox-news/politics/defense fox-news/person/donald-trump fox-news/opinion fnc/opinion fnc Creators Syndicate article Andrew Napolitano 8fb8a561-e7a0-5cee-8b54-50f5495d0759

When witnesses testify in a courtroom and offer varying, contradictory or even unlawful explanations of the events under scrutiny, juries tend not to believe them. The same is now happening with the Trump administration’s defense of its killing Iranian Maj. Gen. Qassem Soleimani by the use of an unmanned drone while he was being driven peacefully along a public highway in Iraq. Why the shifting justifications?

Here is the backstory.

The general was the commander of Iran’s elite military and intelligence forces. He was a fierce opponent of ISIS and the American military presence in Iraq. Iraq and Iran were belligerents for generations owing to, among other factors, ancient disputes between the two main branches of Islam, Shiite and Sunni. For generations, Iran’s elites were predominantly Shiite and Iraq’s were predominantly Sunni.

KT MCFARLAND ON IRAN LEADER’S LATEST THREATS: ‘THEY DON’T HAVE A LOT OF OPTIONS’

When the U.S., under President George W. Bush, invaded Iraq in 2002, pursuant to a congressional Authorization for Use of Military Force, the government did so by deceiving the American public and Congress into believing it was searching for weapons of mass destruction. Since none were there, none were found.

But the American invasion did destroy the Sunni government and its true target, the Iraqi dictator Saddam Hussein. That created a power vacuum, which was soon filled by Shiite politicians. Slowly but inexorably, Iran’s and Iraq’s governments became friendly and they jointly sponsored militias against ISIS. Soleimani even consulted with President Obama in the Oval Office about using these militias to topple ISIS.

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The general’s assassination was odd, out of place, untimely and unlawful. Odd, because the general’s folks had worked with our intelligence folks in Iraq against ISIS. Out of place, because the Iranian general was welcomed by the Iraqi government and was not engaged in any violence or war crimes at the time he was killed. Untimely, because whatever he may have been planning to do was not an imminent attack on the U.S. or on Americans. We know this because Trump administration officials revealed that the president gave the kill order seven months ago, in June 2019. How imminent could an attack have been in June if it had not occurred by January?

And unlawful, because we are not at war with Iran, and political assassinations have been prohibited by still valid executive orders signed by Presidents Gerald R. Ford and Ronald Reagan. The U.S. Constitution limits the federal government’s lawful power to kill to foreign troops in wartime and after due process, neither of which abides here. Moreover, international treaties to which the U.S. is party, as well as the laws of war to which the U.S. subscribes, prohibit preemptive killings except when the target is just about — “certainty” is the standard — to strike.

Now, back to the shifting sands of justification.

Shortly after the general’s death, Secretary of State Mike Pompeo argued that Soleimani’s attacks on Americans were imminent. President Trump himself claimed Soleimani was planning to attack four U.S. embassies in the Middle East.

When Secretary of Defense Mark Esper was asked if he saw any intelligence data about attacking four embassies, he said he had not. When Pompeo was pressed for his understanding of Trump’s four embassies claim, he offered that the intelligence data did not reveal when or where or how, but he knew Soleimani was “probably” up to no good.

When the State Department spokesperson was asked if any alerts of likely attacks had been sent to any American embassies in the region, she said that none had.

Then the White House sent CIA Director Gina Haspel, Joint Chiefs of Staff Chair Gen. Mark Milley, and Pompeo and Esper, to brief members of Congress on the administration’s intelligence, moral and legal justifications for killing the general.

None of the briefers mentioned four embassies or any data showing where or when or how he might strike — just probabilities.

When Republican Sens. Mike Lee of Utah and Rand Paul of Kentucky challenged the briefers, the president weighed in with a startling tweet on Monday: “The Fake News Media and their Democrat Partners are working hard to determine whether or not the future attack by terrorist Soleimani was “eminent” or not, & was my team in agreement. The answer to both is a strong YES, but it doesn’t really matter because of his horrible past!”

That boast of killing the general “because of his horrible past” sent off bells and whistles in the Department of Justice. Trump’s retribution argument does not legally justify killing a person who is not engaged in violence at the time of the killing, and, arguably, is a war crime.

Thereupon, Attorney General William Barr revealed that the DOJ had been consulted on the lawfulness of the killing and signed off on it if the general’s attacks on Americans were imminent. Now that the imminence argument had been undermined by the administration’s own folks — including the president himself — the attorney general argued that Soleimani needed to die as a deterrence to others pursuant to the old 2002 AUMF.

These shifting justifications are contrary to reason and cannot survive a simple cross-examination. When did we start killing generals from countries with which we are not at war? Never in our history.

When did we start killing foreign generals because of their “horrible past”? Never in our history.

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How can the government use the 2002 AUMF, whose stated target was Iraqi weapons of mass destruction, but whose true target was Saddam Hussein, as a legal justification to kill a non-Iraqi general 18 years later? Except in the minds of extreme administration loyalists, it cannot legally or rationally do so.

Why is truth always the first casualty of government violence?

CLICK HERE TO READ MORE BY JUDGE ANDREW NAPOLITANO

Westlake Legal Group 694940094001_6122730388001_6122737080001-vs Judge Andrew Napolitano: US killing of Soleimani was odd, out of place, untimely and unlawful fox-news/world/world-regions/iraq fox-news/world/conflicts/iran fox-news/world fox-news/us/terror/counter-terrorism fox-news/us/military fox-news/politics/executive/national-security fox-news/politics/defense fox-news/person/donald-trump fox-news/opinion fnc/opinion fnc Creators Syndicate article Andrew Napolitano 8fb8a561-e7a0-5cee-8b54-50f5495d0759   Westlake Legal Group 694940094001_6122730388001_6122737080001-vs Judge Andrew Napolitano: US killing of Soleimani was odd, out of place, untimely and unlawful fox-news/world/world-regions/iraq fox-news/world/conflicts/iran fox-news/world fox-news/us/terror/counter-terrorism fox-news/us/military fox-news/politics/executive/national-security fox-news/politics/defense fox-news/person/donald-trump fox-news/opinion fnc/opinion fnc Creators Syndicate article Andrew Napolitano 8fb8a561-e7a0-5cee-8b54-50f5495d0759

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Judge Andrew Napolitano: Trump had no legal right to order killing of Soleimani

Westlake Legal Group 694940094001_6120740013001_6120742014001-vs Judge Andrew Napolitano: Trump had no legal right to order killing of Soleimani fox-news/world/world-regions/iraq fox-news/world/conflicts/iran fox-news/world fox-news/us/military fox-news/us/constitution fox-news/politics/executive/national-security fox-news/politics/executive/law fox-news/politics/defense/conflicts fox-news/politics/defense fox-news/person/donald-trump fox-news/opinion fnc/opinion fnc d3d52160-ab84-59ea-9015-10787600f191 Creators Syndicate article Andrew Napolitano

America … goes not abroad in search of monsters to destroy.” — President John Quincy Adams (1767-1848)

President Trump ordered the U.S. military to invade a then-friendly country without the knowledge or consent of its government and assassinate a visiting foreign government official. The victim was the head of Iran’s military and intelligence. The formerly friendly country is Iraq.

The killing of the general and his companions was carried out by the use of an unmanned drone. The general was not engaged in an act of violence at the time he was killed, nor were any of his companions. They were driving on a public highway in a van.

The president’s supporters have argued that the general’s death was revenge for Americans and others killed by the general’s troops and surrogates. Trump has argued, more importantly, that he ordered the general’s death because of what evil the general might order his own troops and surrogates to do in the future.

JAMES CARAFANO: TRUMP TELLS IRAN THE ENDGAME REMAINS THE SAME WHILE OFFERING A CHANCE TO RENEGOTIATE

Can the president legally kill a person not engaged in an act of violence because of what the person might do in the future? In a word: No.

Here is the backstory.

The president has taken an oath to uphold the Constitution. The Constitution provides only two means for the federal government to kill a human being. The first is pursuant to a declaration of war, which only Congress can do. That permits the president to use the military to kill the troops of the government of the country against which war has been declared. Congress has not declared war on Iran.

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The second way that the Constitution permits federal government killings is pursuant to due process. That means that the person to be killed is lawfully in custody, has been properly charged, lawfully tried and fairly convicted of a capital crime, and the conviction has been upheld on appeal.

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Can the president kill foreign military personnel and claim the justification of self-defense? The laws of war permit him to do that, but self-defense — actually, defense of the country — only comes into play when the foreign military personnel are physically engaged in killing Americans or are certainly about to do so. That justification only applies — the law here is 600 years old and has been consistently applied — when force is imminent and certain.

Were imminence and certainty not the requirement, then nothing would prevent a president from slaying any monster he chose simply based on a fear that the monster might someday strike. Such a state of affairs is contrary to two presidential executive orders, one issued by President Gerald R. Ford and the other by President Reagan, and neither negated by Trump.

Such a territorial invasion and killing also violate the United Nations Charter — a treaty that prohibits unlawful invasions and killings of member nations’ territories and officials outside of a lawful and U.N.-approved declaration of war.

Trump cut down the laws to get to the Devil. Whom will he kill next?

Roaming the world looking for monsters to slay not only violates long-standing principles of American domestic and international law, but also it violates basic Judeo-Christian moral principles, which teach that the end does not justify the means and might does not make right.

Think about it. If the American president can kill an Iranian government official in Iraq because of fear of what he might do — without a declaration of war or any legal process — can the Chinese president kill a Mexican government official visiting in Texas or an American intelligence agent encouraging revolution in Venezuela for fear of what they might do?

This is not a fanciful or academic argument. It not only goes to the fidelity to the rule of law that we require of our leaders in order to maintain personal liberty and limited government, it also goes to our safety. We have laws to prevent wanton killings, lest killers turn on us.

In Robert Bolt’s play “A Man for All Seasons,” Sir Thomas More argues with his son-in-law, William Roper, about the extent of the law’s protections of those universally recognized as evil. Roper says that he would cut down all the laws in England to get rid of the Devil.

More counters that even the Devil is entitled to the benefits of the law. Then he hurls this zinger: “And, when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and, if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”

More crystalized the dangers of those who — like Trump — take the law into their own hands for the sake of expedience or to rid the world of a monster. Without law, how does one decide what monsters should go and what monsters may stay?

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When President Obama used drones to kill peaceful uncharged Americans in Yemen, candidate Donald Trump condemned that behavior. He offered that as president, he would bring the troops home, stop the nation-building, quit being the world’s police force and end the endless wars.

Instead, his act of state terrorism has succeeded in doing what the general he killed could never do while alive. Trump has united the Iranian people behind their fanatical government, and he caused the Iraqi government to kick out all American troops — troops that had no lawful or moral basis for being there in the first place and whose numbers have only increased.

Trump cut down the laws to get to the Devil. Whom will he kill next?

CLICK HERE TO READ MORE BY JUDGE ANDREW NAPOLITANO

Westlake Legal Group 694940094001_6120740013001_6120742014001-vs Judge Andrew Napolitano: Trump had no legal right to order killing of Soleimani fox-news/world/world-regions/iraq fox-news/world/conflicts/iran fox-news/world fox-news/us/military fox-news/us/constitution fox-news/politics/executive/national-security fox-news/politics/executive/law fox-news/politics/defense/conflicts fox-news/politics/defense fox-news/person/donald-trump fox-news/opinion fnc/opinion fnc d3d52160-ab84-59ea-9015-10787600f191 Creators Syndicate article Andrew Napolitano   Westlake Legal Group 694940094001_6120740013001_6120742014001-vs Judge Andrew Napolitano: Trump had no legal right to order killing of Soleimani fox-news/world/world-regions/iraq fox-news/world/conflicts/iran fox-news/world fox-news/us/military fox-news/us/constitution fox-news/politics/executive/national-security fox-news/politics/executive/law fox-news/politics/defense/conflicts fox-news/politics/defense fox-news/person/donald-trump fox-news/opinion fnc/opinion fnc d3d52160-ab84-59ea-9015-10787600f191 Creators Syndicate article Andrew Napolitano

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Judge Andrew Napolitano: My office pool questions (and answers) for 2020

Westlake Legal Group Early-morning-fireworks Judge Andrew Napolitano: My office pool questions (and answers) for 2020 fox-news/politics/elections fox-news/politics/2020-presidential-election fox-news/person/donald-trump fox-news/opinion fnc/opinion fnc Creators Syndicate article Andrew Napolitano 7269c891-10d1-5018-8a06-fc6b7b33bc4b

1. In 2020, President Trump will…

a. start a war with Iran.

b. refuse to enforce ObamaCare.

c. retain the core of ObamaCare because he will have a change of heart.

IRAN-BACKED MILITIAMEN WITHDRAW FROM SIEGE OF US EMBASSY IN BAGHDAD AS MORE AMERICAN TROOPS DEPLOYED

d. be reelected.

2. At the end of 2020…

a. more American troops will be deployed around the world than are today.

b. the United States will be directly involved in a land war in Syria.

c. the United States will renounce its membership in NATO.

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d. all American combat troops will be back home in the United States.

3. In 2020, Trump will…

a. issue more executive orders than President Obama did in eight years.

b. direct the IRS to lower the top tax rate to 15 percent.

c. appoint former New Jersey Gov. Chris Christie to the President’s Council on Sports, Fitness and Nutrition.

d. be very, very presidential.

4. In 2020, the Supreme Court will…

a. reverse Roe v. Wade, thereby handing off the abortion controversy to the states.

b. rule that the right to carry arms outside the home is protected by the Second Amendment.

c. permit the execution of subpoenas on Trump’s tax and financial records.

d. have its oral arguments televised.

5. In 2020, Trump and Russian President Vladimir Putin will…

a. race to see who can hack the other more often.

b. proclaim their personal and eternal friendship to each other.

c. agree to produce a shirtless 2021 calendar together.

d. meet privately at Mar-a-Lago.

 6. In 2020, WikiLeaks will release…

a. secret tapes of the meeting in Trump Tower between Trump and Kanye West.

b. Hillary Clinton’s favorite yoga positions.

c. proof that Bill Clinton is a crook.

d. emails showing where Obama was born.

 7. In 2020, Trump will…

a. wage a hostile takeover of NBC.

b. fire Lorne Michaels and hire the entire “Saturday Night Live” cast to work for The Trump Organization.

c. pick more fights than a fourth-grade schoolyard bully.

d. give up building the wall because the land on which he wants to build is owned by Republicans who won’t sell to the government.

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 8. In 2020, former Republican Presidential candidate and New Jersey Gov. Chris Christie will…

a. attempt professional wrestling for his next career.

b. try a cable TV gig and hate it because it is too much work.

c. become a roadie for Bruce Springsteen’s next tour.

d. become the general manager of the George Washington Bridge.

 9. In 2020, Sen. Lindsey Graham, R-S.C., will…

a. cause a government shutdown.

b. announce that he will run for president in 2024.

c. be appointed to the Supreme Court.

d. be named president of the University of South Carolina.

 10.  In 2020, Trump will…

a. listen to Hillary Clinton’s stump speeches.

b. sit through a dinner with Sen. Mitt Romney and Senate Majority Leader Mitch McConnell arguing about Federal Reserve policy.

c. give a lecture at Princeton University about how bad a president Woodrow Wilson was.

d. host “Saturday Night Live.”

 11. In 2020, the news media will…

a. embrace fake news 24/7 by establishing formal fake news outlets.

b. make billions covering the Trump administration.

c. be ostracized by Trump.

d. largely be very frustrated as Trump bypasses and ignores them.

 12. In 2020, Obama will…

a. start a health insurance company.

b. become the president of the University of Chicago.

c. show up everywhere.

d. be shunned by fellow Democrats.

 13. In 2020, the World Series will be won by…

a. the New York Yankees, after Gerrit Cole pitches a perfect game.

b. the Boston Red Sox.

c. the Los Angeles Dodgers.

d. the San Francisco Giants, after Nancy Pelosi and her super-rich husband buy the team.

 14. In 2020, the Super Bowl will be won by…

a. the New York Giants, without Eli Manning at quarterback.

b. the Jacksonville Jaguars after Eli Manning throws a 99 yard Hail Mary pass with no time remaining on the clock.

c. the Detroit Lions.

d. the New England Patriots after yet another cheating scandal.

 15. In 2020, global warming will be…

a. embraced by Trump.

b. exposed as a hoax.

c. largely forgotten.

d. the subject of another encyclical by Pope Francis.

 16. One year from today…

a. Pope Francis will be voluntarily retired and living as a simple parish priest in a slum in Buenos Aires.

b. divorced and remarried Catholics will lawfully be able to receive the Holy Eucharist.

c. Roman Catholic cardinals will have deposed Pope Francis for heresy.

d. Antonin Scalia will be on his way to formal sainthood.

 17. One year from today…

a. the United States will have imposed a 50 percent tariff on all goods made in China.

b. the Federal Reserve will be retaining artificially low interest rates.

c. the debt of the federal government will exceed $24 trillion.

d. all of the above.

 18. One year from today…

a. we will all know how wealthy Trump is — or isn’t.

b. Al Gore will have announced that he will be running for president in 2024.

c. the Islamic State group will be history.

d. the current mayor of New York City and the current governor of New York state will be cellmates in a federal prison.

 19. One year from today…

a. Hillary and Bill Clinton will be divorced.

b. Roger Clemens will be in the Baseball Hall of Fame.

c. the Trump family will have established Mar-a-Lago as the official White House.

d. more people will be on ObamaCare than were in 2016.

 20. In the long run…

a. everything the government has it has stolen.

b. everything the government says is a lie.

c. that government is best which governs least.

d. all of the above are true.

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

Happy New Year.

CLICK HERE TO READ MORE BY JUDGE ANDREW NAPOLITANO

Westlake Legal Group Early-morning-fireworks Judge Andrew Napolitano: My office pool questions (and answers) for 2020 fox-news/politics/elections fox-news/politics/2020-presidential-election fox-news/person/donald-trump fox-news/opinion fnc/opinion fnc Creators Syndicate article Andrew Napolitano 7269c891-10d1-5018-8a06-fc6b7b33bc4b   Westlake Legal Group Early-morning-fireworks Judge Andrew Napolitano: My office pool questions (and answers) for 2020 fox-news/politics/elections fox-news/politics/2020-presidential-election fox-news/person/donald-trump fox-news/opinion fnc/opinion fnc Creators Syndicate article Andrew Napolitano 7269c891-10d1-5018-8a06-fc6b7b33bc4b

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Judge Andrew Napolitano: Christmas in America

Westlake Legal Group 694940094001_6118036826001_6118034191001-vs Judge Andrew Napolitano: Christmas in America fox-news/us/religion/christianity fox-news/opinion fox-news/lifestyle/occasions/christmas fox news fnc/opinion fnc article Andrew Napolitano 7b9a0f26-0390-57c8-bddd-a5cd11475c7b

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

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

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

NEWT GINGRICH: GEORGE WASHINGTON EXPERIENCED AMERICA’S FIRST CHRISTMAS MIRACLE – AND IT CHANGED OUR HISTORY

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

What if He freely did these things but sought no acclamation for them? What if after each of these miracles, He disappeared into the temple precincts or walked well past the crowd, lest the crowd hail him as a temporal or secular leader? What if there was in that towering personality a deep thread of shyness? What if He was shy about His Godness? What if He was shy about His goodness? What if He loved saving us? What if He was joyful but did not want us to see His joy?

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

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

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

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

What if the God-as-baby whose birthday we celebrate is the Savior of the World? What if we don’t mask this but live it? 

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

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

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

CLICK HERE TO READ MORE BY JUDGE ANDREW NAPOLITANO

Westlake Legal Group 694940094001_6118036826001_6118034191001-vs Judge Andrew Napolitano: Christmas in America fox-news/us/religion/christianity fox-news/opinion fox-news/lifestyle/occasions/christmas fox news fnc/opinion fnc article Andrew Napolitano 7b9a0f26-0390-57c8-bddd-a5cd11475c7b   Westlake Legal Group 694940094001_6118036826001_6118034191001-vs Judge Andrew Napolitano: Christmas in America fox-news/us/religion/christianity fox-news/opinion fox-news/lifestyle/occasions/christmas fox news fnc/opinion fnc article Andrew Napolitano 7b9a0f26-0390-57c8-bddd-a5cd11475c7b

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Judge Andrew Napolitano: Impeachment needed for Trump – He tried to unlawfully put his needs above nation’s

Westlake Legal Group 694940094001_6116425898001_6116420815001-vs Judge Andrew Napolitano: Impeachment needed for Trump – He tried to unlawfully put his needs above nation’s fox-news/us/constitution fox-news/politics/trump-impeachment-inquiry fox-news/person/donald-trump fox-news/opinion fnc/opinion fnc Creators Syndicate cfaccc46-3f46-5b01-9a10-631b5390a86c article Andrew Napolitano

The rule of law is a cornerstone of American democracy and is integral to the Constitution. It stands for the principles that no person is beneath the laws’ protections. No person is above the laws’ requirements. And the laws apply equally to all people. That is the theory of the rule of law.

In practice, as the power of the federal government has grown almost exponentially since 1789 and the power of the presidency has grown with it, presidents have claimed immunity from the need to comply with the law while in office. They have also claimed immunity from the consequences of the failure to comply with the law.

That immunity claim is predicated upon the belief that if the president committed a criminal offense and was charged and prosecuted while in office, the diversion of his energies to his defense would interfere substantially with his ability to do his job, which could jeopardize national security.

VARNEY: TRUMP WILL BE UNLEASHED AGAINST DEMOCRATS IN POST-IMPEACHMENT SPEECH

When the Department of Justice looked at the law of presidential prosecutions, it produced three scholarly reports during the Richard Nixon and Bill Clinton impeachment investigations. Two of those reports concluded that no president could be charged or prosecuted while in office.

Those two reports were relied upon by Attorney General William Barr when he brushed aside the findings of special counsel Robert Mueller, who found enough evidence to charge President Donald Trump with obstruction of justice after Trump repeatedly attempted to interfere with Mueller’s investigation by ordering subordinates to lie to FBI investigators or to falsify government documents that investigators sought.

Barr did not address the merits of Mueller’s findings. In Barr’s view, no matter what the president did — even if anyone else who did the same would have been prosecuted — the disruption to the government would not be worth the benefits of a presidential prosecution.

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The third scholarly DOJ report concluded that the president is not above the law and that if sufficient evidence of presidential lawbreaking does exist, he ought to be charged. However, the prosecution should be deferred until he leaves office.

All three DOJ reports agreed that if the president’s behavior, though uncharged, nevertheless amounted to “high crimes and misdemeanors,” he should be impeached.

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High crimes and misdemeanors is a basis for impeachment, the constitutional remedy for presidential behavior that subverts our democratic institutions. In Trump’s case, we have undisputed evidence that he abused his power by inviting a foreign government to interfere in the 2020 presidential election and then compounded this by directing subordinates to refrain from giving congressionally commanded evidence of his behavior.

It is undisputed that Trump withheld the delivery of the $391 million in military aid to Ukraine that Congress authorized and ordered and that Trump himself signed into law. He said he withheld that aid because he first wanted “a favor” from the president of Ukraine.

The favor, requested by others on Trump’s behalf, was the announcement of a Ukrainian government criminal investigation of Trump’s potential political adversary, former Vice President Joe Biden. In the language of the streets, this is a shakedown; it sought to enhance Trump’s personal political needs and bears no relationship to American foreign policy.

That presidential behavior implicates two crimes. One is the federal prohibition on soliciting campaign aid from a foreign government — whether the aid arrives or not. It did not.

The other crime is bribery, which is the exploitation of public duties for personal gain. Bribery consists of the intentional refusal to perform a required public duty — here, releasing the $391 million to Ukraine — until a personal thing of value — here, the announcement of the Ukrainian investigation of Biden — arrives. The crime of bribery is complete when the thing of value is solicited, whether it arrives or not. It did not.

The other crimes implicated by Trump’s behavior took place after he was accused of the first two. Then, he directed his subordinates to disregard congressional subpoenas, lawfully issued and validly served, which sought testimony, documents and electronic records of the president’s behavior.

We know from the impeachment charges recommended by the House Judiciary Committee against Nixon and voted by the House of Representatives against Clinton that obstructing the constitutional duty of Congress is impeachable. We also know from the Roger Clemens case, in which he was prosecuted, and acquitted, for obstruction of Congress by allegedly lying to a House committee, that obstruction can be criminal.

Because Trump declined to participate in the House investigation that resulted in the construction of the articles of impeachment against him — except for his tweets and bluster and the Republicans’ personal attacks on House Democratic committee chairs — the facts underlying the charges against Trump are essentially uncontested.

Everyone who believes in the rule of law should be terrified of a president who thinks and behaves as if it does not apply to him. As the DOJ has stated repeatedly, impeachment is the proper constitutional remedy for that.

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James Madison, the author of the Constitution and the Bill of Rights, feared a government that was strong enough to protect the people would become too strong for the people to control. It would use its powers not for the nation’s betterment but its own. When the government fails to control itself, he argued, when the president becomes a law unto himself by violating the laws that pertain to all others, the remedy is impeachment.

The framers’ greatest fear was a president who would unlawfully put his own needs above the nation’s or who would drag a foreign government into our domestic affairs. Trump has tried to do both and threatened to repeat those attempts. That’s why the remedy of impeachment is acutely needed.

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Judge Andrew Napolitano: FISA – utilized to OK FBI surveillance of 2016 Trump campaign – is unconstitutional

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Congress enacted the Foreign Intelligence Surveillance Act (FISA)  in 1978 in response to the unlawful surveillance of Americans by the FBI and the CIA during the Watergate era. President Richard Nixon — who famously quipped after leaving office that “when the president does it, that means that it is not illegal” — used the FBI and the CIA to spy on his political opponents.

The stated reason was national security. Nixon claimed that foreign agents physically present in the U.S. agitated and aggravated his political opponents to produce the great public unrest in America in the late 1960s and early 1970s, and thus diminished Americans’ appetite for fighting the Vietnam War.

There was, of course, no evidence to support that view, but the neocons in Congress and the military-industrial complex supported it even after Nixon left office.

FISA REPORT DROPS: 7 TAKEAWAYS FROM DOJ WATCHDOG’S RUSSIA PROBE REVIEW

This view — there are foreigners among us who wish us harm — came to fruition during the presidency of Jimmy Carter, who pushed for the enactment of FISA. FISA’s stated purpose was to limit — not expand — the government’s surveillance powers by requiring the intervention and permission of a judge.

Wait a minute. Government surveillance is a search under the Fourth Amendment, and government searches already required warrants from judges. So, what was new about FISA?

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The Constitution requires probable cause of crime to be demonstrated to a judge before the judge can sign a search warrant. That was the law of the land until FISA came along. FISA set up the Foreign Intelligence Surveillance Court, and it authorized the judges on that court to issue search warrants based on a lower standard of probable cause.

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Isn’t that contrary to the Constitution? Yes, it is. But a challenge has never reached a non-FISC federal court because the government has never used evidence that it admits was obtained from a FISC warrant in a criminal case for fear that a federal court will invalidate the FISA standard.

It gets worse.

Because FISC meets in secret, and because only government lawyers appear before it, we have a dangerous recipe: Secrecy and no defense counsel produce tyranny. That combination has the standard for issuing search warrants sliding even further down the slope of tyranny and absurdity.

FISA established probable cause of foreign agency as the standard that government lawyers must meet. That morphed into probable cause of foreign personhood. That morphed into probable cause of speaking to a foreign person. And that morphed into probable cause of speaking to any person who has ever spoken to a foreign person. All of this happened in secret.

This slow but persistent destruction of the right to be left alone, which is ostensibly guaranteed by the Fourth Amendment, came about not only by secrecy and the absence of adversaries but also by judicial gullibility and constitutional infidelity.

Judges have a tendency to accept uncritically the unchallenged applications presented to them. This is an inherent defect for FISC judges, whose decisions slowly and materially weakened the already unconstitutional FISA probable cause standard. FISC judges have granted 99.97 percent of all applications for search warrants.

All of this is presented as historical and legal background for an understanding of the report of the Inspector General of the Department of Justice on the FBI’s use of FISA to surveil the Trump campaign in 2016 and 2017.

That report, released earlier this week, concludes that the original FISA statutory standard — probable cause of foreign agency — was met when Australian intelligence agents tipped off CIA and FBI agents to the boasts of one of Donald Trump’s foreign policy advisers that he had ties to the Kremlin.

The FBI then took that tip, added to it erroneous, incomplete and unverified materials, and persuaded FISC to issue warrants to surveil the Trump adviser and the campaign.

The DOJ IG found that the beginning of the investigation was lawful and nonpolitical, but its expansion and continuance manifested substantial violations of DOJ and FBI protocols.

There is more. FISA is not only unconstitutional; it is also inherently corrupting of government officials.

When government prosecutors seek a search warrant pursuant to the Fourth Amendment, they are careful to document all their allegations. They know that if their target is indicted, the target’s lawyers will have access to their applications for the search warrant and can challenge its issuance.

In the midst of a homicide trial, I once reversed and nullified a warrant that I had issued two years earlier when I learned that the government had intentionally kept exculpatory evidence from me; evidence that, had I known of it, would have dissuaded me from issuing the warrant. That is the beauty of our due process. The adversary system exposes the truth.

There is no such exposure under FISA, and FBI and National Security Agency agents know that. They also know that their methods and applications to the secret FISC will never be exposed to defense counsel or to the public.

Until now.

Now, we have seen in a case involving the president of the United States, a material alteration of a document, reliance on unverified allegations, substantial omissions, agents duping one another, applications signed by senior DOJ and FBI folks who never even read, much less questioned, what they signed — all done with the false comfort that their misdeeds would not come to light.

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My intelligence and law enforcement colleagues tell me that two generations of FBI agents have come of age believing that if they have a weak case, if they lack enough probable cause to obtain a search warrant, they can always get one from FISC.

The FISA court is repugnant to the Constitution and to the concept of an independent judiciary, and it took an IG report on the FBI and the president to demonstrate that.

CLICK HERE TO READ MORE BY JUDGE ANDREW NAPOLITANO

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Judge Andrew Napolitano: Supreme Court considering important gun rights case

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In a 2008 case called District of Columbia v. Heller, and again in a 2010 case called McDonald v. City of Chicago, the Supreme Court definitively interpreted the Second Amendment.

That amendment was written, the court ruled in both cases, to mandate the obligation of the federal government, as well as cities and states, to recognize, respect and permit the exercise of the right to self-defense, using the same level of technology as might be used against someone in the home. Stated differently, the high court twice held in the past 11 years that the right to own and keep and — if necessary — to use a gun in the home is a personal pre-political right.

“Pre-political” has a long and fascinating history. Its literal meaning is that whatever it is describing — here, the right to own a gun — preexisted the political order. It preexisted the government and the Constitution. So, where did it come from? That’s like asking where free thought and free speech came from. The right to self-defense is a natural human right, like thought and speech. We cannot be complete human beings enjoying life and liberty and pursuing happiness without the right to repel those who would harm us.

BERNIE SANDERS CALLS GUN BUYBACKS ‘UNCONSTITUTIONAL’ AT RALLY: IT’S ‘ESSENTIALLY CONFISCATION’

The court also ruled that the Second Amendment would be meaningless if it failed to protect the right to own and use weapons for self-defense of the same level of sophistication as an adversary — whether agents of a tyrant or a mob of thugs or a deranged killer.

One would expect that cities and states should have enacted laws to facilitate the exercise of that right. Instead, many have done the opposite, and none as absurd as New York City. There, the government enacted a bizarre ordinance that prohibited lawful gun owners from transporting their guns to any place outside city limits.

The practical effect of such a law prohibited the transportation of an unloaded gun to a shooting range or gun shop or private home outside the city. It also forced those gun owners who wished to remain skilled in the use of guns to practice their use only at any of three dingy, poorly equipped and out-of-the-way gun ranges in the Bronx.

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A group of New York City gun owners challenged the law as a material interference with their Second Amendment rights. Some of the owners had second homes in New Jersey and elsewhere in New York state where the ownership of their New York City-licensed guns is legal, but they could not lawfully transport their guns out of New York City.

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After the ordinance challenge failed in a federal district court and again in a federal appellate court in Manhattan, the gun owners asked for permission to appeal to the Supreme Court, which was granted. Then the city, fearing a reversal and invalidation of its ordinance, repealed the ordinance and enacted a new one in its place.

The new ordinance permitted transportation of New York City-licensed guns to places outside of the city where the guns are lawful, but required the owners to transport them there without stopping, in one complete trip. Can one stop for coffee, or for nature, or to visit mom? No.

Does any of this sound as if the government of New York City recognizes and respects the right to keep and bear arms? Of course not. So, why did the city change its gun ordinance? Why did it give the gun owners at the last minute before their case was to be heard almost all they sought? Because of the doctrine of “standing.”

“Standing” is a constitutional requirement of the existence of real adversity between litigants. Federal courts do not hear theoretical cases. They are required by the Constitution to hear cases and controversies in which the moving party can show that real harm has been caused by the responding party.

So, at the time of oral argument in the Supreme Court earlier this week, there was no such adversity between the gun owners and the city because the ordinance that the owners challenged no longer exists. Thus, the city asked the court to dismiss the appeal. Under usual circumstances, the court would do so.

In a famous New Jersey case, the lawyers finished oral argument before the Supreme Court and on their way out of the courthouse settled the case. That quick and amicable settlement divested the court of jurisdiction over the case because there was no longer a controversy and no one had standing to bring the appeal.

Will the New York City gun owners suffer the same fate? Perhaps not. There is a little-known and rarely used exception to the standing requirement — a judge-made exception — that holds that if a dispute repeatedly comes to the Supreme Court or if lower federal courts are repeatedly misinterpreting a Supreme Court decision, the Supreme Court will hear an appeal to stop the repeated appeals or to correct lower court misunderstandings, even if there is no adversity between the parties.

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Have lower federal courts been misinterpreting the Heller and McDonald cases? Yes. By one study, they have ruled 96 percent of the time in favor of city and state gun restrictions in the home and against the pre-political nature of the right to self-defense.

Are there constitutional implications in this case beyond standing? Yes. Heller and McDonald uphold the right to keep and bear arms only in and around one’s home. If the gun owners in this New York City case prevail, that right could be extended to public places outside the home, where police acknowledge that armed and well-trained civilians are most valued today. Even New York City would need to respect that.

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Judge Andrew Napolitano: What if? Big questions to think about on Thanksgiving

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

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

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

RICK MCDANIEL: THIS THANKSGIVING I DARE YOU TO TAKE THE NO COMPLAINT CHALLENGE

What if the leadership of both parties gives only lip service to Thomas Jefferson’s assertions in the Declaration of Independence that all humans “are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness” and that the purpose of government is not to redistribute wealth but to protect these rights?

What if the leadership of both parties dismisses those ideas as just Jefferson’s outdated musings? What if Jefferson’s words have been enacted into federal law that all in government have sworn to uphold?

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

What if President Trump has used high-tech drones to kill innocent foreign people in foreign lands and claimed that he has done so legally, relying not on a declaration of war from Congress but on the convenient arguments of former President Obama’s attorney general, who falsely told Obama his killings were consistent with due process?

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

What if the congressional leadership and most of the membership in Congress from both major political parties believe in perpetual war and perpetual debt? What if the political class believes that war is the health of the state? What if the leadership of that class wants war so as to induce the loyalty of its base, open the pocketbooks of the taxpayers and gain the compliance of the voters? What if the political class uses war to enrich its benefactors? What if the government has been paying for war by increasing its debt?

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

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

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

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

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

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

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

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

What if, on Thanksgiving Day, we are most grateful that we are free creatures made in God’s image and likeness? What if we can use our freedoms to reject the government?

CLICK HERE TO READ MORE BY JUDGE ANDREW NAPOLITANO

Westlake Legal Group NAPS-CROP Judge Andrew Napolitano: What if? Big questions to think about on Thanksgiving fox-news/us/personal-freedoms/proud-american fox-news/us/constitution fox-news/special/occasions/thanksgiving fox-news/opinion fox-news/lifestyle/thankful-nation fox-news/food-drink/recipes/meals/thanksgiving fnc/opinion fnc Creators Syndicate article Andrew Napolitano 0db76824-26f9-5d2b-93c2-de24d4418a79   Westlake Legal Group NAPS-CROP Judge Andrew Napolitano: What if? Big questions to think about on Thanksgiving fox-news/us/personal-freedoms/proud-american fox-news/us/constitution fox-news/special/occasions/thanksgiving fox-news/opinion fox-news/lifestyle/thankful-nation fox-news/food-drink/recipes/meals/thanksgiving fnc/opinion fnc Creators Syndicate article Andrew Napolitano 0db76824-26f9-5d2b-93c2-de24d4418a79

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Former Speaker Boehner Contradicts Fox’s Napolitano, Says GOP Did Not Change Impeachment Rules in 2015

Westlake Legal Group HouseGOPimpeachmentpresser-620x317 Former Speaker Boehner Contradicts Fox’s Napolitano, Says GOP Did Not Change Impeachment Rules in 2015 washington D.C. Social Media republicans Politics Ohio North Carolina Newsweek Media Matters Media journalism John Boehner Impeachment of President Trump impeachment Front Page Stories Front Page fox news Fox and Friends Featured Story Featured Post donald trump democrats Culture Congress Brit Hume Andrew Napolitano Allow Media Exception

House Republicans gather for a news conference after Deputy Assistant Secretary of Defense Laura Cooper arrived for a closed door meeting to testify as part of the House impeachment inquiry into President Donald Trump, Wednesday, Oct. 23, 2019, on Capitol Hill in Washington. (AP Photo/Patrick Semansky)

Newsweek gleefully reported yesterday about comments Fox News senior judicial analyst Andrew Napolitano made on Fox and Friends Thursday morning in the aftermath of the storming that took place on Wednesday by dozens of frustrated House GOP members into House Intel Chief Adam Schiff’s secret hearings.

During the segment, Napolitano told the hosts that the GOP had no one to blame themselves for how the current impeachment inquiry was being conducted. Why? According to him, the impeachment inquiry rules were written in 2015 by the GOP and signed by then-House Speaker John Boehner:

“As frustrating as it may be to have these hearings going on behind closed doors…they are consistent with the rules,” Napolitano, who previously served as a New Jersey Superior Court judge, explained during a segment of the Fox News morning show Fox & Friends.

“When were the rules written last?” the legal expert asked. “In January of 2015. And who signed them? John Boehner [the Republican speaker of the House]. And who enacted them? A Republican majority,” he asserted.

A video of the clip was tweeted out by Media Matters’ Bobby Lewis, who apparently is their designated monitor for Fox and Friends. The clip went viral, and as of this writing has over 29,000 retweets and nearly 80,000 likes:

In the next tweet, Lewis asserted – without evidence – that Napolitano “demolishe[d] Fox’s talking point that Dems need transparency.” Similarly, the Daily Beast ran a piece on the Judge’s comments, and uncritically passed them off as factual. “Napolitano … effectively dismantl[ed] the primary talking point of both Fox News and the Trump White House,” senior writer Matt Wilstein stated.

There’s just one problem: Boehner himself called BS on Judge Napolitano’s comments, as Brit Hume noted in a couple of tweets responding to the reports:

Boehner later confirmed that that’s what he said:

I assume Judge Nap is talking about a rule that was/is supposedly in the House Rules and Manual, an updated one of which is distributed every two years to the new Congress. Here’s how the process works:

Printed as a “House Document,” the Manual is usually authorized by House resolution at the end of a Congress for printing at the beginning of the following Congress. As such, the House document number reflects the Congress that authorized the printing although the cover page identifies the applicable Congress for the contents.

Let’s assume for grins and giggles that Napolitano is correct here. Even if he was, the book changes for each new Congress. 2015 was when the 114th Congress convened. We’re now in the 116th Congress. And as Rep. Dan Crenshaw (TX) pointed out Wednesday, the rulebook for this Congress clearly states on page 568 all House members should have access to the documents/transcripts, etc that Schiff is keeping under wraps:

Is Napolitano not aware of this?

As far as depositions being held in the public view goes, Byron York made this great point this morning:

Indeed. Too bad our intellectual betters in the mainstream media aren’t interested in finding out why that’s the case.

——-
— Based in North Carolina, Sister Toldjah is a former liberal and a 16+ year veteran of blogging with an emphasis on media bias, social issues, and the culture wars. Read her Red State archives here. Connect with her on Twitter. –

The post Former Speaker Boehner Contradicts Fox’s Napolitano, Says GOP Did Not Change Impeachment Rules in 2015 appeared first on RedState.

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Bad news from Judge Nap: Schiff’s following the rules … approved by House Republicans

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Who the heck told Adam Schiff that he could conduct impeachment inquiries in secret? As it turns out, Judge Andrew Napolitano told his colleagues on Donald Trump’s favorite morning show, it was John Boehner and the House Republican majority in 2015. “I read the House rules,” Napolitano told Fox & Friends, and “this initial level of inquiry can be done in secret.” Secret interviews were conducted in both the Nixon and Clinton impeachments, although by staff rather than by the committees involved, Napolitano notes, so what Schiff is doing isn’t without precedent after all:

This is a good rebuttal to accusations of a star-chamber approach, but it’s not a complete defense to them. While the idea of interviews and depositions being taken in secret are not new, this process for doing them is at best proving problematic. Staff attorneys would probably know to keep their mouths shut about what transpires in such depositions, but Schiff’s panel has been selectively leaking like a sieve ever since they started. His Democratic panel members have been all over the news making claims about blockbuster opening statements and testimony.

Judge Napolitano notes that this is similar to a grand-jury process where testimony will later get tested in court. Only in form is that statement true. In practice, grand juries take secret testimony all the time, but they are also forbidden by law to comment publicly on it. Schiff’s panel is trying the case in public without the president or his legal team able to access the witnesses or testimony, which seems less like a grand jury and more like a kangaroo court … or a star chamber.

The result of this is a process devoid of credibility, through the fault of Schiff and his House Democratic team. Furthermore, it’s entirely unclear that this will ever move to a fair process before the House votes on articles of impeachment. Napolitano is correct that staff attorneys took secret testimony in the previous two impeachment inquiries, but they then held public hearings for the cross-examinations that he describes, allowing the American public to see in real time what was being said and how reliable it was. Schiff’s use of the rules is aimed to avoid that step and go directly to impeachment, forcing the Senate to do the job the full House should have done in the first place.

Just because the rules allow it doesn’t make it good. Or right, either.

The post Bad news from Judge Nap: Schiff’s following the rules … approved by House Republicans appeared first on Hot Air.

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