The Senate Intelligence Committee’s ranking members updated the public today about their probe into Russian meddling in the 2016 election. Sen. Richard Burr (R-N.C.) said the investigation is continuing into whether there was collusion between the Trump campaign and Russians. “The committee continues to look into all evidence to see if there was any hint of collusion. The issue of collusion is still open,” he said. Judge Andrew Napolitano said today that the press conference was a positive for President Trump, since the evidence of collusion remains to be seen. “If there was evidence, we would know it,” said Napolitano, adding that “partisans,” like ranking Democrat Sen. Mark Warner (D-Va.), would have divulged the information by now. “They’d be flying a freak flag on that. Are you kidding me? It’d be leaking all over the place,” Harris Faulkner agreed. He predicted President Trump will tweet that the press conference shows there is no “there there” when it comes to the Russia investigation. The senior judicial analyst pointed out that special counsel Robert Mueller’s investigation is focused on the collusion question and is “100 times broader” than the intelligence committee’s probe. Click here to watch more.
Last week, in a public courtroom in the federal courthouse in Seattle, the states of Washington and Minnesota — after suing President Donald Trump, alleging injury caused by his executive order that suspended the immigration of all people from seven foreign countries — asked a federal judge to compel the president and all those who work for him to cease enforcing the order immediately. After a brief emergency oral argument, the judge signed a temporary restraining order, which barred the enforcement of the president’s order everywhere in the United States. The president reacted with anger, referring to the judge as a “so-called judge,” and immigrant rights groups praised the judicial intervention as a victory for the oppressed. The president meant, I think, that Judge James L. Robart had not acted properly as a judge by second-guessing him — that he had acted more like a politician; and the immigrant rights groups felt, I think, that the United States was once again a beacon of hope for refugees. Here is the back story. A 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security. Trump exercised that authority in accordance with the 1952 law when he signed his Jan. 27 order banning all immigration from the seven named countries. When the president exercises powers granted to him by the Constitution or federal statues or when Congress passes bills, one cannot simply sue the government in federal court because one does not like what has been done. That is so because the Constitution has preconditions for a lawsuit in federal court. One of those preconditions is what lawyers and judges call “standing.” Standing means that the plaintiff has alleged and can most likely show that the defendant has caused the plaintiff an injury in fact, distinct from all others not in the case. Hence, it is curious that the plaintiffs in the Seattle case were not people whose entry had been barred by Trump’s order but rather the governments of two states, each claiming to sue in behalf of people and entities resident or about to be resident in them. The court should have dismissed the case as soon as it was filed because of long-standing Supreme Court policy that bars federal litigation alleging harm to another and permits it only for the actual injury or immediate likelihood of injury to the litigant. Nevertheless, the Seattle federal judge heard oral argument on the two states’ emergency application for a temporary restraining order against the president. During that oral argument, the judge asked a lawyer for the Department of Justice how many arrests of foreign nationals from the seven countries singled out by the president for immigration suspension there have been in the United States since 9/11. When the DOJ lawyer said she did not know, the judge answered his own question by saying, “None.” He was wrong. There have been dozens of people arrested and convicted in the United States for terrorism-related crimes since 9/11 who were born in the seven countries. Yet even if the judge had been correct, his question was irrelevant — and hence the answer meaningless — because it does not matter to a court what evidence the president relied on in this type of order. This is the kind of judicial second-guessing — substituting the judicial mind for the presidential mind — that is impermissible in our system. It is impermissible because the Constitution assigns to the president alone nearly all decision-making authority on foreign policy and because Congress has assigned to the president the power of immigration suspension as a tool with which to implement foreign policy. These rules and policies — the requirement of standing before suing and the primacy of the president in making foreign policy — stem directly from the Constitution. Were they not in place, then anyone could sue the government for anything and induce a federal judge to second-guess the president. That would convert the courts into a super-legislature — albeit an unelected, unaccountable, opaque one. I am not suggesting for a moment that the courts have no place here. Rather, they have a vital place. It is to say what the Constitution means, say what the statutes mean and determine whether the government has exercised its powers constitutionally and legally. It is not the job of judges to decide whether the government has been smart or prudent, though. One of the arguments made by the state of Washington to explain why it had standing was laughable. Washington argued that corporations located in Washington would suffer the irreparable loss of available high-tech-qualified foreign employees if the ban were upheld. Even if this were likely and even if it were provable, it would not establish injury in fact to the government of Washington. When pressed to reveal what entity Washington was trying to protect, it enumerated a few familiar names, among which was Microsoft. Microsoft? The government of the state of Washington is suing to protect Microsoft?! Microsoft could buy the state of Washington if Starbucks were willing to sell it. I jest to make a point. The rule of law needs to be upheld. Carefully paying attention to constitutional procedure protects personal freedom. In similar environments, the late Justice Antonin Scalia often remarked that much of what the government does is stupid but constitutional and that the courts’ only concern is with the latter. The DOJ is now challenging the Seattle restraining order in the 9th U.S. Circuit Court of Appeals, and this case may make its way to the Supreme Court. Will federal judges be faithful to the rule of law? We shall soon find out.
And, as we just learned this evening, the 9th “Circus” in San Fran (the most overturned, and liberal, federal appellate court in the country) upheld this breathtakingly poor decision, unfortunately. But, this fight is FAR from over. We’ll, of course, keep an eye on how this develops. This outstanding legal lesson was written by former New Jersey Judge Andrew Napolitano. Please consider this your Read of the Day. If you read but one article here at The Daily Buzz, then READ THIS!! Then, pass it along to friends and family members who may not understand what all is happening. It’s an excellent, and very timely, legal primer. 🙂
Late last week, the inspector general of the State Department completed a yearlong investigation into the use by Hillary Clinton of a private email server for all of her official government email as secretary of state. The investigation was launched when information technology officials at the State Department under Secretary of State John Kerry learned that Mrs. Clinton paid an aide to migrate her public and secret State Department email streams away from their secured government venues and onto her own, non-secure server, which was stored in her home. The migration of the secret email stream most likely constituted the crime of espionage — the failure to secure and preserve the secrecy of confidential, secret or top-secret materials. The inspector general interviewed Mrs. Clinton’s three immediate predecessors — Madeleine Albright, Colin Powell and Condoleezza Rice — and their former aides about their email practices. He learned that none of them used emails as extensively as Mrs. Clinton, none used a private server and, though Gen. Powell and Miss Rice occasionally replied to government emails using private accounts, none used a private account when dealing with state secrets. Mrs. Clinton and her former aides declined to cooperate with the inspector general, notwithstanding her oft-stated claim that she “can’t wait” to meet with officials and clear the air about her emails. The inspector general’s report is damning to Mrs. Clinton. It refutes every defense she has offered to the allegation that she mishandled state secrets. It revealed an email that hadn’t been publicly made known showing Mrs. Clinton’s state of mind. And it paints a picture of a self-isolated secretary of state stubbornly refusing to comply with federal law for venal reasons; she simply did not want to be held accountable for her official behavior. The report rejects Mrs. Clinton’s argument that her use of a private server “was allowed.” The report makes clear that it was not allowed, nor did she seek permission to use it. She did not inform the FBI, which had tutored her on the lawful handling of state secrets, and she did not inform her own State Department information technology folks. The report also makes clear that had she sought permission to use her own server as the instrument through which all of her email traffic passed, such a request would have been flatly denied. In addition, the report rejects her argument — already debunked by the director of the FBI — that the FBI is merely conducting a security review of the State Department’s email storage and usage policies rather than a criminal investigation of her. The FBI does not conduct security reviews. The inspector general does. This report is the result of that review, and Mrs. Clinton flunked it, as it reveals that she refused to comply with the same State Department storage and transparency regulations she was enforcing against others. Here is what is new publicly: When her private server was down and her BlackBerry immobilized for days at a time, she refused to use a government-issued BlackBerry because of her fear of the Freedom of Information Act. She preferred to go dark, or back to the 19th-century technology of having documents read aloud to her. This report continues the cascade of legal misery that has befallen her in the past eight months. The State Department she once headed has rejected all of her arguments. Two federal judges have ordered her aides to testify about a conspiracy in her office to evade federal laws. She now awaits an interrogation by impatient FBI agents, which will take place soon after the New Jersey and California primaries next week. Her legal status can only be described as grave or worse than grave. We know that Mrs. Clinton’s own camp finally recognizes just how dangerous this email controversy has become for her. Over the Memorial Day weekend, John Podesta, the chairman of Mrs. Clinton’s campaign, sent an email to her most important donors. In it, he recognizes the need to arm the donors with talking points to address Mrs. Clinton’s rapidly deteriorating support with Democratic primary voters. The Podesta email suggests attempting to minimize Mrs. Clinton’s use of her private server by comparing it to Gen. Powell’s occasional use of his personal email account. This is a risky and faulty comparison. None of Gen. Powell’s emails from his private account — only two or three dozen — contained matters that were Confidential, Secret or Top-Secret. Mrs. Clinton diverted all of her email traffic to her private server — some 66,000 emails, about 2,200 of which contained state secrets. Moreover, Gen. Powell never used his own server, nor is he presently seeking to become the chief federal law enforcement officer in the land. The inspector general who wrote the report was nominated by President Obama and confirmed by the Senate in 2013, after Mrs. Clinton left office. He did a commendable job — one so thorough and enlightening that it has highlighted the important role that inspectors general play in government today. Today every department in the executive branch has, by law, an inspector general in place who has the authority to investigate the department — keeping officials’ feet to the fire by exposing failure to comply with federal law. If you are curious as to why the inspector general of the State Department during Mrs. Clinton’s years as secretary did not discover all of Mrs. Clinton’s lawbreaking while she was doing it, the answer will alarm but probably not surprise you. There was no inspector general at the State Department during Mrs. Clinton’s tenure as secretary — a state of affairs unique in modern history; and she knew that. How much more knowledge of her manipulations will the Justice Department tolerate before enforcing the law? • Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, and is the author of seven books on the U.S. Constitution.
Drip.drip.drip.. As we’ve been saying for months here at The Daily Buzz, Hillary’s legal woes will only get worse as this campaign season rolls on. Judge Napolitano’s blistering analysis of Hillary felonious activities, and her efforts to cover them up are just the beginning. There is more to come.. Stay tuned!