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. 🙂
Is it worth impairing the reputation of the FBI and the Department of Justice to save Hillary Clinton from a deserved criminal prosecution by playing word games? What has become of the rule of law — no one is beneath its protections or above its requirements — when the American public can witness a game of political musical chairs orchestrated by Bill Clinton at an airport in a bizarre ruse to remove the criminal investigation of his wife from those legally responsible for making decisions about it? How hairsplitting can the FBI be in acknowledging “extreme carelessness” while denying “gross negligence” about the same events, at the same time, and in the same respect? These are questions that now beg for answers in light of what can only be the politically motivated FBI report delivered earlier this week on the likely criminal behavior of Hillary Clinton. The espionage statute that criminalizes the knowing or grossly negligent failure to keep state secrets in a secure venue is the rare federal statute that can be violated and upon which a conviction may be based without the need of the government to prove intent. Thus, in the past two years, the Department of Justice has prosecuted a young sailor for sending a single selfie to his girlfriend that inadvertently showed a submarine sonar screen in its background. It also prosecuted a Marine lieutenant who sent his military superiors a single email about the presence of al Qaeda operatives dressed as local police in a U.S. encampment in Afghanistan — but who inadvertently used his Gmail account rather than his secure government account. And it famously prosecuted Gen. David Petraeus for sharing paper copies of his daily calendar in his guarded home with a military colleague also in the home — someone who had a secret security clearance herself — because the calendar inadvertently included secret matters in the pages underneath the calendar. Yet earlier this week, FBI Director James Comey — knowing that his bosses in the Department of Justice would accept his legal conclusions about Mrs. Clinton’s failure to keep state secrets secure because they had removed themselves from independently judging the FBI’s work — told the public that whereas the inadvertence of the above defendants was sufficient to justify their prosecutions, somehow Mrs. Clinton’s repeated recklessness was not. It is obvious that a different standard is being applied to Mrs. Clinton than was applied to Gen. Petraeus and the others. It is also now painfully obvious that the game of musical chairs we all witnessed last week when Bill Clinton entered the private jet of Mr. Comey’s boss — Attorney General Loretta Lynch — unannounced and spent 30 private minutes there with her at a time when both he and his wife were targets of FBI criminal probes was a trick to compromise Mrs. Lynch and remove her and her aides from the Justice Department chain of command regarding the decision as to whether to present evidence of crimes against either of the Clintons to a federal grand jury. Why do we stand for this? The criminal case against Mrs. Clinton would have been overwhelming. The FBI acknowledged that she sent or received more than 100 emails that contained state secrets via one of her four home servers. None of those servers was secure. Each secret email was secret when received, was secret when sent and is secret today. All were removed from their secure venues by Mrs. Clinton, who knew what she was doing, instructed subordinates to white-out “secret” markings, burned her own calendars, destroyed thousands of her emails and refuses to this day to recognize that she had a duty to preserve such secrets as satellite images of North Korean nuclear facilities, locations of drone strikes in Pakistan and names of American intelligence agents operating in the Middle East under cover. Why do we stand for this? Mr. Comey has argued that somehow there is such a legal chasm between extreme carelessness and gross negligence that the feds cannot bridge it. That is not an argument for him to make. That is for a jury to decide after a judge instructs the jury about what Mr. Comey fails to understand: There is not a dime’s worth of difference between these two standards. Extreme carelessness is gross negligence. Unless, of course, one is willing to pervert the rule of law yet again to insulate a Clinton yet again from the law enforcement machinery that everyone else who fails to secure state secrets should expect. Why do we stand for this?
We shouldn’t, Judge. Former New Jersey Superior Court Judge Andrew Napolitano is responsible for that outstanding legal analysis. Now.. Read the article immediately below and read what an Army lawyer thinks about this same subject.