“If the provisions of the Constitution be not upheld when they pinch, as well as when they comfort, they may as well be abandoned.” — Justice George Sutherland (1862-1942)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is a head-scratcher.

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

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

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

Here is the back story.

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

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

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

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

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

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

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

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

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

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

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

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

“When the president does it, that means that it is not illegal.” — Richard M. Nixon (1913-94)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here is the back story.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Copyright 2019 Andrew P. Napolitano.