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Andrew P. Napolitano

Andrew P. Napolitano

Andrew Peter Napolitano (born June 6, 1950) is the Senior Judicial Analyst for Fox News Channel, commenting on legal news and trials, and is a syndicated columnist whose work appears in numerous publications, such as Fox News, The Washington Times, and Reason. Having served as a New Jersey Superior Court Judge, he now teaches constitutional law as a Distinguished Professor at Brooklyn Law School. Napolitano has written nine books on constitutional, legal, and political subjects.

Articles by Andrew P. Napolitano

Beware a Government of Fear

6 days ago

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“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” — Benjamin Franklin (1706-1790)
One of my Fox colleagues recently sent me an email attachment of a painting of the framers signing the Constitution of the United States. Except in this version, George Washington — who presided at the Constitutional Convention — looks at James Madison — who was the scrivener at the Convention — and says, “None of this counts if people get sick, right?”
In these days of state governors issuing daily decrees purporting to criminalize the exercise of our personal freedoms, the words put into Washington’s mouth are only mildly amusing. Had

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Freedom in a Time of Madness

13 days ago

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“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.” — Ex parte Milligan, U.S. Supreme Court (1866)
During the Civil War, when President Abraham Lincoln thought it expedient to silence those in the northern states who challenged his wartime decisions by incarcerating them in military prisons in the name of public safety, he was rebuked by a unanimous Supreme Court. The essence of the rebuke is that no matter the state of difficulties — whether war or pestilence — the Constitution protects our natural rights, and its provisions are to be upheld

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Can the Government Restrict Travel to Protect Public Health?

20 days ago

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The issue of whether government in America can quarantine persons against their will, ostensibly for their own health and that of others with whom they may come in contact, requires a dual analysis — one of the powers of the federal government and the other of the powers of the states. For constitutional analysis purposes, since local and regional governments derive their powers from the states in which they are located, the analysis of state powers pertains to them as well.
We begin our analysis with the observation of the truism that freedom is the default position. The language of the Declaration of Independence, as well as various amendments in the Bill of Rights, unambiguously reflects the

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Repeal the Patriot Act

27 days ago

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I have been writing for years about the dangers to human freedom that come from government mass surveillance. The United States was born in a defiant reaction to government surveillance. In the decade preceding the signing of the Declaration of Independence, the villains were the Stamp Act and the Writs of Assistance Act. Today, the villain is the Patriot Act.
Here is the backstory.
In 1765, when the British government was looking for creative ways to tax the colonists, Parliament enacted the Stamp Act. That law required all persons in the colonies to purchase stamps from a British government vendor and to affix them to all documents in one’s possession. These were not stamps as we use today,

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Punishing the Free Speech of Julian Assange

February 27, 2020

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“Congress shall make no law… abridging the freedom of speech.” — First Amendment to the U.S. Constitution
In the oral argument of the famous U.S. Supreme Court cases known collectively as the Pentagon Papers Case, the late Justice William O. Douglas asked a government lawyer if the Department of Justice views the “no law” language in the First Amendment to mean literally no law. The setting was an appeal of the Nixon administration’s temporarily successful efforts to bar The New York Times and The Washington Post from publishing documents stolen from the Department of Defense by a civilian employee, Daniel Ellsberg.
The documents were a government-written history of the Vietnam War, which

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The Curious Case of Roger Stone

February 20, 2020

Roger Stone is a gifted political consultant known for going the distance for his clients. He has worked for such marquee names as Richard Nixon, Ronald Reagan, Tom Kean and Donald Trump. His expertise is the lawful destruction of the opposition candidacy — what is known in the trade as opposition research. In that process, he has made enemies, some of whom have sought to destroy him.
That process of destruction began a year ago, when he was ordered out of the bedroom that he shared with his wife, and out of their home at 5:30 in the morning by no less than 23 federal agents carrying assault weapons. Behind his home on a Fort Lauderdale canal was a government boat filled with federal agents. Above his home was a government

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A Primer on Domestic Spying

February 13, 2020

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“The Framers … conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.” — Justice Louis Brandeis (1856-1941)
While we were all consumed by impeachment, a pernicious piece of legislation was slowly and silently making its way through Congress. It is a renewal of Section 215 of the Patriot Act.
The Patriot Act of 2001 has three sections that are scheduled to expire on March 15. One of those sections is the infamous 215, which authorizes the federal government to capture without a warrant all records of all people in America held by third parties.
Do we really want the federal government to spy without

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Acquitted But Not Exonerated

February 6, 2020

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“The party told you to reject the evidence of your eyes and ears. It was their final, most essential command.” — George Orwell, “1984”
The Senate trial of President Donald Trump ended not with a bang but a whimper. What different outcome could one expect from a trial without so much as a single witness, a single document, any cross-examination or a defendant respectful enough to show up?
Law students are taught early on that a trial is not a grudge match or an ordeal; it is a search for the truth. Trial lawyers know that cross-examination is the most effective truth-testing tool available to them. But the search for the truth requires witnesses, and when the command from Senate Republican

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A Primer on the Separation of Powers

January 30, 2020

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The president of the United States is on trial in the Senate. It is an impeachment trial and, thus far, has consisted of remarks made by impeachment managers from the House of Representatives, who have argued that the president should be removed from office for abuse of power and contempt of Congress, and the president’s lawyers, who have argued that he did not abuse power or behave contemptuously, and even if he did, those are not impeachable offenses.
These arguments often rely on differing views of the relationship between the three branches of the federal government. That relationship is called the separation of powers.
The separation of powers reflects that the three branches are

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What Does It Take To Remove a President?

January 23, 2020

I don’t blame President Donald Trump for his angst and bitterness over his impeachment by the House of Representatives. In his mind, he has done “nothing wrong” and not acted outside the constitutional powers vested in him, and so his impeachment should not have come to pass. He believes that the president can legally extract personal concessions from the recipients of foreign aid, and he also believes that he can legally order his subordinates to ignore congressional subpoenas.
Hence, his public denunciations of his Senate trial as a charade, a joke and a hoax. His trial is not a charade or a joke or a hoax. It is deadly serious business based on well-established constitutional norms.
The House of Representatives — in

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A Tangled Web of Deception

January 16, 2020

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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 two weeks ago. 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

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A Lawless Political Assassination

January 9, 2020

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

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Office Pool 2020

January 2, 2020

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1) In 2020, President Donald 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.d.  be re-elected.
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.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 Barack Obama did in eight years.b.  direct the IRS to lower the top tax rate to 15%.c.  appoint former New Jersey Gov. Chris Christie to the President’s Council on Sports, Fitness and

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Christmas in America

December 26, 2019

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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

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Shall Anyone Be Above the Law?

December 19, 2019

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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

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What’s Wrong With FISA?

December 12, 2019

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Congress enacted the Foreign Intelligence Surveillance Act 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

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The Supreme Court and the Right To Keep and Bear Arms

December 5, 2019

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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 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

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For What Should We Be Thankful?

November 28, 2019

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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

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The Dangers of an Imperial Presidency

November 21, 2019

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Throughout the House of Representatives’ impeachment inquiry, President Donald Trump has been pushing Attorney General William Barr to make a public statement on the president’s behalf. He wants Barr to state publicly that even if the president did what congressional Democrats claim — conditioning the release of $391 million in vital military and financial aid to Ukraine upon the announcement of a Ukrainian government investigation of former Vice President Joe Biden — such behavior did not constitute impeachable offenses.
The attorney general, to his credit, has declined to comply with the president’s wishes. But he did stir the pot earlier this week with a partisan speech on the nature of the

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Is Ignorance of the Constitution Trump’s Defense?

November 14, 2019

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“Well, when the president does it, that means that it is not illegal.” — Richard M. Nixon (1913-1994)
As public hearings on impeachment begin this week, we will see the case for and the case against impeaching President Donald Trump. The facts are largely undisputed, but each side has its version of them.
The Democrats will argue that in his July 25, 2019 telephone call with his Ukrainian counterpart, seen in the context of months of negotiations between American and Ukrainian diplomats, Trump made it known that if the Ukrainian government wanted the $391 million in military and financial aid that Congress authorized and ordered, it first must offer, or announce that it was seeking, dirt on his

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Winston, I Need a Favor First

November 7, 2019

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Peggy Noonan, who wrote brilliant speeches for Ronald Reagan and now writes gifted columns for The Wall Street Journal, and whose friendship I have enjoyed for many years, recently put forth a hypothetical historical analogy that stopped me in my tracks.
Let’s look at some background before getting to it.
Late last week, the House of Representatives adopted a resolution authorizing formal investigations into whether President Donald Trump has committed impeachable offenses while in office. The resolution directed five House standing committees to investigate the president’s behavior and to report the results of those investigations to the House Judiciary Committee.
Under House rules — enacted in

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The President and the Constitution (Again)

October 24, 2019

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In nearly three years in office, President Donald Trump has spent federal dollars not authorized by Congress, separated families and incarcerated children at the Texas/Mexico border in defiance of a federal court order, pulled 1,000 American troops out of Syria ignoring a commitment to allies and facilitating war against civilians, and sent 2,000 troops to Saudi Arabia without a congressional declaration of war.
He has also criminally obstructed a Department of Justice investigation of himself but escaped prosecution because of the intercession of an attorney general more loyal to him than to the Constitution.
At the outset of his presidency, Trump took the presidential oath of office promising

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Is the Impeachment Process Fair?

October 17, 2019

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Last week, the White House legal counsel wrote to congressional leaders stating President Donald Trump’s legal views of the impeachment investigation now being conducted by the House of Representatives. The essence of Pat Cipollone’s letter argued that the impeachment investigation is illegitimate, unconstitutional and unfair.
The illegitimacy argument contended that since the House has yet to vote to authorize an investigation of the president, its committees lack subpoena power. The unconstitutional argument offered that since impeachment seeks to overturn a valid election, it is a thinly veiled coup and thus is in violation of the Constitution. And his unfairness argument states that the

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The Presidency and War Power

October 10, 2019

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Readers of this column are familiar with the concept of the separation of powers, which James Madison crafted as integral to the Constitution. That concept mandates that Congress writes the laws, the president enforces them, the courts decide what they mean and interpret them, and the three branches of government don’t step on each other’s toes.
The separation of powers also recognizes that the Constitution reposes unique authority in each branch and, at times, in each house of Congress. For example, only the Senate can confirm judges and ambassadors and ratify treaties. Only the House can impeach high-ranking executive branch officials and federal judges. Only Congress can declare war, and only

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Trump Attacks His Own Presidency

October 3, 2019

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The House of Representatives has begun to gather evidence in an effort to determine if President Donald Trump has committed impeachable offenses. The Constitution defines an impeachable offense as “treason, bribery, or other high crimes and misdemeanors.” The president need not have committed a crime in order to be impeached, but he needs to have engaged in behavior that threatens the constitutional stability of the United States or the rule of law as we have come to know it.
Has Trump committed any impeachable offenses?
A CIA agent formerly assigned to the White House — and presently referred to as the whistleblower — has brought to the attention of the Director of National Intelligence a July

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Brazen Acts of Corruption

September 26, 2019

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Last week, media outlets reported the existence of a whistleblower complaint filed with the inspector general of the intelligence community against President Donald Trump. The IC encompasses all civilian and military employees and contractors who work for the federal government gathering domestic and foreign intelligence.
The inspector general — a position appointed by the president and confirmed by the Senate — exists in all parts of the executive branch of the government, except for the White House, to examine and determine if officials are following the law.
A whistleblower refers to a person who works for the government and who believes that her or his colleagues and bosses are engaged in

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Don’t Smile for the Cameras

September 19, 2019

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A trial in Great Britain has just concluded with potentially dangerous implications for personal freedom here.
Great Britain is currently the most watched country in the Western world — watched, that is, by its own police forces. In London alone, the police have erected more than 420,000 surveillance cameras in public places. That amounts to 48 cameras per 1,000 residents. What do the cameras capture? Everything done and seen in public.
The cameras use facial recognition technology that can capture a grimace, a pimple, a freckle, even an eye blink as you walk the streets. Software then compares whatever the camera captures to government databases. By touching the screen showing your image, the

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Who Cares What the Government Thinks?

September 12, 2019

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In 1791, when Congressman James Madison was drafting the first 10 amendments to the Constitution — which would become known as Bill of Rights — he insisted that the most prominent amendment among them restrain the government from interfering with the freedom of speech. After various versions of the First Amendment had been drafted and debated, the committee that he chaired settled on the iconic language: “Congress shall make no law … abridging the freedom of speech.”
Madison insisted upon referring to speech as the freedom of speech, not for linguistic or stylistic reasons, but to reflect its pre-political existence. Stated differently, according to Madison — who drafted the Constitution as well

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The Temptation of Tyranny

September 5, 2019

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Does the president of the United States have too much power?
That question has been asked lately with respect to President Donald Trump’s use of federal funds to construct 175 miles of sporadic walls along portions of the 2,000-mile common border between Texas and Mexico. After Congress expressly declined to give him that money, Trump signed into law — rather than vetoed — the legislation that denied him the funds he sought and then spent the money anyway.
It has also been asked with respect to his imposition of sales taxes — he calls them tariffs — on nearly all goods imported into the United States from China, taxes that only Congress can constitutionally authorize. And it has been asked in

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A Nonemergency of His Own Making

August 29, 2019

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Late last week, President Donald Trump issued a tweet in which he purported to order American businesses to cease doing work with their employees and contract partners in China.
He claimed he was exercising presidential powers pursuant to what he contended was the national emergency surrounding the trading relationship between the United States and China.
Since he did not declare a national emergency, he did not notify Congress and give it the opportunity to ratify or reject his executive orders. In fact, he didn’t even sign any executive orders on this.
He merely ordered American businesses in a tweet to cease all commercial activities with anyone in China. It appears that no American company

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