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Number 1,022, May 26, 2019

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Calling Out Judge Andrew Napolitano
by Sean Gangol

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Special to L. Neil Smith’s The Libertarian Enterprise

After twelve years of writing for The Libertarian Enterprise, I have never shied away from calling out people who I thought were being disingenuous, whether they resided on the left or the right. I have even been willing to call out my fellow libertarians when I felt that they were being less than honest about a stance that they decided to take, just as I did with Reason magazine. Though I will say that I don’t take much joy in having to call out my fellow libertarians. In this particular case, it absolutely pains me to have to call out somebody that I have had nothing but admiration for, since I read his first book. Unfortunately, this man has said many things that I feel to be disingenuous, so I can’t allow him to go unchallenged.

Before I begin with the unpleasantries, I want to point out that I have been a long-time fan of Napolitano’s work going all the way back to his first book Constitutional Chaos: What Happens when the Government Breaks its Own Laws. I was also a regular watcher of his show “Freedom Watch” when it aired daily on the Fox Business channel. I remember how irate I was when they cancelled the show. It’s not to say that I have always agreed with the good judge, but I have always believed that he was a man of honesty and integrity. At least that was until recently.

I did have some minor issues with what Napolitano wrote in his book, Dredd Scott’s Revenge: A Legal History of Race and Freedom in America. One of them was the chapter on the internment of Japanese Americas, where he said that neither German or Italian Americans were treated in this same matter. In reality, German and Italian Americans were interned alongside Japanese Americans. Now if the good judge meant that the US government was less selective in their internment of Japanese Americans that would probably be closer to the truth, though he should have done a better job clarifying his point. What I really take issue with his chapter on the so-called Southern Strategy, which he claimed was an actual strategy where Republicans tried to court segregationists in the South. I know that this narrative has been repeated often by the left, but it has actual been debunked on several occasions, which is something the good judge should have known about.

At least I can sum up these claims as simple errors, though I would have expected more from a judge and legal scholar. When it comes to what Napolitano has said about Donald Trump, it actually goes far beyond simple errors. He has accused Trump of obstructing justice during the Mueller investigation and has even criticized the President for breaking the law when he got funding for his border wall by Declaring a State of Emergency. He has also criticized Trump for his immigration policies. It seems obvious that Napolitano has some animosity towards the president, which I don’t necessarily have a problem with. As I have said before Donald Trump was far from being my first choice as president. The good judge is entitled to his own opinion, but he is not entitled to his own set of facts.

I won’t spend too much on the judge’s stance on illegal immigration, though I will say that I find his Open Borders position to be naïve and misguided. That being said, my major beef with Napolitano on this issue is when he falsely states that the Trump administration favors keeping the children of illegal aliens in cages while the Obama administration regularly favored a Catch and Release policy. This is the kind of nonsense that I would come to expect from the left, but I honestly would have expected much more from Napolitano. It’s interesting how he ignores a little inconvenient fact that the policy of detaining children was routinely practiced during the Obama administration. As a matter of fact, those infamous pictures showing those “caged” children were actually taken in 2014, which Trump pointed out himself once they were made public. This could be summed up as another error made by the judge, but you have to wonder how this man was able to get through college, much less law school with such poor research skills.

It’s not to say that Donald Trump is above criticism. I have had my own series of disagreements with the man. If you want to criticize the man for Declaring a State of Emergency to obtain funding for the Border Wall, go right ahead. It is certainly debatable whether a president should be exercising a power that the Constitution actually delegated to Congress, however you can’t pretend that the declaration was some new power that Trump gave himself. He said that Trump had broken the law when he made the declaration, which would actually be false, considering that presidents have had this power since Gerald Ford signed it into law. Just about every president since 1976, has used this power at least twice. You can argue that the law is unconstitutional and that presidents shouldn’t have the power to declare emergencies, but if you criticize Trump for using it, then you need to criticize all the previous administrations as well. Seriously, how does a guy who now works as a legal analyst for Fox News not know this?

On top of all that he has accused Donald Trump of obstructing justice when he fired Comey and did various things to prevent the Mueller investigation from preceding. Since it appears that there was no collusion between Trump and the Russian government, it would mean that there would have been no actual crime for Trump to cover up. So, if there was no crime, then how can there be an attempt to obstruct justice? I also find it telling that left-wing attorney, Alan Dershowitz was able to point out that since Trump’s actions fell within the powers that are delegated to the presidency by the Constitution, you can’t really say that he obstructed justice. As a strict Constitutionalist, the good judge should have known that as well.

Trump claims that Napolitano has held a grudge against him ever since the judge’s bid for a job as a Supreme Court Justice and his request to have a friend pardoned were both denied. Though Napolitano claims that he actually advised Trump on who he thought was the best to fill the vacant Supreme Court seat. Whatever the case may be, it does sound like the good judge is holding a petty grudge against the president.

I will conclude this article with a message to Judge Napolitano. I have been a long-time admirer of your work and the qualities that I admired the most about you were your honesty and integrity. Sadly, your vendetta against Trump has made you compromise those very qualities. You have to know that the accusations that you leveled against Trump are false. As a judge and a legal scholar, you really can’t use ignorance as an excuse for the falsehoods that you have leveled against the president. I also find it telling that when Trump fired back at you, you acted as if you were the one being betrayed. You asked “Is this how Trump treats his friends?” One can ask the same about a man who accuses his friends of engaging in criminal activity. I can certainly say that I would definitely not be on speaking terms with my friends if I ever accused them of the crimes you accused Trump of committing. I don’t know if this vendetta stemmed from Trump not giving you a seat on the Supreme Court or because he wouldn’t give your friend a pardon, but I can definitely say that the quality that you will ultimately lose in the end is your credibility. It’s the one quality that is almost impossible to get back, once you lose it.

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