In two decades at the nation’s largest cable network, Fox News analyst Andrew Napolitano has provided an unapologetically libertarian critique of state power, regardless of the party holding control in the nation’s capital. In the past several months, he has also emerged as one of President Donald Trump’s harshest critics, claiming in May 2019 that the Mueller Report demonstrated that the president had clearly obstructed justice.
Though he has said he thinks recent House hearings provided sufficient grounds for impeachment, the former New Jersey Superior Court judge sees an even bigger problem in how the federal executive continues to arrogate power to itself. “No American president in the post–Woodrow Wilson era has stayed within the confines of the Constitution,” Napolitano says. “And each president has more authority than his predecessors, for the simple reason that Democratic Congresses give power to Democratic presidents and Republican Congresses give power to Republican presidents.”
Napolitano spoke to Reason‘s Nick Gillespie shortly before the House of Representatives voted to impeach Trump on two counts in December.
Q: What is the case that Donald Trump committed impeachable offenses?
A: We have to start this conversation by underscoring the fact that impeachment is not legal. It is political, right? There’s a phrase in the Constitution that says the House of Representatives shall have the sole—that’s s-o-l-e—power of impeachment. Another phrase in the Constitution says each house of Congress shall write its own rules. Those rules don’t even have to be fair as long as they generate the support of the majority.
Q: Is this just a flex by Congress: “We hate Trump; we’ve wanted to unseat him from the beginning; all we have to do is get a majority of members”?
A: Blame that on James Madison, not on [California Democratic congressman] Adam Schiff. That’s the procedure.
Q: What do you make of the argument that Trump obstructed justice?
A: Because the House can write its own rules—which means it can say that the investigating committee has subpoena power—and because there are no defenses except those which come from the Constitution, the president cannot interfere with the investigation of himself without risking the obstruction of justice charge. So when [President Bill] Clinton said to his secretary, Betty Currie, “Don’t tell [the grand jury about my relationship with Monica Lewinsky],” and she did anyway, Clinton was charged with obstruction—because the attempt at obstruction doesn’t have to succeed; it only has to be articulated.
Q: How do you feel about this in other kinds of legal proceedings? The FBI, we know, can talk to you for hours in hopes of tripping you up and then charging you with obstruction.
A: This is why you should never talk to the FBI, even if you’re in the right. You’re asking me if this is “just” from a moral perspective, or [you’re asking] if it’s constitutional? It’s absolutely constitutional. Is impeachment just from the moral perspective? Probably not.
Q: Has Trump overstepped the bounds that the executive branch should be held to?
A: The evidence of his impeachable behavior at this point, in my view, is overwhelming. But being an ex-judge, being a lawyer, I have to withhold judgment until a defense is presented. The defense would have to come out of the mouths of people who’ve refused to testify: Vice President Mike Pence, Secretary of State Mike Pompeo, Chief of Staff Mick Mulvaney, and the president himself.
Q: Are we in a constitutional crisis?
A: I don’t think we are in a constitutional crisis. We would get to one if the president were removed from office and refused to leave.
You could argue there’s a mini constitutional crisis when the House demands something and the White House refuses to present it. That’s why we have a judiciary, but neither side wants to go to the judiciary, because both sides want this over with so they can get into the 2020 political season.
Q: What happens if this goes to the judiciary and one of the sides refuses to abide by the ruling?
A: Nixon famously refused to surrender his White House tapes. The case went to the Supreme Court, which unanimously ordered in United States v. Nixon that he had to surrender the tapes. Then Nixon resigned.
So if the Court were to order President Trump to surrender documents and he were to refuse, that would be a constitutional crisis.