DID REFUSAL SHAPE FUTURE “LEGAL” OPINIONS?
by Sharon Rondeau
(Apr. 28, 2019) — Late Saturday night, following a nearly-two-hour rally in Green Bay, WI, President Trump claimed on Twitter that Fox News Senior Judicial Analyst Andrew Napolitano asked him to nominate him to the U.S. Supreme Court.
“…Ever since Andrew came to my office to ask that I appoint him to the U.S. Supreme Court, and I said NO, he has been very hostile!” Trump said in a single tweet. “Also asked for pardon for his friend. A good ‘pal’ of low ratings Shepard Smith.” [sic]
Trump did not state when the requests were allegedly made.
Napolitano has shown arguable bias in his commentary involving the White House on numerous occasions, which often occur on Smith’s 3:00 p.m. weekday FNC news hour.
In an editorial published Thursday, Napolitano suggested that Trump “obstructed justice” when he reportedly asked then-FBI Director James Comey to consider “letting go” a probe of Lt. Gen. Michael Flynn (Ret), Trump’s first national security adviser, after transcripts of Flynn’s communications with then-Russian ambassador to the U.S. Sergey Kislyak during the transition showed that he had misled Vice President-Elect Pence about the substance of those conversations.
No one has yet revealed who leaked the substance of the transcripts to the media, ultimately leading to Flynn’s firing on February 13, 2017.
While a number of analysts have said that Flynn’s communicating with Kislyak and other foreign ambassadors would have been routine for members of a presidential transition team, Napolitano opined that ” Such a communication could have been unlawful if it interfered with American foreign policy.”
Further, Napolitano wrote:
So, when Trump learned of the lie, he fired Flynn. Yet in his plea negotiations with Mueller, Flynn revealed why he discussed sanctions with Kislyak — because the pre-presidential Trump asked him to do so. An honest revelation by Trump could have negated Flynn’s prosecution. But the revelation never came.
Last week, Attorney General William Barr released publicly a redacted version of Mueller’s final report. That report concluded that notwithstanding 127 confirmed communications between the campaign and Russians from July 2015 to November 2016 (Trump said there were none), the government could not prove the existence of a conspiracy.
Napolitano is relying on a memo Comey wrote after a private meeting with Trump in which Trump allegedly asked Comey to treat Flynn gently. Shortly after releasing an initial 568-page report last June, DOJ Inspector General Michael Horowitz confirmed to Fox News that Comey is under investigation for releasing at least two memos later deemed to contain “classified information.”
In that report, the IG faulted Comey for “insubordination” as a result of his declaring at a solo press conference July 5, 2016 that the FBI would not be recommending Hillary Clinton to the DOJ for criminal prosecution. Comey’s contention that “No reasonable prosecutor would bring such a case” came after Comey recited a litany of transgressions Clinton allegedly committed in her handling of classified information on a non-governmental private server while she served as Obama’s secretary of state.
Comey gave the memos to his “friend” and legal representative, Columbia Law School professor Daniel Richman, with the purpose of prompting the hiring of a special counsel, he testified shortly after Trump fired him in 2017.
“The president’s job is to enforce federal law. If he had ordered its violation to save innocent life or preserve human freedom, he would have a moral defense. But ordering obstruction to save himself from the consequences of his own behavior is unlawful, defenseless and condemnable,” Napolitano concluded his column.
Trump’s tweet has been interpreted by some as an “attack” on Napolitano.
When the White House announced on November 7 the resignation of Attorney General Jeff Sessions, with whom Trump had expressed displeasure for many months after he recused himself from the “Russia” investigation, and appointed Sessions’s Chief of Staff, Matthew Whitaker, as Acting Attorney General, Napolitano said Trump’s actions were “Beginning to look more and more to me, Shep––nefarious.”
Whitaker did not shut down the Mueller investigation and has reportedly left government service after Attorney General William Barr’s nomination was approved by the Senate.
Napolitano saw Whitaker as a questionable choice as Acting AG due to his criticism of the Mueller probe when he was employed by CNN as a commentator. He also suggested that Sessions’s termination was “for an improper purpose.”
Certain “news” sources have widely publicized Napolitano’s criticism of Trump. On April 24, Napolitano said on his own show, “Judge Napolitano’s Chambers,” that the Mueller report contends in its “third conclusion” that “the president of the United States probably committed the crimes of obstruction of justice but probably should not be charged for them. That’s a head-scratcher. Is the president above the law? What do we do if the president commits a crime? Do we let him get away with it?
On Friday, Jon Levine of “The Wrap” reported:
During the final months of the investigation, Napolitano told Shepard Smith that it was possible Trump might have already been served an indictment but that it was under seal until he left the White House — the final release of the Mueller report squelched that hope.
The increasingly frequent and relentless criticism from Napolitano is a stark departure for the judge, who was known to be a Trump favorite at the start of his presidency. Throughout 2018, Trump frequently quoted the judge’s analysis verbatim on Twitter. In 2017, there were even rumors that Napolitano would be tapped for a Supreme Court seat.
In an opinion column published March 7, Napolitano wrote, responding to a number of negative developments that week marked by the failure of North Korea and the White House to sign a new nuclear agreement, that Trump “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.”
Also on April 24, Napolitano criticized as “deceptive” White House Senior Adviser and Trump son-in-law Jared Kushner’s remarks on “Russia interference” during the 2016 election cycle following the release of the Mueller report, which identified interference but no alternation of any votes. Kushner had said in an interview with TIME, “You look at what Russia did, buying Facebook ads and trying to sow dissent, it’s a terrible thing but the investigations and all of the speculation that has happened the last two years has had a much harsher impact than a couple of Facebook ads.”
Napolitano is the same former jurist who said that Obama’s constitutional eligibility was irrelevant because in 2016, he was serving his last year in the office.
Sharon Rondeau has operated The Post & Email since April 2010, focusing on the Obama birth certificate investigation and other government corruption news. She has reported prolifically on constitutional violations within Tennessee’s prison and judicial systems.