They have done this notwithstanding the prohibition against taking life, liberty or property from any person — not just any American, but any person — in the Constitution each has sworn to uphold, and they have done so pursuant to secret rules that they themselves have established for these killings.

Last year, 11 senators and 39 members of the House of Representatives sent a harshly worded letter to President Joe Biden asking him to stop the secret, but not the public, killings. As of this writing, he has not publicly replied.

Here is the backstory.

The purpose of the Bill of Rights — the first 10 amendments to the Constitution — is to protect personal liberty by restraining the government.

The Fifth Amendment prohibits killing persons, restraining liberty and taking property without due process; that means a jury trial at which the government must prove criminal behavior or fault, depending upon its goal.

If the country is at war — lawfully and constitutionally declared by Congress — obviously the president can use the U.S. military to kill the military of the opposing country. And if an attack on the U.S. is imminent, the president can strike the first blow against the military of the entity whose attack is just about to occur.

There are no other constitutional circumstances under which a president may kill.

When President Harry Truman targeted Japanese civilians as the Japanese government was within days of surrendering in World War II, he murdered them. Notwithstanding his unprosecuted war crimes, and with the government’s version of Pearl Harbor still fresh in many Americans’ minds, Truman was regarded as heroic for using nuclear bombs to cause the profoundly immoral, militarily useless and plainly criminal mass killings of the hated Japanese.

Fast-forward to the 9/11 era, and Bush had precedent to begin his own presidential killings of people the government wanted Americans to hate. While Congress did authorize him to use force against those who caused or aided the 9/11 attacks, we all know that his thirst for Middle Eastern blood knew no regard for the Constitution, evidence, proportionality, civilian lives, morality or human decency. Thus, $3 trillion spent and 1 million dead in Afghanistan and Iraq.

Julian Assange sits in a British dungeon awaiting decisions on his extradition to the U.S. because he courageously, lawfully and constitutionally published documents and videos demonstrating conclusively that Bush’s use of drones targeted and murdered Afghan and Iraqi civilians, and his administration covered it up.

Obama took this to another level when he targeted and killed Anwar al-Awlaki, who was born in the U.S. Obama’s attorney general, Eric Holder, advised Obama that the killing was lawful, as al-Awlaki had encouraged folks in the Middle East to fight against American soldiers there. Holder likened killing al-Awlaki to police shooting at a bank robber whom they are chasing while he is shooting at them.

Holder forgot that al-Awlaki was unarmed, was not charged or indicted for any crime, was never accused of violence, and was not even the subject of an arrest warrant when a drone evaporated him while sitting at an outdoor cafe in Yemen.

The exercise of power by the federal government is largely based on precedent and politics. Whenever a president wants to kill, he need only find an example of a predecessor having killed with impunity — without due process, without a declaration of war and without an imminent attack. And then he needs only to calculate what he thinks he can politically get away with.

Joe Biden — whose drones in 2021 destroyed a dam in Syria, killing thousands, and who targeted civilians in Afghanistan, killing dozens, and whose shipments of guns to Ukraine and Israel are killing tens of thousands of folks he wants us to hate — is using unlawful powers that his modern predecessors used and got away with to target and kill unsympathetic persons. But the U.S. has not declared war on Russia or Gaza.

The nature of political power is to expand so that it fills a perceived need, unless there are mechanisms in place to restrain its expansion.

The founding generation believed that British monarchs had no limits on their powers and that was a good enough reason for the 13 colonies to secede violently. They also believed that they had crafted the Constitution and the Bill of Rights to impose sufficient restraints on the federal government. And they believed that the states could peacefully leave a federal government they had voluntarily joined when it exceeded its constitutional powers.

Sadly, the Founders were wrong.

Every president takes an oath to preserve, protect and defend the Constitution as it was written, not as he may wish it to be.

Yet, today, the president writes laws and rules that let him restrain personal liberty and kill with impunity, and Congress and the American people let him get away with it. Formally, we still have a Constitution. Functionally, it has utterly failed to restrain the government.

Ultimately, we have ourselves to blame for these killings and undeclared wars. Why do we repose the Constitution for safekeeping into the hands of those who subvert it? If a future president uses Bush’s lust and Obama’s logic and Biden’s hatreds to kill Americans in America, then no one’s life, liberty or property will be secure.

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

Snowden is the former CIA and National Security Agency operative — he was a CIA agent and was later employed by a contractor for the NSA — who blew the whistle on NSA and FBI mass undifferentiated warrantless spying on all persons in America.

The spying consisted of capturing all fiber-optic data that was transmitted into, out of and within the United States. As no warrants were sought or obtained and no targets were named — hence, the spying was mass and undifferentiated — it captured the communications of everyone. The government did not bother to seek out evidence and target those as to whom it found probable cause, as the Fourth Amendment to the Constitution requires.

The Fourth Amendment was written to keep the government out of our private affairs and off our backs and to force the government to stay in the lane of probable cause of crime. Thus, with the requirement of probable cause — evidence that a crime was committed and it is more likely than not that execution of the warrant will produce more evidence of that crime — the Fourth Amendment explicitly outlaws general warrants that permit the bearer to search wherever he wishes and seize whatever he finds. The amendment requires every warrant to describe specifically the place to be searched or the person or thing to be seized.

The Foreign Intelligence Surveillance Court, meeting in secret with only government lawyers appearing, and with nearly all its rulings kept secret even from the judges on the court, uses its own concocted standard of probable cause. That standard is probable cause of communicating with a foreign person as the requirement for a surveillance warrant. That standard is profoundly contrary to the Constitution.

So, if you call your cousin in Toronto or a bookseller in London, under this dreadful law, the FISA Court can authorize the NSA or the FBI to capture ALL your communications. The emphasis is on “all,” as the surveillance will extend to all to whom you communicate, not just your cousin or your bookseller, and all to whom they communicate, out to the sixth degree of communications.

President George W. Bush — whose administration either looked the other way or was asleep at the switch on 9/11 — pushed through congressional legislation in 2006 and 2007 that immunized telecom and internet providers from liability in return for their compelled cooperation with the feds. So, when the feds come calling, the providers have no choice but to open the front door. The feds are now permanently located at all service providers’ mainframe computer sites.

But Snowden revealed that the NSA and FBI were obtaining warrants from the FISA Court as a subterfuge. The feds do get FISA warrants, but only as a cover for their mass undifferentiated warrantless spying. This means that NSA and FBI use of the FISA Court is largely a sham, since the NSA and the FBI can more easily break the law and spy without warrants than they can follow the law and seek them.

The degree of NSA and FBI unconstitutional and criminal spying is breathtaking. Because of Snowden, we now know that all the data the feds mine, if printed, would fill 27 times the holding capacity of the Library of Congress every year. This is unconstitutional because it defies the Fourth Amendment. It is criminal because it constitutes computer hacking. It is useless for national security as it is information overload, impossible to review in real time.

When Snowden began his work at the CIA and the NSA, he took two oaths. The first was to keep secret whatever his bosses told him was secret. This presumably includes not only the data that the NSA mined but also the unconstitutional and criminal means that it used to acquire all that data.

The second oath that Snowden took was to preserve, protect and defend the Constitution. This means not only its plain text but also the values that underlie the text.

What to do when one’s sworn legal obligations clash? How can one comply with two oaths when they fundamentally conflict with each other? Which is the greater and higher oath — the one to politicians and spies or the one to constitutional ideals?

When Snowden revealed that even the FISA Court’s unconstitutional watering down of the Fourth Amendment was not good enough for the federal spies, that they were capturing every keystroke on every mobile and desktop in the country without warrants, and collaborating with their British cousins, the GCHQ, to do the same on Americans in foreign countries and even on Americans in the U.S., he exposed a raw truth of government lawbreaking on a massive scale — more massive than at any known time in American history.

In an ironic twist, Trump now stands indicted for the same crimes as Snowden.

History teaches that greatness often requires taking chances. When stuck at the Moscow airport after the U.S. State Department invalidated his passport and well before he became a Russian citizen, Snowden remarked that he’d rather be stateless than voiceless. Today, he is an American banished from his homeland. Yet, he remains a symbol of greatness of historic proportion and a reminder of the privations that heroes for the truth often must endure.

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

These questions should be critical to a public debate over the U.S. military involvement in Ukraine and the Middle East. Sadly, there has been no great debate. The media are mouthing what the CIA is telling them, and only a few websites and podcasts — my own, “Judging Freedom” on YouTube, among them — are challenging the government’s reckless, immoral, illegal and unconstitutional wars.

Here is the backstory.

All power in the federal government comes from the Constitution and from no other source. Congress, however, has managed to extend its reach beyond the confines of the Constitution domestically by spending money in areas that it cannot regulate and in foreign policy by looking the other way when presidents initiate military violence.

Under the Constitution, only Congress can declare war on a nation or group. The last time it did so was to initiate American involvement in World War II. But Congress has given away limited authority to presidents and permitted them to fight undeclared wars, such as President George W. Bush’s disastrous invasions of Afghanistan and Iraq, and the War Powers Resolution of 1973.

Congress cannot legally declare war on Russia or Gaza, since there is no militarily grounded reason for doing so. Neither Russia nor Gaza poses any threat to American national security.

Congress not only has not declared war on Russia; it has not authorized the use of American military force against it. Yet, it has given President Joe Biden a blank check for $113 billion and authorized him to give cash and military equipment to Ukraine, however he sees fit.

He has promised to continue giving Ukraine whatever it needs for “as long as it takes.” As long as it takes to do what? He cannot answer that because he has no clear military objective. Eliminating Russian troops from eastern Ukraine and Crimea or Russian President Vladimir Putin from office are not realistically attainable military goals. Congress has only authorized cash and weapons to be sent to Ukraine, but Biden has sent troops as well.

As of this writing, Congress has not authorized any military assistance to Israel, yet Biden has sent 2,000 Marines to await his orders on an aircraft carrier in the eastern Mediterranean, and he has put special forces on the ground in Gaza.

The U.S. involvement in Vietnam began the same way: no declaration of war, no authorization for the use of military force, yet a gradual presidentially ordered buildup of American troops as advisers and instructors, and then a congressionally supported war that saw half a million American troops deployed, 10% of whom came home in body bags.

We don’t know how many American troops are in Ukraine, as they are out of uniform and their whereabouts a secret. We do know that they are involved in hostilities, since much of the hardware that Biden has sent requires American know-how to operate and maintain.

Now back to the Constitution.

The War Powers Resolution, which requires presidential notification to Congress of the use of American military force, is unconstitutional because it consists of Congress giving away one of its core functions — declaring war. The Supreme Court has characterized delegating away core functions as violative of the separation of powers. Stated differently, Congress cannot constitutionally authorize or permit the president to use the military in a non-defensive manner.

Nevertheless, Biden has not informed Congress of his intentions to use American troops violently. Yet, he has used the Navy and the CIA to attack Germany by destroying the Nord Stream Pipeline; he has sent soldiers out of uniform to Ukraine; and he has dispatched Army, Navy and Marine personnel to wartime Israel.

Don’t be surprised if Biden gives War Powers Act notice secretly to the Gang of Eight. The Gang of Eight is the Congress within the Congress. It consists of the chairs and ranking members of the House and Senate Intelligence Committees and the Republican and Democratic leaders of the House and Senate with which the president legally shares secrets.

Just as Congress cannot delegate away its war-making powers to the president, it cannot delegate them away to the Gang of Eight. The concept of the Gang of Eight is antithetical to democratic values. Informing them of whatever violence the president is up to is done under an oath of secrecy. What kind of democracy operates and kills in secret and disenfranchises 95% of its elected federal representatives?

Beyond an imminent attack, the basis for war must be real, the adversary’s anti-U.S. military behavior must be grave, the objective of war must be clear and attainable, and the means must be proportionate to the threat.

Has the Russian military threatened the U.S.? No. Have the Palestinian people? No. What grave acts of aggression has either committed or threatened against the U.S.? None.

Do we actually repose the Constitution into the hands of those who ignore it? Does the Congress uphold the Constitution? Does the president? The answers are obvious. It is also obvious that Joe Biden loves war and wants to run for reelection as a wartime president. And he seems to be getting his way.

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

That process resulted in the establishment and international recognition of the State of Israel and the confinement of the Palestinian people to the Gaza strip in the west and to the West Bank in the east. Rather than amalgamate these folks into a democratic society — where individual rights are equal and the government respects them — Israeli governments have established an apartheid.

Gaza became an open-air concentration camp, doomed to poverty and cultural repression. The West Bank, meanwhile, keeps shrinking, as the Israeli government keeps encouraging and funding illegal Israeli settlements on land that the Palestinians have believed, because Israeli governments told them, was theirs.

The Israeli government repression of Palestinian natural urges for freedom, cultural identity and prosperity has resulted in extremists on both sides, and these people have fomented unspeakable violence. How did Hamas come about? Hamas was the brainchild of Israeli Prime Minister Benjamin Netanyahu. Netanyahu fomented and caused the Israeli government to fund Hamas so as to resist the political influence of Netanyahu’s long-time foe, the late Yasser Arafat, the head of the Palestine Liberation Organization.

Netanyahu and his government separated the Palestinian people not only geographically but also politically. His creation of Hamas was far more successful than he envisioned. As the Israeli repression of Gaza grew, as it became more of an open-air concentration camp, Hamas sought and received the political support of Gazans. It fomented the resistance Netanyahu hoped for, and that resistance morphed into violence, and that violence erupted savagely last week.

What role has the United States played in all this? The U.S. has been Israeli’s best and most faithful friend since Israel’s creation. Israel is about the size and population of New Jersey. New Jerseyans pay hundreds of billions in federal taxes each year and receive about $800 million annually in return. Israel, which of course pays no taxes to the U.S. government, receives $4 billion annually in what the feds euphemistically call foreign aid.

Foreign aid is nowhere authorized in the Constitution. But we all know that the federal government does what the folks who control it believe will keep them in office, whether countenanced by the Constitution or not. The feds believe that they can enact any law, tax any event, regulate any behavior, fight any war, insinuate government into any relationship and spend money that they don’t have — the Constitution be damned.

In furtherance of that extra-constitutional behavior, the feds have supported Israeli governments no matter what they did. Israeli governments spy on the U.S. government, the White House and American citizens — no problem. Israeli government jets bombed the USS Liberty, killing 34 and wounding 171 American sailors — no problem. The Israeli government wants to suppress and partially annihilate an ethnic group using American weapons — no problem. The Israeli government wants to kill more innocents than Hamas crazies did — no problem. The Israeli government wants American cash to do all this — no problem.

This unstinting U.S. support, just like the U.S. military support for the government of Ukraine, has brought about the deaths of innocents, and it has brought Israel and Ukraine to the most dangerous and unstable precipice that either country has stood upon in the past 50 years. Since the recent Hamas attacks and Ukraine military defeats, American politicians have called for more borrowing from the Chinese so as to give the Netanyahu and Ukraine governments more cash. This will add to the federal government’s $33 trillion debt and push American prices up and employment down.

Instead of negotiating or even spending for peace, the U.S. has encouraged and paid for wars. Instead of using its enormous economic might to facilitate prosperity, the U.S. has, quoting U.S. Secretary of Defense Lloyd Austin, “projected power on both fronts,” meaning in the Middle East and in Ukraine. Power? It has projected and caused death and destruction, just as the U.S. did with its “power” in Vietnam, Afghanistan and Iraq.

Is that the goal of U.S. foreign policy — to project power? If it is, it is not working.

Where does all this leave the United States and the American people?

We have a president who cannot put two sentences together, much less credibly negotiate with foreign heads of state for peace. We have a Congress beholden to the intelligence community and the military-industrial complex. We have one big government party in Washington. It is pro-welfare, pro-warfare, pro-deep state, pro-security state and pro-administrative state; but it is not pro-Constitution or pro-limited government or pro-personal liberty or pro-peace.

U.S. foreign policy — no matter who is in the White House or which major political party controls Congress — stokes festering rage wherever it goes. What will that bring us? As of this writing, it is bringing 2,000 American troops to Tel Aviv. History shows indisputably that when all else fails, governments bring us to war.

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

He boasted that the Constitution shouldn’t restrain him, federal laws wouldn’t apply, and federal judges couldn’t interfere.

He was, of course, wrong on all counts. The Supreme Court ruled on six Gitmo cases; and the government lost five. In the case in which the government prevailed, the court ruled that the detainee filed his complaint in the wrong city.

The five cases that the government lost established that federal courts do have jurisdiction over the place where the government goes for more than just a fleeting moment. The court knew that British kings would often have prisoners whom they wished to torture or detain without trial brought to foreign colonies for those purposes. The Framers of the Constitution abhorred that practice and wrote the Constitution so it wouldn’t happen here.

As a result of the five Supreme Court rulings, the basic rights that all persons have who are confined anywhere by the government must be recognized and honored at Gitmo. This is so because the detainees are persons and their rights are natural to humanity. It is also because those rights are spelled out in the Constitution, without distinction between good persons or bad persons, Americans or foreigners, persons in the U.S. or outside of it.

Stated differently, all human beings confined by the government have the right to due process, no matter where they are confined. This means they must be given notice of the charges against them, they have a right to remain silent, to the services of a lawyer, to confront the evidence against them, to call witnesses in their own behalf and to challenge the government’s evidence.

They have the right to a speedy trial with a professional judge and a neutral jury. And they have the right to appeal.

I offer this brief background in order to address the legal and constitutional debacle that Gitmo has become. In 21 years, at $100 million a year, only two trials have led to convictions by juries and seven have led to guilty pleas. Of those nine convictions (a guilty plea is a conviction), four have been overturned on appeal and two appeals are pending. Thirty detainees remain at Gitmo, 16 of whom have been cleared for release.

The principal remaining defendant is the alleged 9/11 mastermind, Khalid Shaikh Mohammed. Initially, the government claimed that Osama bin Laden was the 9/11 mastermind. But after it decided to kill bin Laden without any charges or due process, the government changed its mind and decided that KSM — as the government calls him — was the mastermind.

KSM was tortured at a CIA black site in Poland for three years. Thereafter, he was brought to Gitmo and interrogated without torture by FBI agents. They failed to give him his Miranda warnings about his right to remain silent, the consequences of waiving that right and the right to a loyal attorney at no cost to him. Nevertheless, KSM asked for a lawyer and the agents simply ignored him.

During the interrogation, KSM made some admissions about the 9/11 plot, but he did so fearful that he would soon be tortured again. This meant nothing to the FBI agents or the prosecutors in the case. But it is quite meaningful to federal judges. All evidence obtained under torture, or influenced by realistic fears of torture, or tainted in any way by torture, is inadmissible in any American court. Moreover, no statement from a defendant who has not been Mirandized may be used against him in court without an express written waiver.

The lead FBI agent who failed to Mirandize KSM and who ignored his request for an attorney is a 33-year veteran of the FBI who testified that he knew the Miranda procedures well and he knew that the failure to abide them could render KSM’s statements totally inadmissible. But he thought the warnings did not apply at Gitmo, even though the Supreme Court ruled in 2004 that the Miranda warnings do apply and KSM’s FBI interrogation was in 2007.

This is not brain surgery. It is criminal procedure 101.

Meanwhile, Abu Zubaydah, a Gitmo detainee arrested in Pakistan in 2002, is awaiting his release. After a year of CIA torture in Thailand, he was moved to Gitmo in 2003 and has been there since. He has not been charged with any crime or offense, and the government admits it has no evidence of wrongdoing on his part — not just insufficient evidence, but no evidence. However, he is known as the “forever prisoner” since the government claims he is too dangerous to release.

Both KSM and Zubaydah were awaiting rulings from the fourth judge in their cases when that judge announced his retirement. Now a fifth judge will be assigned to both cases. His first job will be to read the files amassed by his four judicial predecessors — all 450,000 pages.

You can’t make this up.

The French prime minister Georges Clemenceau once remarked that “military justice is to justice as military music is to music.” But this is tragedy, not comedy. The defendants are human beings who have the same rights as anyone in America. If rights are lost because of government ineptitude or politics or willful blindness, they are not rights, but government giveaways. And then our rules-based system of rights and laws becomes a humanitarian and a constitutional fiasco.

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

Under the Constitution, that number should be ZERO.

This revelation is supposed to give members of Congress comfort that the folks we have hired to protect the Constitution are in fact doing so. In reality, the feds continue to assault and violate a core freedom protected by the Constitution — the right to be left alone.

The reason for the FBI revelation is the pending expiration of Section 702 of the Foreign Intelligence Surveillance Act and the bipartisan animosity toward its extension.

Section 702 is unconstitutional on its face as it directly contradicts the core language of the Fourth Amendment. It permits the feds to conduct warrantless surveillance on foreign persons who are either physically or digitally present in the United States and all with whom they communicate — American or foreign — who are located here.

Thus, for example, if you call or text or email an art dealer in Florence, Italy, from your home in New Jersey, or your cousin in Geneva, Switzerland, calls or texts or emails you at your home in California, the FBI can monitor all those communications without a search warrant. And then the feds can monitor the future calls you make and texts and emails you send and receive.

The reason for the search warrant requirement is to prevent a repeat of what British agents did to the American colonists before the Revolutionary War. Then, secret British courts in London issued general warrants to British agents in America, which authorized the bearer to search wherever he wished and seize whatever he found.

When British agents used their general warrants to search colonial homes ostensibly looking for tax stamps in compliance with the Stamp Act, they were really attempting to find who among the colonists entertained revolutionary ideas that might lead to a revolt against the king.

The existence and the enforcement of the Stamp Act proved so unpopular that Parliament rescinded it after just one year of British agents roughing up colonists in their homes. But the former bond between colonials and their king had been irreparably breached and a sea change in colonial thinking pervaded the land. The core of that sea change was not taxation without representation; it was “freedom.”

To the colonial mindset, freedom had one universal meaning. It meant freedom from the government — from king and Parliament.

The sea change in colonial thinking resulted in an ideological welcome mat for the Declaration of Independence. When Thomas Jefferson was holed up in a Philadelphia rooming house for five days in June 1776 writing and revising the Declaration, he thought he was crafting the ideological fountainhead of a minority of landowners who despised the king’s authority. Yet, within a year, farmers and artisans and laborers joined the popular and bloody revolt that ended in 1783 with freedom from England.

What about freedom from the new government here?

When the Constitution was ratified six years later, it had no amendments and made no mention of personal liberty. Five of the ratifying states had insisted upon the promise of the addition of a Bill of Rights as a pre-condition to ratification.

And so, the first task of the new Congress was to comply with that promise and craft a Bill of Rights, lest these five states secede from the new union. The colonies-become-states presumed a right to secede. They believed that what they had joined voluntarily, they could voluntarily leave. What became the Fourth Amendment protected the quintessentially American right to be left alone.

It states that “the right of the people to be secure in their persons, houses, papers, and effects” shall be secure and may be violated by the government only pursuant to a search warrant issued by a neutral judge and based on probable cause of crime, and the warrant must specifically describe the place to be searched or the persons or things to be seized.

There is no exception in the amendment for foreign people, bad people, dangerous people, violent people, people the government hates or fears. By the plain meaning of its English words, the amendment protects ALL people. There is no limitation in the amendment to government personnel engaged in law enforcement. The amendment restrains ALL government. The very purpose of the amendment is to present an obstacle to the government because the amendment protects the natural human right to personal privacy and autonomy from the government.

James Madison — who drafted the Bill of Rights — and his colleagues made a value judgment consistent with their Judeo-Christian-informed morality; namely, that natural rights trump governmental needs.

The violation of privacy is a form of government aggression. Madison knew the tendencies of government toward aggression. The Fourth Amendment was to be the bulwark against it. The people could protect themselves against private aggressors, but they’d need a clause in the supreme law of the land and independent judges to restrain government aggressors.

They have crafted mechanisms of all sorts — like Section 702 — to evade and avoid it. They will claim that it impairs their duties. Yes, it does — intentionally so, and in the name of personal liberty. Today, liberty is impaired for foreign persons, an immutable characteristic. Tomorrow it could be impaired for any other immutable trait. Of what value is a Constitution with congressionally crafted, politically based exceptions? None.

Section 702 expires on Dec. 31, 2023. Last week, President Joe Biden asked Congress to renew it. It should die a natural death. Paraphrasing Justice George Sutherland, if the provisions of the Constitution are not upheld when they pinch as well as when they comfort, they may as well be abandoned.

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

Here is the backstory.

Four grand juries, each in a different jurisdiction, have indicted Trump on various felony charges. The allegations in the charges range generally from fraudulent bookkeeping in New York to espionage in Florida to conspiracy to prevent the transfer of presidential power in Washington, D.C., to conspiracy to overturn an election in Georgia.

In all, Trump stands accused of having committed 91 distinct criminal acts. He denies all the allegations and has pleaded not guilty in each case.

After the fourth indictment was filed last month, Trump dispatched his lead lawyer in the D.C. case, John Lauro, to the Sunday talk shows to articulate Trump’s defense. “Everything that President Trump did was with the advice of lawyers and counsel,” Lauro stated numerous times. This is the so-called advice of counsel defense; basically, my lawyers told me it was OK.

Yet, last week on “Meet the Press,” Trump revealed that his legal team in the White House told him that he lost the election and there was insufficient evidence to challenge or overturn it. Then he said that he opted to ignore their advice “because I didn’t respect them.” “It was my decision,” to do what I did, not theirs. Ouch. If he was not taking the advice of his lawyers, then he cannot invoke the advice of counsel defense. Either he relied on the advice of his legal team or he didn’t. Last weekend he contradicted his current legal team when he said he didn’t.

Even if he did rely on the advice of counsel, that’s not an absolute defense, and it is a problematic one.

The Supreme Court has recognized the advice of counsel defense since 1908, in a case called Williamson v. United States. There, a member of Congress had been convicted of encouraging a client to commit perjury on a document filed with the federal government. The prosecution was obliged — as it nearly always is in federal cases — to prove willful and unlawful intent.

Congressman Williamson told the jury that his lawyer told him that he could tell his client how to sign the document. The Congressman was convicted and the Supreme Court reversed, finding as a matter of law that the government failed to prove willful and unlawful intent.

Since that case, the courts have required precise evidence — usually in the form of live testimony from the lawyer who gave the advice — as to the nature of the advice the client sought and the precise advice the lawyer gave.

The crimes for which Trump has been indicted require the government to prove the element of intent — that Trump knew that what he was doing was wrong, but he intentionally did it nevertheless. The advice of counsel defense does not excuse or justify the crime; it challenges the government’s proofs on intent.

Thus, in order to invoke this defense, Trump will need to call to the witness stand the lawyers whom he told Lauro gave him legal advice and guided what he did in the days and hours leading up to Jan. 6. He’d then need to have those lawyers explain to the jury that he made full disclosure to them of what he planned to do and received and accepted their advice telling him that the specific course of conduct in which he planned to engage was lawful.

But he just told a national television audience that his lawyers were “RINOs” (Republicans in name only) and he didn’t respect them. He didn’t say this about Lauro, rather about unnamed lawyers advising him in the White House during the final month of his presidency.

Having denounced the lawyers whom he consulted in the White House during December 2020 and January 2021, he’d be hard-pressed to obtain their testimony in his favor. And if he somehow managed to do so, the government will use the “Meet the Press” interview to impeach the credibility of the advice of counsel claim.

I am not writing this column about Trump getting himself into deeper legal trouble for any political purpose. I have known Trump personally for nearly 40 years, and he conferred with me many times during his presidency. My interest in the outcome of the 2024 presidential election is the hope that whomever is elected president will be faithful to the Constitution and respectful of the natural rights of all persons. Sadly, no president in my lifetime has met those standards.

The purpose of this column is not to support or attack his candidacy; rather, to shed light on a little-used defense in criminal cases.

But it simply will not work when the criminal defendant has denounced the lawyers whose advice he once sought as beneath his respect and has publicly rejected them.

Why does Donald Trump say things that are so harmful to his legal interests? Why does he undercut his own defense in criminal cases that expose him to the potential loss of liberty for the remainder of his life? Does he know that public opinion of him as a candidate or even as president cannot save him in a courtroom? These are questions juries may soon be answering.

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

She did this notwithstanding the expressly guaranteed right in the U.S. Constitution to keep and bear arms, notwithstanding the Supreme Court’s most recent interpretations of the constitutional guarantee, notwithstanding the natural right to self-defense and notwithstanding comparable guarantees in the New Mexico Constitution and laws.

Stated differently, the Governor took the law into her own hands and defied and perverted it. Can this possibly be legal? In a word: No.

Here is the backstory.

In 1939, the Supreme Court heard an appeal in U.S. v. Miller, a case in which the defendant had been convicted of carrying a rifle across state lines that was too short, according to federal statutes. The statutes were based on the power of Congress to regulate commerce between the states. Even though Miller was not engaged in commercial activity, and even though no lawyer appeared or presented an argument for him in the Supreme Court, the court upheld his conviction.

From and after that case, the feds and the states began aggressively regulating the possession, sale and movement of weapons. The big-government types in both political parties regularly either enacted laws or gave the power to bureaucrats to promulgate and enforce regulations that severely impaired the right to keep and bear arms. Their view was that their governments would keep them safe, so why does anyone need arms?

This attitude prevailed until 2008, when a retired District of Columbia police officer applied for a permit to own and possess a handgun in his own home, and his application was denied.

The Supreme Court reversed that denial, and an opinion called District of Columbia v. Heller, authored by the late Justice Antonin Scalia, held that the right to keep and bear arms is personal and pre-political; meaning, it is possessed by individual persons and it does not derive from the government. It is the modern mechanical extension of the natural right to self-defense.

Justice Scalia reasoned that the Second Amendment does not grant the right to keep and bear arms; rather, it restrains the government from interfering with it.

As if to defy the Supreme Court, liberal states, begrudgingly recognizing the right to own a gun, made it nearly impossible to carry or use a gun, since Heller only addressed ownership and use in one’s home.

Then, last year, the Supreme Court addressed the issue of carrying guns in public places. In an opinion written by Justice Clarence Thomas, the court overruled Miller and reaffirmed Heller, and ruled for the first time that the Second Amendment means today what it meant to those who wrote and ratified it in 1791.

Thus, the original public understanding of the right to keep and bear arms — which is the right to use guns to protect life, liberty and property from bad guys and tyrants — is the governing principle of all gun laws today.

Add to this the basic constitutional principle of the separation of powers, and one can easily see just how wrong and dangerous the behavior of the Governor of New Mexico is. Under the separation of powers, only the legislature can write laws, and only the executive can enforce them, and only the judiciary can say what they mean.

Since governors are in the executive branch, they are not constitutionally competent to write laws; they can only enforce those that the legislature has already written. Thus, when the Supreme Court has defined the right to keep and bear arms as a personal, individual, natural right, no gubernatorial decree can interfere with it.

What about emergencies? The Supreme Court has also ruled consistently that there are no emergency exceptions to the fundamental rights guaranteed from infringement in the Bill of Rights.

Moreover, the governor of New Mexico has violated federal law by issuing her decree. Federal civil rights laws expressly prohibit all government officials from using government power to infringe upon individual fundamental liberties.

But there is more here about which to be weary.

Surely, the governor of New Mexico knows this. She has taken an oath to preserve, protect and defend the U.S. Constitution and the Constitution of New Mexico.

Her oaths are to the values underlying government, not just to the pieces of paper on which those values are articulated. The values that she violated — perhaps as a dry run for future gubernatorial aberrations — recognize that our rights are natural to our humanity. As such they cannot be interfered with by a decree or even by a popular majority.

Paraphrasing John Stuart Mill, because modern-day self-defense is a natural right, if all America but one were of the view that self-defense by guns is unlawful, the government would no more be justified in seizing the guns of the one than would he, if he had the power, be justified in seizing the guns of the government.

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

Eleven years ago, when this column asked if the CIA was in your kitchen, folks who read only the title of the column mocked it. Yet, then-CIA Director Gen. David Petraeus gave a talk to CIA analysts that he fully expected to be kept secret. In the talk he revealed that CIA vendors had discovered a means to log on to the computer chips in kitchen microwave ovens and dishwashers. From there, they could listen in real time to the conversations in a kitchen if those chatting were nearby the appliances.

Unfortunately for Petraeus, but fortunately for the Constitution, one of his analysts was so critical of the CIA’s disdain for constitutional norms that the analyst recorded a major portion of Petraeus’s talk and leaked it to the media. Is the CIA in your kitchen? Yes, not physically, but virtually.

The CIA, notwithstanding a clause in its charter that prohibits it from engaging in surveillance in the United States or from engaging in any law enforcement activities, has a long history of domestic spying without search warrants.

That last phrase “without search warrants” when used in conjunction with CIA spying is redundant. The CIA does not deal with search warrants. It behaves as if the Fourth Amendment — and the First (protecting the freedom of speech and of the press) and Fifth (protecting life, liberty and property), for that matter — do not exist or somehow do not pertain to its agents.

Not long ago, I was challenged to a public debate at the Conservative Political Action Conference by the general who was then the head of the National Security Agency, the CIA’s domestic surveillance cousin. The topic of the debate was whether domestic warrantless spying is constitutional. I accepted the challenge and aggressively pressed the general on the notorious lack of fidelity that the 17 federal spying agencies have for the Constitution in general, and specifically the Fourth Amendment.

The general gave me two answers, both of which would have flunked a bar examination. First, he argued that the Fourth Amendment only protects against unreasonable surveillance, and his 60,000 domestic spies were behaving reasonably. After the laughter died down, I pointed out that the Supreme Court has held that all searches and seizures — all surveillance — conducted without search warrants are as a matter of law unreasonable, and thus violative of the amendment.

Then he retreated to a post-9/11 argument crafted by the Department of Justice in the George W. Bush administration. That argument offers that the Fourth Amendment only restrains law enforcement; it does not restrain the intelligence community. I pointed out that this view is defied by both language and history.

The plain language of the amendment has no exceptions to it. Rather, it protects “the right of the people to be secure in their persons, houses, papers, and effects.”

I then reminded him — we were friends, mind you; but I could not let him get away with publicly trashing the document he and I had both sworn to preserve, protect and defend — that the Fourth Amendment was written in the aftermath of British intelligence agents breaking down the doors of colonists’ homes ostensibly looking for compliance with the Stamp Act of 1765 but really looking for subversive materials by folks whom today we call the Founding Fathers.

I present this brief background so as to offer a flavor for the mindset of the feds who spy on us and to address the latest craze among senior level intelligence folks in the Biden administration.

Last week, the Director of National Intelligence — she is the nominal head of all 17 federal surveillance agencies — revealed to Congress that she had spent $22 million in order to develop cotton fibers that she called smart clothing. The fibers will enable the CIA and other federal spies to record audio, video and geolocation data from your shirt, pants, socks and even your underwear. She billed this as the largest single investment ever made to develop Smart ePants.

Smarty pants — how appropriate is that name for federal intrusion? Smarty pants is the jerk who can’t stop talking and won’t change the subject.

You can’t make this stuff up. The federal government’s appetite for surveillance is quite literally insatiable. And its respect for the individual natural right to be left alone is nonexistent. It traffics in evading and avoiding the Constitution, using absurd and puerile arguments that have never been accepted by the courts, even though every single federal employee has sworn an oath of fidelity to the Constitution as it is generally understood and interpreted.

When the DNI told Congress about this — while Congress was on its summer break — not a peep was heard from anyone in Congress or from the sleepy White House for whom the DNI works.

Does the government work for us, or do we work for the government? What employee gets to spy on his bosses by putting trick textiles into the bosses’ underwear and then gets away with it? When will Congress protect our liberties? When will enough of this warrantless spying be enough?

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

— Benjamin Franklin (1706-1790)

Benjamin Franklin’s famous one-liner about the relationship between liberty and safety has intrigued me since I first read it in high school. Why would anyone sacrifice personal liberty? And how does that sacrifice equate to temporary safety?

When Franklin uttered these lines, folks in the colonies were contemplating a war of secession from England. At the time of that contemplation, according to the late Harvard Professor Bernard Bailyn, about one-third of the adult white males preferred secession, about one-third preferred staying subjugated to the king and Parliament, and about one-third were undecided.

From our advantage of hindsight, it is almost inconceivable that any rational person could have been undecided. But that was then, and this is now.

Franklin was on the side of secession, and his one-liner was meant to embarrass folks into supporting his view. The king’s government officials argued that in return for their subjugation — they used the euphemism “loyalty” — the colonists would be kept safe. Safe from the agitators among them — like Franklin.

Franklin and his colleagues — Thomas Jefferson foremost among them — argued that personal liberty is natural to humanity and sacrificing it does not produce safety. Who will keep our liberties safe, Jefferson once asked.

The history of the world is the chronicle of liberty against safety. Safety is the excuse given by tyrants when they take freedom by compelling or prohibiting or intruding.

From George III and his Stamp Act of 1765, which resulted in British agents searching colonial homes without individualized suspicion, to George W. Bush and his Patriot Act of 2001, which enabled one federal agent to authorize another to search without any warrants in defiance of the Constitution, tyrants have consistently claimed “safety” as the excuse and purported benefit of trampling liberty.

In both 1765 and 2001, the liberty sacrificed was the right to privacy — the right to be left alone.

We all lived through the government theft of liberty three years ago, during the Covid scare. Government, without lawful authority or personal consent, stole liberty, promised safety and delivered neither. It basically conducted a dry run for its next takeover of our once-free society by scaring the daylights out of folks.

It frightened so many people that they willingly gave up essential liberty. It was government at its worst. And because enough people caved, the government got away with it.

Jefferson bolstered Franklin’s simple one-liner by his glorious language in the Declaration of Independence asserting we are endowed by our “Creator with certain unalienable Rights, and among these are Life, Liberty, and the pursuit of Happiness.” If our rights are inalienable, then they derive from our humanity, which is a gift of the Creator. And if they derive from our humanity, how can government take them away? Morally, it cannot do so unless we give up those rights.

It was against this caving into government’s seduction, induced by fear, that Franklin and Jefferson warned. Fortunately, their warnings were heeded. Even though the Revolutionary War was supported by a minority, it did rid America of a tyrant — until we elected our own.

Giving up rights is an individual personal choice. You can give up your own rights to a government promising safety, but you cannot give up mine.

Yet, government thrives on seizing liberty and property. It seizes liberty by enacting so many criminal laws — 5,500 by the last count in the federal system alone — that no one, least of all the governed, knows and can understand them all. It seizes property by taxation. To the big government types in both major political parties, taxation is just, and thus, more taxation is more just. To those who understand with Franklin and Jefferson that our rights are natural and our property is ours, this “just” and “more just” argument is rubbish.

I offer this brief historical and philosophical background so as to address the recent phenomena of government coercing private entities into surrendering their rights. Last week, Forbes Media reported that the Biden administration has been coercing TikTok, the fabulously successful social media app owned by the Chinese corporation ByteDance, into surrendering access to its records and operations systems under the guise of — you guessed it — safety.

The government claims that TikTok enables the Chinese government to spy on the public social media of its American users and the federal government aims to keep us safe from that.

Why would TikTok cave to this? Its operating systems are private, proprietary and none of the government’s business. Answer: fear that the feds will shut TikTok down in the name of safety. What will the feds do with the algorithms and software that TikTok will surrender? They will use them to spy on us, the very same ugly deeds that they are accusing TikTok of doing.

But when TikTok spies, it is capturing what you have given it. If it captures private data you did not release, you can sue it for computer hacking. When the feds spy, they need a warrant. But don’t expect them to get one. They already spy on all of us all the time, thanks to Bush’s amendments to Foreign Intelligence Surveillance Act and his Patriot Act. How well have they kept us safe?

We have reposed the Constitution into the hands of those who have subverted it. Their subversions have protected only their own power. They have upheld neither our liberty nor our safety.

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.