Andrew Napolitano
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Andrew Peter Napolitano (born June 6, 1950) is an American
syndicated columnist whose work appears in numerous publications including
The Washington Times and
Reason. He is an analyst for
Fox News,
commenting on legal news and trials.
Napolitano served as a New Jersey Superior Court judge from 1987 to 1995. He was a visiting professor at Brooklyn Law School. He has written nine books on legal and political subjects.
Politics
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Specific positions
Napolitano is anti-abortion and holds that abortion "should be prohibited."[12] He reasons while a woman has a natural and undeniable right to privacy in her personal choices, the rule of necessity causes the right to life of the fetus, which he believes to begin at conception, to take priority for the duration of gestation. Napolitano believes the Supreme Court's ruling on inter-racial marriage in Loving v. Virginia (1967) set a precedent that would also require state recognition of same-sex marriage.[13] He also opposes capital punishment: "I don't believe that the state has the moral authority to execute."[14] Napolitano is also a believer in the separation of Church and State.
With respect to both Presidents Bush and Obama and their handling of civil liberties in the War on Terror, Napolitano is a strong critic. In both his scholarly work, appearing in the New York University School of Law Journal of Law and Liberty, and in his book Suicide Pact, Napolitano criticized the actions of both Presidents and their parties with respect to torture, domestic spying, unilateral executive action, and encroachments on political power.
In February 2014, Napolitano expressed disdain for Abraham Lincoln on Fox News. He explained: "I am a contrarian on Abraham Lincoln." Slavery in the U.S., according to Napolitano, while one of the most deplorable institutions in human history, could have been done away with through peaceful means, which would have saved the bloodiest conflict in American history. At the same time, Napolitano also argued that states in which slavery was legal did not secede out of fear of abolitionism: "largely the impetus for secession was tariffs," which is false according to most Civil War Historians.[15] In his recent book Suicide Pact, Napolitano focused his criticism of Lincoln on the precedent set by his specific constitutional violations, such as his unilateral suspension of the right to habeas corpus and his institutionalization of military commission systems for civilian crimes.
After the release of the Mueller Report on Russian interference in the 2016 election, Napolitano said the report showed that Trump engaged in numerous instances of obstruction of justice, although the report deliberately refused to make a firm conclusion about obstruction of justice accusations.[16]
Judicial philosophy
Judge Napolitano subscribes to a
natural law
jurisprudence that is influenced by a respect for originalist ideas and
methods. He has expressed strong sympathies with the
Randy Barnett new originalist vein of
originalism, as it incorporates the Natural Law through an original
understanding of the
Ninth Amendment. He has published a favorable column on Barnett's idea
of a constitutional presumption of liberty.[17]
Napolitano's philosophy generally leans towards strong originalism, while not accepting the limitations of the older types of originalism espoused by Robert Bork and Justice Antonin Scalia with respect to the Constitution's open-ended provisions like the Ninth Amendment. Napolitano finds such limitations too restricting on a judge's ability to apply the Natural Law to decide cases where the liberty of the individual is at stake. Napolitano is a strong believer in economic liberties and argues that the decision Lochner v. New York was overruled in error in the West Coast Hotel case, as the Contracts Clause and the Fifth and Fourteenth Amendment Due Process clauses protect a sphere of personal economic liberty.[18]
In September 2015, Napolitano was the featured speaker at a conference held by the Republican government watch-dog group Judicial Watch.[19]
According to The New York Times, Napolitano "has a taste for conspiracy theories".[20] The Washington Post has described him as a "purveyor of conspiracy theories."[21]
Napolitano has promoted 9/11 conspiracy theories. In 2010, he said, "it's hard for me to believe that it came down by itself... I am gratified to see that people across the board are interested. I think twenty years from now, people will look at 9-11 the way we look at the assassination of JFK today. It couldn't possibly have been done the way the government told us."[22][23]
Allegations that British intelligence wiretapped Trump Tower
On March 16, 2017, citing three unnamed intelligence sources, Napolitano
said on the program
Fox & Friends that Britain's top intelligence agency,
Government Communications Headquarters (GCHQ), had engaged in covert
electronic surveillance of Trump during the 2016 presidential campaign on
orders from President Obama.[20]
He said that by using the British intelligence apparatus President Obama
would avoid leaving "fingerprints" that could identify the origin of this
surveillance action. In a column on the Fox website, Napolitano wrote that
GCHQ "most likely provided Obama with transcripts of Trump's calls. The NSA
has given GCHQ full 24/7 access to its computers, so GCHQ—a foreign
intelligence agency that, like the NSA, operates outside our constitutional
norms—has the digital versions of all electronic communications made in
America in 2016, including Trump's."[24]
One of Napolitano's sources was former
Central Intelligence Agency (CIA) officer
Larry C. Johnson, who later told
CNN that
Napolitano had misrepresented the statements he made on an online discussion
board. Johnson, citing two anonymous sources, claimed that the GCHQ was
passing information on the Trump campaign to US intelligence through a
"back-channel", but stressed that the GCHQ did not "wiretap" Trump or his
associates and that alleged information sharing by the GCHQ was not done at
the direction of the Obama administration.[25][26]
On March 16, White House Press Secretary Sean Spicer repeated Napolitano's claim at a White House press briefing. The following day, GCHQ responded with a rare public statement: "Recent allegations made by media commentator Judge Andrew Napolitano about GCHQ being asked to conduct 'wiretapping' against the then president-elect are nonsense. They are utterly ridiculous and should be ignored."[27] A British government source said the allegation was "totally untrue and quite frankly absurd".[28] Admiral Michael S. Rogers, director of the National Security Agency, said he has seen nothing to suggest that there was "any such activity" nor any request to do so.[29] Former GCHQ director David Omand told the Financial Times that "The suggestion that [Barack Obama] asked GCHQ to spy on Trump is just completely barking—that would be evident to anyone who knew the system."[30]
The claim started a diplomatic dispute with Britain. Tim Farron, the Liberal Democrat leader in Britain, said "Trump is compromising the vital UK-US security relationship to try to cover his own embarrassment. This harms our and US security."[28] The Telegraph said that two U.S. officials had personally apologized for the allegation.[28] The British government also said that the U.S. government promised not to repeat these claims.[30][31] The White House denied reports that it had apologized to the British government, saying Spicer was merely "pointing to public reports" without endorsing them.[28][32]
On April 12, 2017, The Guardian reported that GCHQ (and other European intelligence agencies) had intercepted communications between members of the Trump campaign team and Russian officials, and shared the intelligence with their US counterparts. The communications were obtained through "incidental collection" as part of routine surveillance of Russian intelligence assets, not from a targeted operation against Trump or his campaign.[33][34]
Fox News distanced itself from his claims and suspended Napolitano from contributing to the network's output, according to the Los Angeles Times and the Associated Press.[35] He returned on March 29, after nearly a two week absence, but continued to support the claims he had made earlier.[36]
Civil War views
Napolitano has made numerous claims about the
Civil War, which are rejected by historians. These claims include those
that the Civil War was President
Abraham Lincoln's war by choice, that slavery was dying anyway, that
Lincoln could have freed the slaves by paying the slaveholders, and that
Lincoln armed the slaves.[37][38] More
specifically, in a Daily Show segment, Napolitano said that Lincoln
started the war "because he wanted to preserve the union, because he needed
the tariffs from the southern states," a claim rejected by a panel of three
distinguished historians of the Civil War:
James Oakes,
Eric
Foner and
Manisha Sinha.[38]
Napolitano argued that Lincoln could have solved the slavery question by
paying slaveholders to release their slaves, a method known as
compensated emancipation, thereby avoiding war.[37]
However, Lincoln did offer to pay to free the slaves in
Delaware,
but the Delaware legislature rejected him.[37]
Napolitano also asserted that Lincoln attempted to arm slaves, but two
prominent historians of the Civil War said they had never heard of such an
effort and
PolitiFact rated the claim "pants-on-fire".[37][39]
Napolitano has asserted that slavery was dying a natural death at the time
of the Civil War, a claim that one of the historians on the Daily Show
panel rejected. The historian said, "Slavery was not only viable, it was
growing ... This idea that it was dying out or was going to die out is
ridiculous."[38]
Napolitano has also said that Lincoln enforced the Fugitive Slave Act "until the Civil War was over" by sending escaped slaves back to their owners. PolitiFact notes that "while there were cases when Lincoln enforced the law during the Civil War, he did so selectively when he thought it would help keep border states in the Union fold. When it came to slaves from Confederate states, the weight of the government actions fell heavily on the side of refusing to return escaped slaves." Furthermore, Napolitano's claim that Lincoln enforced the act "until the Civil War was over" was indisputably false, as the Fugitive Slave Act was repealed in June 1864, more than 10 months before the end of the war.[37]
Personal life
Napolitano identifies as a
Traditionalist Catholic who is opposed to the reforms of
Vatican II and is critical of
Pope Francis.[44][45]