Judging Freedom - Alex Murdaugh Conviction revisit _ Who Gets to Declare War_

Episode Date: March 6, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Monday, March 6, 2023. It's about 10 after 5 in the afternoon here on the East Coast of the United States. Was Alex Murdoch properly legally convicted? It's an interesting question that a lot of us were talking about over the weekend, including a long, long piece in the New York Times, which was making observations about the social aspects of this. But I want to talk about the legal aspects of it. So you have a trial for the murder of two people. It takes six weeks. It has 70 witnesses and it has thousands of pages of data and documents. digital aspects and information that the police gathered about Murdoch, much of which showed that the information he had given to them was untruthful and that they knew he was being untruthful to them. Of course, they were being untruthful to him. As you know, and I have condemned this, the same laws that make it a crime for you or me to lie to the police in an official investigation

and lie to the FBI, permit the police and permit the FBI to lie to us. So the cops knew he was lying to them and they lied back to him in order to draw more lies out of him. His lies were at least consistent lies, but they were lies. Nevertheless, all of this produced a lot of data and a lot of reports and a lot of backup, all of which went into the evidence that is submitted to the jury. So when the jury goes in the jury room to deliberate, They take with them the documents that have been admitted in evidence or the digital materials with a laptop or an iPad or an iPhone that will enable them to access these materials. They're not in there alone. Sometimes they ask for something else like a dictionary, and then you ask them, well, what word do you want to find? I'll define it for you. Some judges don't send the evidence in and

they wait for the jury to ask for it, but the better policy is to send it in. In this particular case, the entire trial was filmed. So if the jury wanted to review any of the testimony, they could simply have asked the court for it. They didn't get the films of the testimony, they could simply have asked the court for it. They didn't get the films of the testimony, but they got all the documents and digital data that was admitted as evidence. Why do I mention this? Because the jury has an obligation to review this. They can't just go in and take a vote. Oh, all 12 of us think he's guilty, so we're finished. Well, that's not fair deliberation. It is fair deliberation if the vote is not guilty. There is no requirement for the jury to scrutinize all the evidence one by one, piece by piece, if they're going to acquit.

They can acquit for any reason. They can acquit for jury nullification. Jury nullification means the defendant is guilty, but we don't think he should have been charged. Not the case here, but I give you that as an example whereby the jury can acquit without reviewing the evidence. But to convict, the jury must review the evidence. Now, four jurors have been making the rounds on television talk shows for the past four days, and they've all said basically the same thing. We took a vote as soon as we got in there. It was nine to convict, two to acquit, and one couldn't make up his mind. Forty-five minutes later, without reviewing any of the evidence,

just by talking, it was all 12 to convict. And by the way, most of us couldn't stand Alex. Well, we have a very serious problem there. We have two problems. One is the jurors promised when they became jurors to review all of the evidence. They didn't do it. The other is that they promised not to make up their minds on guilt or innocence until all the evidence was in and the lawyers had made their closing arguments and the court had explained the law to the jury. They didn't do it. They made up their minds during the course of the trial when many of them decided they hated Alex and when many of them decided the evidence of guilt points to guilt. You can't do that, particularly in a case of this magnitude. So what do you do when the jury comes back with

a verdict after just a few hours and you know it's going to take days for them to go through everything. Well, the court should say to the foreperson, if your verdict is to acquit, I'll take the verdict now. If your verdict is anything other than that, you're going to go back in that room and review all the evidence. That's what should have been done. And that's what Murdoch's lawyers should have asked for. They did not. The reason they didn't is I think they thought he was going to be acquitted. Statistically, a fast verdict, many, many, many high percentage of the times, I don't know that there's any stats with accuracy but from my experience a fast bird verdict in a criminal case 90 of the time means acquittal i think everybody expected the acquittal and that's why nobody said judge they didn't review all the evidence but the judge's job is to preserve the

integrity of the trial if these jurors keep going uh uh the rounds of national television saying we hated the son of a we didn't believe him he was blowing snot out of his nose not tears out of his eyes I'm not making that up that's what one of them actually said the judge is going to end up with a motion for a new trial on his hands and a very substantial case to be made for a new trial and then everybody will be back in the courtroom again not not the same jurors, it'll be different jurors, but Murdoch and the same judge and the same prosecutors and the same defense lawyers. The judge's job is to preserve the integrity of the trial so that both the state and the defendant get a fair trial. That means the jurors have to abide their oaths,

not to make up their minds until all the evidence is in and to review all the evidence. It's obvious to me that they did not do so. Earlier today, I was talking about Ukraine pilots training in the United States, training to fly American F-16s. And I gave the opinion that this is very dangerous. Of course, I stick to that opinion. It's extremely dangerous. If the United States gives F-16s to the Ukrainians, they can target Moscow from those jets. Those are jets that fire missiles, and those missiles could easily reach from Kiev to Moscow. That will substantially escalate this war and will drag the United States into it

in ways that it is not yet involved. We are dangerously involved today. Colonel McGregor has opined and he makes the, gives these opinions on the basis of sources that are trustworthy to him that American HIMARS, very sophisticated missile, a movable missile launching. So missile launchers from a device that's got wheels on it that can be moved. In Ukraine, with Americans operating it, Americans choosing the Russian targets, and Americans in Poland pulling the triggers. That's about as close to Americans' boots on the ground as you can get. Congress has authorized President Biden to spend $113 billion. He spent about half of it, cash and military equipment, but it didn't authorize a

single soldier on the ground. We have boots on the ground out of uniform in Ukraine. You've heard me say this. McGregor backs it up. We have boots on the ground in uniform in Poland, operating these HIMARS electronically, remotely. You've heard McGregor say it. He backs that up. Is Russia a threat to the United States?

No. Are we a threat to Russia? Somebody asked, are our nukes aimed at Russia? I don't know the answer to that. The treaties that we've signed have indicated they would not be. Russia has abrogated the last nuclear treaty. We have not abrogated. We're still complying with it. So if we're complying with it, our nukes are not aimed at Russia. But we posed the threat to Russia when we instigated the coup in Ukraine in 2014. We posed the threat to Russia when we put offensive weaponry in the Eastern European

countries that George W. Bush and Jim Baker promised Mikhail Gorbachev we would never do. President Putin understands it. We know that he understands it. Where in the Constitution, here's the question that another one of you has asked, where in the Constitution is the requirement that the object of our declaration of war be a military threat to us? Stated differently, can't Congress declare war against anybody at once? Well, if you read just the Constitution, signed, and if you read the clause in the Constitution that says this Constitution and all laws made pursuant to it, and all treaties made under it, are and shall be, supreme law of the land, treaties, supreme law of the land. Constitution ratified by the states, treaties signed by the president and ratified by two-thirds of the Senate. So several of the treaties that we have signed

indicate that we can only declare war on a country that poses a grave military threat to us. They've also indicated that we can use our military resources without a declaration of war if somebody's about to attack us. If George Bush and his CIA and his military had not been asleep on September 11, 2001, we could have used the military either to take down those planes, it would have meant killing innocent Americans, before they struck the World Trade Towers and the Pentagon and Shanksville, PA. Would we need to declare war on Russia if it attacks a NATO country? No, we would not, because the treaties we've signed say if NATO countries are attacked, we automatically are at war and we have a legal obligation to help defend

them. Last question. What constitutional clause gives Congress the power to create a State Department? Good question. There's no clause in the Constitution that gives the Congress the power to create a State Department? Good question. There's no clause in the Constitution that gives the Congress the power to create a State Department or a Treasury Department or a Department of Justice. But there is a Supreme Court opinion of which I and many small government legal scholars have been quite critical called McCullough versus Maryland. Without getting into the details of this opinion, this is in the Andrew Jackson presidency, the Supreme Court ruled that even though there were only 16 discrete powers given by the Constitution to the Congress, Congress can do whatever is necessary in order to

fortify those powers, in order to make those powers real. So as an example, since Congress can collect, can assess taxes, it can obviously collect taxes, does it have to put the tax dollars in a bank that the states have chartered, or can it charter its own bank? That's the ruling in McCullough versus Maryland. And the court says, well, even though the Constitution doesn't say Congress can charter a bank, it does not have to use the state banks. It can charter its own bank. If it can collect taxes and spend money and write checks, it can have its own bank. Well, if it can have interactions with foreign powers, including the power to declare war, it can have a State Department. That is at least the argument of the big government types. I'm not a big government guy, as you know. I'm a small government person. powers that are authorized to it under the Constitution and everything else by the states

or by no government at all. Unfortunately, that's not the history. The history is that Congress gets to do whatever it wants, and the courts have pretty much gone along with it. Another example, immigration. There's no authority under the Constitution for immigration. There's authority for naturalization, for deciding who is going to become an, well, of course, Congress can decide who can enter the United States. It was one of those areas where Congress had written laws to exclude people from China, the Chinese Exclusion Act. And some Chinese women were here and they challenged the statute, and they lost their challenge because the Supreme Court, just out of thin air, said Congress can give itself whatever powers it wants as long as it has to do with nationhood. That's the Wilsonian view of the world, the Woodrow Wilson model. Congress can do whatever there is political will for it to do, as long as there's no express

prohibition to do it in the Constitution. The Madisonian model, which is James Madison, the opposite of Woodrow Wilson, Madison who wrote the Constitution, Wilson who butchered it, the Madisonian view is Congress can only do what the Constitution expressly, specifically authorizes it to do, and all other government powers are reserved to the states or for the people on their own. More as we get it. Oh, there is one more thing as we get it earlier. Today, I talked about the Department of Justice jumping the gun and not waiting for Mike Pence to move to quash the subpoena that a grand jury served on him. Pence announced that he was going to move to quash the subpoena. He gave a ridiculous reason for it, that he was

temporarily in the Congress while he was vice president, and therefore the language in the Constitution, the Speech and Debate C clause, which protects members of Congress from being hauled into court to justify their speech or their debate in the Congress pertaining to him, I think that's a losing argument. When he said on national news media that he was going to do that, the Department of Justice moved immediately to enforce the subpoena. When President Trump heard this, his lawyers moved immediately to quash the subpoena on the grounds of executive privilege, which I think we'll lose because Pence has already discussed publicly what Trump does not want him to discuss before the grand jury. Pence then asleep at the switch. I don't know if he heard me this morning or not.

I'm not the type to try and take credit for it. Had his lawyers file papers today, which they did late this afternoon, challenging the subpoena to him on the grounds that he was temporarily a member of Congress and therefore protected by the speech and debate clause. It's a loser legally. It's also a loser politically. Here's a guy, and I know Mike and have known him since before he was a member of Congress. We did radio together. It's a loser politically. Here's somebody who wants to be president of the United States, and he's afraid to discuss before a grand

jury what he has already discussed publicly in his book. Head scratcher. More as we get it. Judge Napolitano for judging freedom.