Judging Freedom - Authority to use Military Force_Americans killed in Syria_Mass shooter parents be Charged_

Episode Date: March 24, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Friday, March 24, 2023. It's about 1.35 in the afternoon here on the east coast of the United States. These are your hot topics for the day, and I have a lot to tell you. Some of this stuff is very hot, including former President Donald Trump threatening violence, or at least reposting a picture of himself threatening violence toward the prosecutor, the Manhattan DA, Alvin Bragg. We'll get to that in a minute. First, yesterday, the Senate of the United States voted down a proposal by Senator Rand Paul, which would have repealed the AUMF of 2001. What is the AUMF of 2001? So in the modern era, Congress, in order

to avoid what it thinks is a stigma to declaring war. The last time Congress declared war was December 8th. Well, actually, it was after December 8th. It was the second week in December of 1941. Congress declared war on Japan. And then later that week, this is right after Pearl Harbor, later that week, it declared war on Germany and Italy. But in the 1940s, in December of 1941 is the last time Congress declared war. But presidents have been waging war all the time. In the modern era, Congress came up with something called AUMF, Authorization to Use Military Force, AUMF. There are four of them that Congress enacted since 9-11. Senator Paul offered legislation to repeal the AUMF of 2001. This is the one that was enacted

by Congress in the weeks following 9-11, when George W. Bush persuaded everyone that it was the fault of Afghanistan, the government and the people of Afghanistan, that 9-11 happened. And of course, we spent a trillion dollars invading Afghanistan. We spent another trillion dollars staying there for 20 years and we lost and left in utter humiliation. Afghanistan is now the same repressive, male-dominated, suffocating society that it was 20 years ago after we tried to destroy it. You hear a lot about Afghanistan this week because this is the 20th anniversary of the successful, at the time, that is military takeover of Afghanistan. Excuse me, this is the 20th anniversary of the invasion of Iraq, but you hear a lot about Iraq and Afghanistan. Why does the government still need an authorization to use military force, and what's the difference between an AUMF and a declaration of war? These AUMFs are unconstitutional. I'll tell you why. A declaration of war has a beginning and

an end point. So the declarations of war against Japan, Germany, and Italy stopped as soon as Japan, Germany, and Italy ended. So Harry Truman couldn't re-invade Japan or re-invade Italy or re-invade Germany. Once they had surrendered, his authority to wage those wars was over. An AUMF is without end. So the AUMF of 2001, which George W. Bush used as legal authority to invade Afghanistan, was used by Barack Obama to justify invading Libya, was used by Donald Trump to justify sending drones to kill General Soleimani, the Iranian general, peacefully on his way to have lunch with an Iraqi counterpart in Iraqi and in Iraq and was used by President Biden to kill one of Osama bin Laden's henchmen, the Dr. Ayman al-Zawahiri, 70 years old, out of the game, fully retired, standing on the porch of his house saying his prayers, surrounded by a dozen American

agents who could easily have captured him if you want to put him on trial for 9-11. Instead, they blew him away, and Joe Biden used the AUMF, the authorization to use military force as a justification for it. Tell me Rand Paul isn't correct. This is a courageous and proper thing for him to do because Congress is utterly out of control if it thinks that a 20-year-old dispute since ended in ignominious defeat and the loss of a million lives and the loss of $2 trillion of money borrowed in your name can still be the law of the land. You would think that this thing would pass with flying colors. You'd be wrong. Yesterday, it lost. It had in the Senate nine votes in favor and 86 votes it. Senator Paul and a few progressive Democrats and a few libertarian-ish Republicans voted in favor of this. And everybody else, all the big government types and both the Republican and Democratic parties, the leadership of both parties in the Senate. A gang of eight, the people who run the Intelligence Committee

in the Senate, they all voted against this. They all want to give presidents, whether it's Joe Biden or Donald Trump or Ron DeSantis or Bernie Sanders or fill in the blank,

whoever becomes president in the future, to have this ancient, outdated, destructive, unlawful, unconstitutional authority to kill whoever he wants. That's where we are today with a Senate that humiliated Senator Paul. But more than that, he's a tough guy, as you know. He'll sleep like a baby at night. Humiliated the Constitution they have sworn to uphold. While we're talking about war, a U.S. contractor was killed, and five U.S. servicemen, they won't even tell us what branch of the military they're in, was wounded in Syria what is a military contractor

you know private army we keep criticizing Saddam Hussein for having a private army guess what we have private armies that we use as well and the government pays them uh and they kill stealthily and they don't wear uniforms or they wear uniforms without an insignia on it. So it doesn't say U.S. Army. It doesn't say Navy SEALs. What is the military, government, and private doing in Syria in the first place? Helping our friends. That's the answer. Hogwash.

We're trying to defeat Bashar al-Assad, the crazy ophthalmologist, American medical school, by the way, who happens to be the president slash dictator of Syria. What the hell do we care? Why do we need troops in Syria getting involved in this civil war? Is it any wonder that these Iranian drones came after our troops? I do not laud anybody being killed. I am the most peaceful person you know, but I would hope that we would learn a lesson from this. American troops don't belong around the world, and they certainly don't belong in Syria. Will you hear this on the floor of the Senate? Yeah, you'll hear it from Rand Paul and the other eight that voted to get rid of that authorization to use military force. Oh, by the way, what is the legal authorization for sending our troops to Syria? You guessed it. The authorization to use military force of 2001.

By the way, that authorization specifically said to George W. Bush, you can pursue anybody who you think or for whom you have evidence caused 9-11. Now, George W. Bush wouldn't know evidence if it hit him in the forehead. This is the same president who had his secretary of state famously lie in the most articulate speech Colin Powell, an otherwise great man, ever gave, lied to the United Nations and to the world. He eventually admitted that before he died about whether Saddam Hussein had weapons of mass destruction. So George W. Bush had evidence that the Syrians, that the Syria government planned a 9-11? You know, planned 9-11 friends of George W. Bush. There's a picture of them holding hands with the Saudi prince or the Saudi king. They financed 9-11.

We're certainly not going to send any missiles there. Not in favor of missiles. I'm not in favor of killing unless it's in defense or unless it's to strike the first blow when theirs is imminent and just about to come at us. That's not me. That's the laws of war. But to use this authorization, to use military force to engage in killing in Syria and then complain when the people were trying to kill their shot back at us. That's nonsense. It's illegal. It's unconstitutional.

We don't belong there. I'll tell you what else is unconstitutional. We all know of these mass shootings in America. I don't even know if you remember this one. Ethan Crumbly in Minnesota took his parents' gun, which they let him have, which they gave him, and he killed some classmates. Now, he's 15 years old. He's going to be tried as an adult, and he should. But an appellate court just ruled last night that the parents can be tried for murder. Well, this is insane. This is what's

known as vicarious liability, where someone is legally liable for the behavior of someone else. The courts disfavor it. It's wrong to say it is the parent's fault. It may be the parent's fault for giving him the gun. These parents may have engaged in abusive behavior towards their child. They clearly endangered the welfare of a child. These are separate crimes for which the parents can be charged. The parents have been in jail for a year and a half, by the way. Of course, he's in a jail cell on the other side of town where juveniles are kept. They haven't seen each other. The husband and the wife can't see each other except in the courtroom or through Zoom, and the kid can't see the parents. Tell me that's not going to destroy them psychologically. But should the parents be tried for murder? Should anybody be

tried for murder when the murder is committed by a gun and they didn't pull the trigger? Of course not. This is reprehensible that the government wants to do this. The problem with guns is that there are not enough of them. The problem with guns is that when they're in school, it's like shooting fish in a barrel because the schools won't allow teachers and staff and custodians and police. In New Jersey, by the way, when the police are in school, they have to surrender their guns before the end of the building. I mean, how insane is that? But New Jersey is a crazy place when it comes to guns. When the government doesn't allow you to defend yourself, and the bad guys know this, whether they're deranged 15-year-olds or planning and plotting 25-year-olds. It causes the victims to be like fish in a barrel.

So the same government that won't let people protect themselves, ah, we'll go after the parents. We'll make a big name for ourselves. We're modern-day prosecutors. We're going to find adults to prosecute. This is simply outrageous, unfortunate, illegal, and unconstitutional. I don't know anything about the parents. I don't know anything about the parents. I don't know anything about their relationship to the kid.

Their lives are destroyed. Their torment in jail is hard for one to imagine. But to prosecute them for manslaughter when they didn't pull the trigger is simply wrong, and the courts are wrong to allow it. Maybe a jury, which no doubt will convict the son, the evidence of his guilt is overwhelming, unless there's an insanity defense, in which case it's going to depend on what the psychiatrists tell the jury. I hope that a jury basically says to the government, go home, leave the parents alone. Their kid is going to be in jail for the rest of his life and their kid slaughtered innocents and they have to live with it.

That's punishment enough. Republicans in the House passed the Parents' Bill of Rights, measure which would require school districts to post publicly information about curriculum for students, including the books the students will read. Okay, it would be very nice if when you send your children to a government school, you knew what courses they were going to take and what books they were going to read. I don't have children, but if I did, I would want to know that. Well, I wouldn, I would want to know that. Well, I wouldn't send my children to government schools.

You heard me talk about government schools. Let's not get into that right now. Let's get into what business is it of the Congress what is being taught in local schools? Answer under the Constitution. It's an easy number to remember. Zero. The Department of Education is unconstitutional. It is not authorized by the Constitution. The federal government is one of limited powers. It's limited to the 16 discrete, unique, articulated powers expressly given to it in the Constitution. And all other government powers are reserved to the states or to the people. That's not me. That's what the

Tenth Amendment says. And the same person who wrote the Constitution, James Madison, wrote the Tenth Amendment. The same mindset to clarify that the government can't, the central government, the federal government can't do whatever it wants. Now we have Republicans of all things, of all people, with Democrats voting no, with Joe Biden threatening to veto this, I can't imagine it passing the Senate, but who knows, telling local school boards how to run their schools, what information they have to give parents and teachers, and when and where and under what circumstances they have to give that information. That is just plain wrong. And if you like this, if you're a conservative Republican and you don't want your children in school learning about gender

transitioning, which in my opinion, the government should have nothing to do with, think about what a Democratic House of Representatives would do to the local schools when the Democrats run the House. Do you really want the federal government running local schools? Keep your schools and your police local and keep them independent of the feds. The feds can't stop robocalls. They can't deliver the mail. They can't stop the garbage that comes on the internet. They're going to tell local schools that they can't spend their money within the budget. They can't respect the laws or the constitution. And they're going to tell local schools how to run the schools.

I know I'm on a rant, but this is really under my skin and it should be under your skin. What do Republicans in the house stand for? Just their version of big government. There was a time when they stood for small government, limited government, maximum individual liberty, balanced budget, maximum national defense, but defense only, not wars of American exceptionalism. Now you can't tell them from the Democrats, just a different letter after their name. And finally, and this is very upsetting to me, what I'm about to tell you,

it's upsetting to me because it gives me no joy to express legal opinions about the latest with respect to President Trump. It gives me no joy because he and I have been friends for 35 years. You all know this. He called me many times, including from Air Force One, which is an interesting story I'll recount someday, from the White House or while he was president, from the White House operator and from his personal cell phone. And we discussed a lot of public policy and even some personal issues involving him, which I won't repeat. And I cherished that friendship, even though I disagreed with him a lot. I disagreed in public when I was on Fox News. He didn't like a lot of what I said, and he called me up about it, and we hashed it out, and we disagreed in private

on the phone. So it doesn't give me any joy to say this, but his latest behavior could very well trigger when he's indicted, not if, when he's indicted by a Manhattan, Manhattan grand jury, his latest behavior could very well trigger a judge to decide to incarcerate him and not to give him any bail. And if the judge did that, it would be well grounded under the law. And here's why. The criminal defendant cannot threaten the prosecutor. Before I get to the threat, before I show you a picture of the threat that some entity called nationallife.com. I never heard of them. They created the picture and Donald Trump retweeted, reposted the picture. Before we get to that, let me tell you what's happening to

President Trump as we speak. This is the first time in modern history, in the post-World War II, that what I'm about to tell you has happened to a criminal defendant. There's a lot of lawyers representing him. He's got Joe Takapina in New York. He's got a team of lawyers representing him in DC for January 6th. He's got Drew Findling. Joe and Drew are friends of mine. They're both excellent, superb lawyers. He's got Drew Findling and a team representing him in Atlanta. And he's got Evan Corcoran and a team from Florida representing him in Florida and in D.C. because the investigations are in both places for the documents in Mar-a-Lago. Documents in Mar-a-Lago, two classes of charges. One is keeping, retaining, moving, and using national defense information out of a certified secure federal facility.

That is criminal always and everywhere for anyone, including the incumbent president, to do. So even as the sitting president of the United States, he can't take NDI, national defense information, to Mar-a-Lago. That can only be viewed in a secure federal facility of which the living quarters in the White House, of course, is one, as is the Oval Office, as are many other federal facilities around the country. But Mar-a-Lago is not one of them. What is NDI? It assesses the ability of the United States to defend itself. In this case, it assesses the ability of the United States to defend itself. In this case, it assesses the ability of Israel to defend itself, Iran to defend itself, and Ukraine to defend itself. And it includes in there the methods and sources, the names of the human beings that gave this

information to the CIA. Most of these people are double agents. They work for the Mossad and the CIA. They work for the Revolutionary Guard in Iran and the CIA. They'd be killed if they were caught doing this. They work for the Ukrainian intelligence and the CIA. This is what Donald Trump had, obviously criminal to possess. The other category of crimes is obstruction of justice by hiding documents, knowing the feds are coming looking for it. That's what's happening today. Donald Trump's chief lawyer, not his former lawyer, his current chief lawyer in the Mar-a-Lago case, Evan Corcoran, a well-respected former federal prosecutor, as I speak, is sitting before a federal grand jury in Washington, D.C., and sharing with the grand jury and the federal prosecutors his entire file on the case.

What Donald Trump told him, what he told Donald Trump. And he's answering questions about how on earth could a criminal defense lawyer be compelled to reveal all this about his client while he's still representing the client? Okay. You're a lawyer. Client comes to you and says, I just robbed a bank. What are my defenses? That phrase, I just robbed a bank, is secret. It's privileged. It's protected by the attorney-client privilege. And if the lawyer is put under oath, he can't and may not, under penalty of losing his license, reveal it. But if the client comes to you and says,

I plan to rob a bank, what are my defenses? Not only is that not protected by the attorney-client privilege, but the lawyer is required to report it. That's called the crime fraud exception. When the client plans to use or does use the information the lawyer gave him to perpetrate a fraud on the government or on a private person or to commit a crime. So Jack Smith, whether you like him or not, he's the head prosecutor, a guy with the beard, appointed by Merrick Garland, former American prosecutor at the International Criminal Court in The Hague, even though the U.S. is not a party of that court, made a motion before a federal judge to compel Evan Corcoran to prosecute. Corcoran said, go take a hike,

attorney-client privilege. Jack Smith said, crime fraud exception. Federal judge said, okay, you got to prove the crime fraud exception. And they held a trial, a secret trial at which Evan Corcoran, Trump's present lawyer, was represented by lawyers, and Jack Smith was represented by lawyers, and they called witnesses. And the federal judge, after hearing the witnesses, said, you know what? Your client, Donald Trump, lied to you, and he used your information to commit a crime. And therefore, he used what you told him to commit a crime. Therefore, there is no attorney-client privilege. Therefore, you're going to testify. He and his lawyers

appealed that to a federal appellate court, three-judge panel. They ruled unanimously. The trial judge was correct. Mr. Corcoran, you will testify. And as we speak, he's testifying. That's what's going on as we speak. Now I'm going to show you a picture of what Donald Trump retweeted, reposted just a few hours ago. There he is with a baseball bat looking at a gentleman with a goatee and eyeglasses. That gentleman with the goatee and eyeglasses is Alvin Bragg, the Manhattan DA, who is within days of asking the grand jury to indict Donald Trump. Is that a threat to harm or intimidate the prosecutor? You know what? It may very well be. And if the judge to whom the case is assigned, once Trump is indicted, finds that it is a threat, guess what that means?

The unthinkable, no bail. If the defendant threatens the prosecutor, this is standard. I mean, I've set bail in thousands of cases. When the defendant threatens the judge or threatens the prosecutor, and he has the present apparent ability to carry out the threat, Trump's not going to walk in the courtroom with a bat, but he could certainly pick up a bat. Or he could ask his supporters to do so. He predicted this morning that if he's indicted, there will be death and destruction. His phrase, I'm quoting him literally, death, ampersand, destruction, as a result of his indictment. All of this could very well be interpreted to produce two results. One, when he is indicted and does appear in jail, in court, no bail. That means orange jumpsuit and a jail cell.

Again, it's unthinkable. A jail cell guarded by secret service agents, unheard of. Two, it could result in another charge brought by the grand jury, which is an attempt to intimidate, threaten the criminal justice process. That's why I said it gives me no joy to say this. I really wish he would restrain himself. You don't win votes by threatening the government. You don't win criminal cases by threatening the government. You win votes by saying what you will do as president, and hopefully that doesn't mean hit people with bats and threaten destruction and death. And you win criminal cases by telling the with bats and threaten destruction and death.

And you win criminal cases by telling the truth and having good lawyers represent you. He may very well win this. It's an odd case. I'm not going to go through it all. This is the Manhattan case where he's going to be prosecuted in a state court for having committed a federal crime that the feds chose not to prosecute him for. Instead, they prosecuted Michael Cohen for it. He may very well win it. There's absolutely no reason to go through all of these threats. They undermine the system and they weaken your defense.

I'm going to end with more as we get it. I can't imagine what more we're going to get today. Jack Posobiec in a few minutes, a young man who has a strong libertarian following, a former naval intelligence agent who loves to expose what his former buddies are now up to. More as we get it. Judge Napolitano, judging freedom.