Judging Freedom - Hot Topics Today 3-1-23

Episode Date: March 1, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Wednesday, March 1st, 2023. It's about 11 o'clock, a few minutes after, in the morning here on the east coast of the United States. I'm here with hot topics right now. We have a lot of them, some of them very interesting, very fascinating constitutional issues and a blend of constitutional issues, political and legal issues. We'll start with a story that didn't get very much play this morning, and I thought it should have. I mentioned it on another podcast that I was on this morning, a podcaster, Austin Peterson, who agrees with me on nearly everything. And he was surprised that he hadn't heard it. And that's Governor Ron DeSantis, who, as you know, has a book out. Politicians put books out when they're going to run for president, has barred Trump supporters from attending the book signing. What? The governor of a state is punishing people because of the content of their speech. Yes,

that's absolutely prohibited by the Constitution of the United States. You're going to see a clip of this in a minute. So the governor is inside a bookstore and the security guard comes out and says to people that are holding Trump banners, they're hardly dangerous. Trump signs and placards saying, get out of here. It's not up to me. It's up to the governor and the bookstore. They don't want you here. Take a listen. To say if these people are in there saying, let me come out to tell you guys not to be here, why he's here. I thought that Governor DeSantis was like, he always talks about how he's in favor of free speech. Like we have a First Amendment right to be here to rally in support of President Trump. Right. You do. Right. So not now.

So DeSantis' people told you that we have to leave? Yes. Okay. So DeSantis' people are in favor of free to leave? Yes. Okay, so DeSantis' people are anti-free speech. Okay. Now you sound like CNN. No, I'm definitely not CNN. You sound just like CNN. Well, CNN's anti-Trump.

Oh, my. I can't do that. I didn't want to look. I did look. Okay, I need you guys to leave, please. Okay? This looks like a rent-a-cop. This looks like a security guard for a strip mall. This

doesn't look like an armed officer of the state. Nevertheless, we'll start with basic principles of constitutional law. DeSantis is the governor of the state of Florida, and he, through his agents, is using that authority to punish people on the basis of the content of their speech. They want to say, not in a disruptive way. If they were inside disrupting, you can throw them out. But if they're inside silently wearing MAGA caps or holding Trump signs, they can do it. That's their right under the Constitution. The government cannot punish people

because of the content of their speech moreover florida has a public accommodations law a bookstore is a public accommodation a public accommodation is property that the owner or occupier invites the public to come on to when you have that you, you know, a store or a shop or a restaurant, a gym, you cannot discriminate against people on the basis of their politics. That's Florida law. So the governor or his people, he's going to claim he didn't know about it probably, directly or indirectly violated the Constitution he swore to uphold, the First Amendment he swore to uphold, and Florida laws he swore to enforce. Last night, Governor Lori Lightfoot of Chicago became the first incumbent mayor to lose in a primary election in 40 years. Now, Chicago has a system

where there aren't really two parties, so everybody runs in the midwinter primary, and then the top two people run against each other. In Chicago, those top two people are almost always Democrats. There really isn't an organized Republican party in Cook County, Illinois. That's the county that Chicago is in. Lori Lightfoot is no lightweight. She's a former federal prosecutor. She understands how the system works. She knows the damage that crime causes to everyday life in a big city. Chicago is the second largest city in the United States, but per capita is the most crime-ridden. And crime was her undoing, because when people are afraid, they will vote for security.

And the two people that finished above her, she got 17% of the vote. One of her opponents got 34 and another opponent got 20. So the person that got 34 and the person that got 20 will run against each other for mayor. They both ran on a law and order platform. Look, there's only so much you can do for law and order. The police can't violate Illinois law. They certainly can't violate the Constitution. But when the mayor gives the impression, as Mayor Lightfoot has done, that she will pander to certain groups, in this case left-wing progressive groups, of which she is one, that is not going to rest well, even with people who are supposedly represented by those groups. Inner city blacks are the most crime victims in major

cities in America. She did not stand up for them. She stood up for inner city black leadership, which was more into reparations and Black Lives Matter and cops are bad and defund the police than they were in basic protect us so that we can walk the streets, we can go shopping, we can bring our kids to school, we can go home at night without worrying about being attacked. And she, a liberal, suffered for that at the hands of the people you would expect would support her. Who's afraid of the Supreme Court? An interesting editorial in the Wall Street Journal today, which recounts conversations that students are having around the country from and after the oral argument yesterday in the Supreme Court on whether or not the President of the United States can unilaterally forgive student loans. Remember how this works. You get admitted to a college, you apply for student aid, the college gets you a loan. The loan is from a bank. You promise to pay the bank back with interest,

normal loan, but the federal government guarantees the payment. So everybody wins. You get to go to school. The school gets the money. The bank has the loan and the bank has the best guarantor in the world, the federal government, because they can always print money. If you don't pay back, then the federal government's on the hook. There are 40 million student loans out there still unpaid or in the process of being paid. Joe Biden decided to cancel the debt on all of them. That would trigger the obligation of the ready for this number? I may have understated it yesterday, $440 billion with a B dollars, nearly half a trillion. That is an enormous amount of money. That would come from the federal treasury without a vote of Congress. So when these students are saying, Supreme Court is terrible, the Supreme Court is mean. The Supreme Court is rude. The Supreme Court wants to take money from us. No, it doesn't. You signed a note agreeing to pay the bank back. If you borrowed money from the bank to start a small business, you'd sign a note and you'd pay

it back and the government wouldn't be bailing you out. So the question is not, should the students be forgiven? The question is, who should do the forgiving? Why is that the question? Because the Constitution says only the Congress can spend money from the federal treasury or money borrowed in the taxpayers' names. The president can't do that. So if the president really wants these loans to be forgiven ask the congress to forgive the loans well he's not stupid he knows congress is not going to do it don't blame the supreme court

the supreme court's job is to take a statute put it next to the constitution and decide if the statute is inconsistent with the constitution and when the constitution says only the president can spend federal dollars excuse me when the when the constitution says only the President can spend federal dollars, excuse me, when the Constitution says only the Congress can spend federal dollars and the President tries to do it without even asking the Congress, that's wrong and the courts will stop him from doing it. But don't blame the court. The whole purpose of an independent judiciary, I know I'm parroting Professor Lawrence Tribe, but it's a great statement, and it's true, and it's historically accurate. The whole purpose of an independent judiciary is to be anti-democratic, not to cater to the public will, but to protect the rights of the minority from the majority. The majority is whatever Congress wants. They were

elected by majorities. The majority is whatever the president wants. He was elected by a majority. But the rest of us whose tax dollars are in the federal treasury or whose tax dollars will be used to pay back these future loans need to be protected from a president who's violating the Constitution. As for Joe Biden, I think it's a win-win for him. He won votes in November for doing this. He'll win votes next time around because you'll see all these protests when the decision comes out. And he'll say what politicians do. Hey, I tried to protect you.

I tried to put money in your pocket. Don't blame me. It was those black robe judges appointed by conservative Republicans. It was those right-wing judges that did it. Well, let me tell you, those right-wing judges are doing their job, which is to preserve, protect, and defend the Constitution. They took the same oath that Joe Biden did. He doesn't care about the Constitution. He just cares about getting reelected. Congresswoman Marjorie Taylor Greene caused a bit of an uproar last week, and I praised her for it, and I'll praise her for it again, when she said if states

want to secede from the union, they should be able to do it. Oh, everybody from the Wall Street Journal on down said, what is she crazy? Abe Lincoln resolved that in the 1860s. Abe Lincoln was the first head of state in the history of the world to target civilians in a war and to target civilians of his own country. Another argument for another time. My argument is the states voluntarily formed the union by a simple act of legislation. Just as they can undo speed limits or undo the governor's salary, they can just as they can undo speed limits or undo the governor's salary they can undo legislation that joined the union the states should be able to leave it's the greatest challenge congress has when it exceeds its authority under the constitution and that would be some of the

states are going to disobey it the the right to disobey the Congress as a state was inherent in the Constitution. We know that because Madison wrote the Constitution, wrote that, and Jefferson wrote the Declaration of Independence and supported the Constitution, wrote that. How do the states defy Congress when it behaves unconstitutionally? By enacting legislation exempting the persons in those states from complying with the federal dictates called nullification, or if Congress keeps exceeding its power under the Constitution, secession. All right, all that is background to the news of the morning. The news of the morning is that Buckhead, if you live in Georgia, you know what that is. That's a wealthy section of Atlanta, wants to secede from the city of Atlanta. Its taxes are so high because the city

of Atlanta is draining its taxes. Its crime is so high because Atlanta cops can't even get to Buckhead to keep the neighborhood safe because they're consumed with inner city crime. Buckhead to keep the neighborhoods safe because they're consumed with inner city crime. Buckhead wants to leave. I say leave. Now it's going to require an act of the legislature of Georgia to do so. But one of the great principles of human freedom that I think fans of judging freedom and of me know about is that you have the right to leave. The states have the right to leave the union. A county has the right to leave the state. A subdivision has the right to leave the city. The right to leave an oppressive government is an absolute natural right. And the residents of Buckhead in Atlanta have the right to leave Atlanta, just as the residents of Oregon, Western Oregon,

have to leave that left-wing, powder-blue state because they want to join the more conservative Idaho. The Idaho legislature is about to enact legislation welcoming the counties that border Oregon, the counties from Oregon that border Oregon and Idaho. I can't imagine that the legislature of the state of Oregon is going to go along with this, but there's a natural human right to leave individually or to leave in a group. Why shouldn't you be able to attach yourself to a government that works for you. I live in a small town. Many of you have heard me tell this story. In the northwest tip of New Jersey, there isn't even an organized Democratic party around here. Everybody's a Republican. I'm a libertarian. The mayor of the town's a pig farmer,

a wonderful guy. He's been the mayor here for about 40 years, maybe longer. When I was complaining to him one day about taxes, he said, what do you want me to do about it? I said, here's an idea. I'm not going to name the names. You compete with another town, which is our neighbor. Compete with them for my tax dollars. Let's see who can give me more services at fewer tax dollars. He said, I never heard of such a communist thing in the world. Communist, it's pure capitalist. The government hates competition. And when it does have to compete for fear that I or my neighbors would leave the town and affiliate ourselves with the other town where the taxes are far less, that will keep the government in line.

Government is not accustomed to competition. Government is not accustomed to the fear that people will just leave it. Government should always have that fear so that it serves people. It doesn't dominate them. Last story today, showdown at Mar-a-Lago. Okay. Washington Post has a long and fascinating piece today. You can find it, read it.

Talking about the great disputes in the Justice Department over whether or not the FBI should execute a search warrant on the home of the former president. This is actually good news for the government because it shows how thorough and careful the government was before it did this. The head of the FBI office in Washington, D.C., which is where the former president's being investigated and whose FBI agents actually conducted the raid, was absolutely adamant against the raid. The optics look bad. The former president's going to rip us apart. We had enough bad press from the Russia investigation.

We don't need any more. Justice Department, yeah, but we have evidence because we see it on the internal tapes inside his house, the security tapes that we subpoenaed, and we have the testimony from one of his valets that he actually still has top-secret defense information, that he's moving it and secreting it around his house in defiance of the grand jury subpoena we sent him. And this argument went back and forth and back and forth for months

until finally the number two person in the FBI, himself a former agent who originally was siding with the agents who resisted the concept of a search warrant, changed his mind and said, I've looked at the evidence and there are evidence of real crimes here and we can't give him special treatment just because he's the former president. And at that point, the FBI said, okay, we'll do it. We're not going to wear those windbreakers that say FBI. We're not going to carry badges. We're not going to carry guns. We're going to go in there in polo shirts and blazers and khakis and do it as quietly as we can. Of course, it wasn't quiet because the former president himself saw it on the security cameras, which he was monitoring from his home here in New Jersey, where he was on the day that they effectuated the executed the search warrant. And he took to Twitter and other platforms that he has available to him and announced that the FBI was raiding his house. He also made some

damning admissions at the time by saying, I don't worry about that stuff. I declassified it. By saying that, of course, he admitted he had it. This does not complicate the litigation at all, but it is fascinating how the FBI went back and forth with their bosses at the DOJ. Remember, the FBI works for the DOJ. These decisions are made by the DOJ, not the FBI. But it was thoughtful that everybody batted this around back and forth, back and forth, back and forth, until the number two person in the FBI said we're going to do it, and they presented it to the attorney general who looked at the evidence and said, yes, I'm a former federal judge.

There's more than enough probable cause here to sign a search warrant. Let's do it and do it right. More as we get it on all of this. Speaking of the attorney general, as I speak, he's testifying before the Senate where Republicans and Democrats, Senate Judiciary Committee, where Republicans and Democrats are being very aggressive with him. I'll be back in a little while with clips of their aggressive questions and his efforts to answer and my commentary. More as we get it. Judge Napolitano for Judging Freedom.