Judging Freedom - Jordan subpoenas FBI _ TX abortion pill ruling_ Trump & Pence

Episode Date: April 11, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, April 11, 2023. It's a few minutes after three o'clock in the afternoon here on the east coast of the United States. Your hot topics today and some of these things are very hot. When is the last time that a state prosecutor sued the Congress of the United States? Aha, we're coming up on that. You may recall this tragedy involving a six-year-old first grade student who walked into a public school in Virginia, a school to which the student was assigned and which the student had been attending, pulled a handgun out of his pocket and shot the teacher. Fortunately, the teacher survived. The principal resigned. The superintendent was fired.

The student was arrested. The police don't know what to do with this kid. He's only six years old. An investigation showed that the gun that the six-year-old had belonged to his mother, who left it around the house, loaded, unlocked, and available for this kid to pick up. How he was able to pick it up, how he was able to pull the trigger, investigation and litigation will show. The newsworthy part of this is the teacher, of course, has survived and is suing the school district. She's suing the school district because she complained about this student many times. And even though the student is only six, she felt threatened and

intimidated by the student. She says the school district did nothing. She also says that there was some sort of a suspicion that he might have something on him or with him on the day of this shooting. They patted him down. They found nothing. Whoever patted him down didn't find the gun. Now the mother has been indicted, not for attempted murder, but for impairing the welfare of a child by making a gun available to a child. A similar case in Minnesota where the child actually murdered people. The parents are charged with murder because the kid had a history of mental problems. They gave him a gun anyway. This kid was over 18. So we have a situation that's not quite apt, but the authorities in Virginia, in my view, did the right thing.

You have a duty to control the gun. You have the right to keep and bear arms, but you can't just leave the gun around for a six year old to pick up any more than you can leave a steak knife around or the keys to the car around. And that's what the mother did. She left a loaded gun available for the kid. The kid picked it up, took it to school, shot the teacher. Fortunately, the teacher survived and will be well physically. But she profoundly in her duty to safeguard the gun. Representative Jim Jordan, who was the chair of the House Judiciary Committee, has served a subpoena on the FBI for all documents surrounding this infamous memorandum written by the Richmond field office warning against the dangers of traditionalist Roman Catholics, Roman Catholics that like the Latin Mass. Okay, I'm going to try and be neutral on this because I'm a Roman Catholic that likes the

Latin Mass, and I'm a traditionalist Roman Catholic. I never viewed myself or any of these people that attend the Latin mass with me to be terrorists. Apparently, the theory is that traditionalist Roman Catholics who believe that abortion is murder and that the baby in the womb is a person and sounded the protection of the state would somehow be dangerous to abortion providers and to mothers seeking abortion. There's no evidence for this whatsoever, of which I'm aware. I don't know why the FBI did this.

When Chris Wray, the director of the FBI, was confronted with this information under oath in a hearing before the House Judiciary Committee, he said, oh, just one field office. We have dozens and dozens. He's right. There are FBI field offices in about 70 cities throughout the United States. As soon as we found out about it, we took it back. Well, as soon as they found out about it was after it had been circulated to all the other field offices in the United States. I would imagine most FBI agents looked at it and laughed about it,

but there are always the oddballs that will take it seriously. I mean, the FBI has become a danger to human freedom. It is not authorized under the Constitution. The Constitution doesn't authorize a federal police force. These guys are cops. They just look better, dress better, investigate more high-end crimes, but they're basically cops with a police mentality with guns and badges who think they can do whatever further serves their law enforcement purposes. They have an oath to preserve, protect, and defend the Constitution, and they don't always do so. The idea that traditionalist Roman Catholics, Latin mass attending Catholics are somehow a danger to society is, of course, absurd because there's no evidence for it. Can the FBI target people

because of their religious views? Absolutely not. It can't target Muslims because of their religious views or Jews because of their religious views, and it can't target a brand of Catholicism. This is what all Catholics were like, by the way, before 1970. The Latin Mass has been the Mass of the Roman Catholic Church since the year 375. Not 1375, 375. It went to the vernacular, the local language in 1970. Now the Latin mass, the Pope to the contrary, notwithstanding, there's nothing he can do about this, is making a resurgence and the FBI is worried about it. It is profoundly unconstitutional to commence a criminal investigation against a religious group. Why? Because the freedom of religion, the free exercise of religion is expressly protected in the First Amendment.

You can commence a criminal investigation against any person or persons as to whom there is articulable suspicion of crime. You cannot commence a criminal investigation against a group because you think members of the group might have a proclivity towards crime. What the crime would be in this case is beyond me unless they think it's interfering with somebody going into an abortion facility. If you stand outside an abortion facility and silently pray the rosary, can that possibly be a crime? Absolutely not. In England, it's a crime. In England, you can be arrested for standing outside an abortion facility and privately saying prayers. Not in the United States of America. As far as we

know, this memorandum has been rescinded, repealed, nullified, whatever Chris Wray does to tell all these thousands of FBI agents, don't listen to this nonsense that came out of Richmond. But they will grill him on this, and I look forward to that grilling. I think Chris himself is Catholic. Even if he's not, it'll be interesting to hear how any of this can possibly be justified. Where is the education of these FBI agents? What have they been taught about the First Amendment and the free exercise of religion? Why don't they know that they can't target a religious group? Don't they understand that the free exercise of religion is expressly protected by the First Amendment? Why? Because the King's soldiers and the King's agents,

when we were colonists, failed to protect the free exercise of religion and punished you by imposing a tax on you, forcing you to support the Church of England. And when James Madison wrote the Bill of Rights, he wanted to make sure that the new government here would not treat the colonists, treat Americans the way the Brits

had treated colonists. Some things never change. Okay, while we're talking about Jim Jordan and his investigation of the FBI, he's being sued today by Alvin Bragg. You know that name. Alvin Bragg is the Manhattan DA who filed a lawsuit just a few minutes ago, by the way, in federal court in New York City against Jim Jordan and the House Judiciary Committee, asking the court to quash a sub of harassment against Alvin Bragg because he sought the indictment of Donald Trump. I think they are waging harassment against him, but I don't think a federal court is going to interfere with it because of the separation of powers. A court is not going to tell Congress how it can conduct its investigation. It might quash the subpoena, but it certainly can't stop the House Judiciary Committee from investigating anything that they want that they think can lead to legislation. Article 1 of the Constitution, which gives them broad authority to enact legislation in so many areas that they have the right to do research in the form of Q&A and investigative committee hearings. But the subpoena to the former prosecutor, while the case is going on, I think the court will probably interfere with it. I know I would if I were the federal judge in that case. As far as stopping Jim Jordan's investigation

of whether or not crime is rampant in Manhattan, it would be an embarrassing to Alvin Bragg if he can do it. He claimed today that there are more murders per capita in Columbus, Ohio, the town from which Jim Jordan hails, than in Manhattan. I don't know if that's true or not. Jim Jordan is not involved in law enforcement per se. Alvin Bragg is. This is a little bit of a you-know-what contest between strong personalities very much in the news. The courts are loathe to address these things. They

believe they should be dialed back by the participants. But when you use the power of the government to interfere in a criminal prosecution by seeking testimony and documents from somebody formerly involved in that prosecution, you probably will be stopped until the prosecution is over with. This has nothing to do with Donald Trump. This has to do with the sovereign authority of the state of New York to conduct criminal prosecutions unimpeded by interference from any branch of the federal government. Speaking of filing lawsuits, you may recall this. A former vice president, Mike Pence, was subpoenaed by Jack Smith. That's the special counsel investigating the events of January 6th. The actual subpoena comes from the grand jury in front of which and

to which Jack Smith and his assistant U.S. attorneys are presenting evidence of what they believe were the crimes on January 6th. One of the people they're investigating is former President Trump. Is he responsible for orchestrating all or part of what happened on January 6th? Was there a corrupt or evil intent to interfere with the transfer of power from Donald Trump to Joe Biden? And if there was, was Donald Trump behind it? That's basically what Jack Smith is investigating. One of the people who spoke to Trump before, during, and after the events of January 6th is Vice President Mike Pence.

So this grand jury subpoenaed Mike Pence. Before Pence could do anything with the subpoena, Jack Smith moved before a federal judge to enforce the subpoena. Pence resisted and said, here's why I shouldn't have to testify. I was acting as a member of Congress. You can't force members of Congress to testify because of something called, you've heard me talk about this, the speech and debate clause insulates members of Congress from having to answer under oath for what they did while on the floor of Congress, on the way to the floor of and in the executive branch, even though I was elected as an executive branch member, as the president was on his ticket, I really was acting as a member of Congress when I was as the president of the Senate presiding over a joint session of Congress to count the electoral votes. A very interesting argument. By the way, Pence said,

there is also executive privilege. What I say to the president, what he says to me is privilege. He needs to hear what I'm going to say, and I need to tell him what he wants to hear. And neither he nor I should worry about whether or not I'm going to have to justify it to a grand jury. The federal judge said, I reject most of that. You have to testify to what Trump told you and you told Trump. You don't have to testify to what you said and did on the floor of the House when you were presiding over the joint session of Congress. But you do have to testify, unless Trump spoke to him while he was on the floor of the House, I don't believe that happened.

You do have to testify to your conversations with the former president. That ruling was upheld by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, and Pence was scheduled to testify today. Last night, Trump filed litigation appealing that decision of the three-judge panel of the D.C. Circuit to all 13 judges on the D.C. Circuit. Trump filed the appeal, not Pence. Pence said, I'm not filing the appeal anymore. I'm ready to testify. Trump's lawyers failed to ask for emergency relief. That means that this litigation that they filed will stand on line before it reaches the District of Columbia Circuit. That could take a week. It could take a year. But without asking for emergency relief, it probably will not interfere, no matter the outcome of Trump's lawsuit, which is why it's

a real long shot, with Mike Pence's testimony. We'll see what happens. When Pence testifies, we, of course, will let you know. But this is a long shot, even if the court does hear it. The full court rarely reverses one of its panels of three. And in this case, the decision of the panel of three, just like the decision below, was very well reasoned. There's no executive privilege because under U.S. v. Nixon, the famous 1974 Supreme Court opinion involving Nixon's tapes in the White House, under U.S. v. Nixon executive privilege involving the president only

applies when a criminal investigation wants the information that the executive privilege supposedly protects for sensitive national security, military secrets, and diplomatic secrets. Trump's involvement with January 6th does not fall in any of these three categories. And finally, this mess I have to talk about involving the abortion pill. So a group of pro-life doctors found a pro-life federal judge in Texas and filed a lawsuit before him against the Food and Drug Administration saying way back in the year 2000, 23 years ago, the FDA did not follow its own procedures when it evaluated the scientific efficacy of an abortifacient. An abortifacient is a pill that a pregnant woman takes that results in an expulsion of the fetus. It's a chemical

abortion. You take the pill most of the time. A doctor doesn't have to get involved. And if the fetus is immature enough, the pill will result in the expulsion of the baby in the womb. Now, I make this analysis as someone whom, as you know, is pro-life. I said a few minutes ago, traditional Roman Catholic pro-life. I believe the baby in the womb is a person, and I believe abortion constitutes homicide. If I were the judge and the case were assigned to me, I wouldn't take the case. I would give it to another judge because people, litigants, are entitled to judges who are truly neutral. On abortion, I couldn't be neutral, and it is the job of the judge to be neutral, just like when I was a judge in New Jersey and cases were assigned to me to pull feeding tubes or to pull extraordinary means

of keeping a person alive. I didn't take those cases because I don't believe those feeding tubes should be pulled. I believe miracles can happen and that the feeding tube or the respirator should stay on the person. So you pass the case back to the clerk and they assign it to another judge. If you feel you have a preconceived attitude about the litigation before you, you have to get off the case because all the litigants, whether they belong in court or not, whether it's political litigation or serious litigation, they're all entitled to a fair and open-minded judge. There is a judge in Texas who is profoundly pro-life and there's a procedure in Texas. It's the only state in the union where you have this procedure for picking the judge. In all other federal state in the union where you have this procedure for picking the judge.

In all other federal courts in the country, you file with the clerk of the court, and it goes on a wheel, and the judge's names are on the wheel. And whoever's name is up next gets the case. And then the next case goes to the next judge on the wheel. It's literally a wheel with names on it, like a roulette wheel. Texas doesn't have that system. Texas, you pick the judge. So these pro-life doctors filed a lawsuit challenging the FDA. What their complaint was and how it could be relevant now is beyond me. The statute of limitations that challenged the FDA is six years. So it expired in 2006. It's now 2023. And the federal system requires standing. Standing means that the plaintiff has harm actually suffered distinct from all others. So if I don't like the 39% income tax rate that I have to pay, I can't sue the court. I sue the IRS just because I don't

like that rate. I would have to show that I am suffering harm distinct from all others as to whom that rate applies. These doctors would have to show that they suffered harm by what the FDA did 23 years ago, distinct from all others. Now, the doctors are not people taking the drug, but they satisfied this judge somehow that they do suffer harm, distinct from all others. The judge ruled that because the FDA from time to time amended its filings as new scientific evidence came in from 2000. Therefore, the statute of limitations started to run all over again. Both of these arguments are novel, and I predict will be used to invalidate this opinion

if it gets to the Supreme Court. This is only half the story. The other half of the story is that in the state of Washington, doctors who want to be able to use the pill to prescribe it to their patients and who worried that the Texas judge would do what, in fact, he did do, filed a complaint. It went on the wheel and ended up with a judge appointed by President Obama who ruled the FDA did nothing wrong. The doctors in Texas don't have standing. The case is barred by the statute of limitations. And by the way, I reviewed what the FDA did 2000 years ago, and they complied with

their own regulations and with the authority that Congress gave it. So now you have two federal trial judges, one in Texas, one in the state of Washington, each saying the opposite. The one in Texas says to the FDA, you may not authorize this drug. The one in Washington state says to the FDA, you are fine authorizing this drug. You won't change your own mind. You're the FDA. You want to stick with what you decided 23 years ago? It's legal. It's lawful.

It's okay. What happens now? Ah, now the DOJ will appeal the ruling of the Texas judge to the Fifth Circuit. That's the Circuit Court of Appeals for decisions made by Texas judges headquartered in New Orleans. Abortion opponents, whoever the opponents were in the Washington case, will appeal their loss to the United States Court of Appeals for the Tenth Circuit, which is headquartered in San Francisco. Those circuit courts will probably sit on it for a week, and then the Supreme Court will reach down

and take it. And the Supreme Court will say, too little, too late, nobody's ruling. Abortion is for the states, not for the feds. The FDA ruled in 2000, it's too little, too late to revisit that ruling. That's my opinion as to what I think will happen. Anything could happen. Fifth Circuit Court of Appeals is very traditional, very conservative. They'll probably, if they rule on this, uphold the judge in Texas. The Ninth Circuit Court of Appeals, notoriously very liberal. They will probably uphold the judge in Washington State. Then you have a circuit split. Then you have the Fifth Circuit, Texas, Louisiana, Mississippi, saying one thing on the Ninth Circuit, which is the 15 western most states of the United

States, including Alaska and Hawaii, saying another, then the Supreme Court will have to rule. And it's anybody's guess how they do. My guess is they'll decide there is no standing. It's too little, too late. We're going back to the old FDA rule. The pill is legal. Those are your hot topics for today. How's that for 25 minutes? You like this stuff that I give to you periodically. You like the people that we have on a regular basis. Colonel McGregor, of course, tomorrow, we'll let you know the exact hit time that he's coming on. Let's see if I can look it up for you while I'm still chatting. Colonel McGregor, what time are you on tomorrow? Scott Ritter at 11 in the morning.

Colonel McGregor is on at 3 in the afternoon on Thursday. Ritter, 11 in the morning, Eastern Time, Wednesday. McGregor, 3 in the afternoon, Eastern Time, Thursday. Ritter, 11 in the morning, Eastern Time, Wednesday. McGregor, 3 in the afternoon, Eastern Time, Thursday. You like all this, like and subscribe. More as we get it, you know that. You can rely on it. Judge Napolitano, almost breathless for judging freedom.