Judging Freedom - Pence testifies_ SCOTUS oversight_ ATF Laws_

Episode Date: April 28, 2023

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Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Friday, April 29th, sorry, 2023. It's about 1.35 in the afternoon here on the East Coast of the United States. Here are your hot topics for today, and they're a broad array, including I will soon answer questions posed to me via TikTok from a very courageous defender of the Constitution, who also happens to be a police officer somewhere in the great state of Texas. But before I get there, yesterday, the former Vice President of the United States, Mike Pence, whom I've known for many years since we both did radio together, long before you knew me from Fox News and long before he was a member of Congress and then a governor of Indiana, and then the vice president of the United States, Mike Pence, spent seven hours testifying before the grand jury in Washington, D.C. with questions

put to him by the office of the special counsel, Jack Smith. This was probably the crowning moment for the presentation of the case against President Trump and others for whatever the government says they did leading up to and including the events on January 6th. process that got us here. But there were two efforts to prevent Mike Pence from testifying, one by himself and his own lawyers and one by former President Trump and his lawyers. And the last of those efforts failed on Wednesday evening. I spoke about it to you yesterday when the United States Court of Appeals for the Second Circuit said that the vice president had to testify. There's a narrow area where he doesn't have to testify. And that's what he saw and heard and did while he was on the floor of the House of Representatives. And when he was on the podium where the Speaker of the House sits. So he was

there presiding over a joint session of Congress in his capacity as the President of the Senate. Remember, under the Constitution, the Vice President has two jobs. He's the President in waiting. He's the Vice President. He does what the president asks, and he waits to make sure the president's in good health and is breathing. But he is also the president of the Senate, can preside over the Senate anytime he wants. In this particular case of counting electoral votes, the Constitution requires that he preside not over just the Senate, but over a joint session of the House and the Senate. This is the only constitutionally authorized time where both houses of Congress meet as one unit in the same room, under the same roof, at the same time, under the same presiding officer, and that officer is the Vice President of the United States.

Because the Constitution has the Speech and Debate Clause in it, which protects members of Congress from being called before juries and investigative panels and asked to justify what they said, heard, and saw on the floor of the House or the Senate, that same protection applies to Mike Pence. It does not apply to his conversations with President Trump, and it does not apply to what happened to him once he left the floor of the House. It only applies to what happened while he was on the House, either on the floor or up on the podium where he would be for the State of the Union address and where the Speaker of the House would be when he or she is providing over an ordinary session of the House. So with that narrow limitation, the federal prosecutors got to ask him about all of his communications with Donald Trump. Now, we know a lot about them because the vice president wrote a book, which is another reason that his application to quash, as in squash, the subpoena to him failed because he already talked about this stuff publicly in the book. And he also talked about the book and what was in the book when he was on a national PR tour to promote the book. And the

book, of course, became a bestseller. Once you let the cat out of the bag, once you discuss something publicly, you can't later claim that that subject matter was secret. It's no longer secret. So his book basically gave the prosecutors a roadmap to what he would tell the grand jury. Donald Trump said to him in their many, many, many conversations, including some rather unpleasant ones, between election night and January 6th. Whatever it was, that's what he discussed yesterday in seven hours before the grand jury. That's a long time. They probably took 30 or 45 minutes off for lunch and then went right back. What does this mean? This means that a lot of conversations that Trump thought would be intimate, personal, and protected were not. This means that Trump's conversations with his

senior advisors that he thought would be protected by executive privilege were not. Whether you think this is right or wrong, it is a fact that they were not protected. And if anybody told the president that they would be protected, they should have told him. If it is a criminal investigation, then the protection is narrowed to sensitive national security, diplomatic secrets, and military secrets. So those are the only three areas that are protected conversations with the president and somebody else. Anything other than that is no longer protected. That's not new law. That's 1974. That's United States versus Nixon, Supreme Court of the United States. So I don't know what advice President Trump got. I don't know who gave him the advice, but if somebody told him that all of his conversations from all of his advisors, from the vice president on down, are protected, that is not so. That's the way the courts ruled in the four judicial decisions involving the efforts to quash the subpoena.

Mike Pence filed a complaint. Federal District Court judge said, no, you're going to testify. That was appealed to the Circuit Court of Appeals. They upheld the federal district judge. Donald Trump moved to quash the subpoena, went to the same judge. He made the same ruling. It went to the same circuit court, different panel of judges, because there were 13 judges on that court.

They ruled the same way. We don't know exactly what he said, but if you read his book, we have an idea of what he said and the efforts of Donald Trump to get Vice President Pence to reject the electoral votes of enough states so that the decision to choose the president would not be made by the Electoral College. It would be made by the House of Representatives. This has only happened twice in our history. When it is done by the House of Representatives, it's not a roll call vote. It's done by states. So each state has one vote, whether it's California with 43 representatives or whether it's Montana with one. If you figure out how the state delegations are broken down by

Republican or Democrat, and if you assume that every Republican would have voted for Donald Trump and every Democrat would have voted for Joe Biden, it would have been 26 states to 24 Donald Trump. That was Trump's theory of how he could get reelected, notwithstanding the popular vote, notwithstanding the electoral vote, if Mike Pence refused to count the electoral votes from a select group of states. Of course, he didn't. He did count the votes There were, as you know, 61 lawsuits filed All of them claiming fraud 60 of the lawsuits, the claims of fraud were rejected After trials or after motions

The one lawsuit that was not thrown out Was not a claim of fraud It was a claim of process In which the Trump people wanted to be physically closer at the time of COVID to the people actually counting. And the trial judge said, yes, you can be closer. You want to take the chance of being close to somebody who might be sick? Go right ahead. You can be closer and make sure that they're counting the ballots properly. Also know that the Trump campaign hired two well-respected digital companies, one national, one international, to examine all the evidence that the Trump lawyers presented in those 61 cases.

And the companies examined it independently, and each company came out with the same conclusion. There were some irregularities, but there was no massive fraud, and there weren't nearly enough irregularities to change the outcome of the election. All right. All of this is before the grand jury. The fact that Mike Pence testified tells me they are nearing the end of this investigation. And Jack Smith, whether you like him or not, the special counsel will soon recommend to Merrick Garland, the attorney general, whether or not Donald Trump should be indicted for January 6th for a conspiracy to prevent the passage of power from himself to Joe Biden. I believe that the grand jury investigating Mar-a-Lago, the documents, is also nearing the end. Trump's lawyers made a last-minute pitch to the Republican House Judiciary Committee to ask the Judiciary Committee to interfere with the prosecution. There's no procedure in our system for that. The Congress cannot interfere

with a criminal investigation. The fact that they asked for it tells me that they expect the indictment, and this was sort of a last-minute Hail Mary, if you will. Many of you are aware of the allegations against Justice Clarence Thomas, which I think are nonsense, that he failed to reveal the extent of the gifts he received while on the Supreme Court from a wealthy benefactor by the name of Harlan Crow, a Texas billionaire, who also happens to be one of the Justice's closest friends. It turns out that Mr. Crow and his family, Justice and Mrs.. Thomas have vacationed very high end, very five star, private jet, private yacht, private hunting clubs, very, very expensive vacations that if you add it

all up comes into the multi-millions and Justice Thomas did not report it. Well, it also turns out that Mr. Crowe did not have cases before the court. Nevertheless, Justice Thomas relied on a rule that says if it is a case of hospitality, that is, if somebody is providing you transportation, a meal, a meal that they share, a hotel room and a hotel where they're there, a room in a house, which is their house, hospitality, that you don't have to report it. Reason he doesn't have to report it is because the rules that govern judges, the rules that governed me when I was a state judge, the rules that govern all federal judges except the nine members of the Supreme Court would require this kind of public revelation.

I received this from Harlan Crow, and here's the approximate value. I received that from Harlan Crow, and here's the approximate value. Those rules do not apply to the Supreme Court. In response to the kerfuffle about Justice Thomas, which honestly I think the drums are being beaten by Democrats and liberals who are disgusted with his votes on the court, I happen to think he's one of the more principled constitutionalists in the entire history of the court. Nevertheless, these people are looking for some sort of an opportunity to make his life miserable and some crazy belief that he would leave the court while Joe Biden is president and while the Democrats control the Senate. Not going to happen unless nature intercedes. Nevertheless, the Democratic chair of the Senate Judiciary Committee wrote to Chief Justice John Roberts and asked him to come and testify, and the Chief Justice

declined. Then the Chief Justice did something that I don't believe has ever happened in American history, sent a letter to the chair of the Senate Judiciary Committee, Senator Dick Durbin, Democrat of Illinois, and the letter was signed not only by him, but by all nine justices. Be perfectly accurate. He signed it. The other justices' names were typed, were printed there. So there's only one signature on it. He signed it for all of them. So all nine justices unanimously say, the ethics rules don't apply to us and we're not changing them.

Man, I think that is wrong. The same ethics rules that apply to all judges and justices, state justices, state judges, federal judges, bankruptcy judges, federal district court judges, federal appellate judges, state trial judges, state appellate judges, state Supreme Court judges and justices, the same rules should apply to the Supreme Court of the United States as well. But they don't and they're not going to. If Congress enacts some sort of a rule that forces these justices to comply with it, they will invalidate it and say it's unconstitutional. They'll have a good point because we have the separation of powers in this country. And Congress can write rules that regulate Congress, but Congress can't write rules that regulate the president. They can't tell him how to run the military. They can't tell him when to go to Camp David. They can't tell him when to play golf. They can't tell justices when to meet and what rules regulate them. I think that's wrong. I think there should be a uniform system of ethical principles that apply to every judge in the country,

whether it's a local judge doing traffic cases at night or whether it's the Supreme Court of the United States of America. But until there is, the jurists on the United States Supreme Court will only enforce the rules that they want to comply with, and they will only comply with the rules that they want to comply with. And this kind of stuff that happened with Justice Thomas, which in my opinion has not affected any cases at all, will continue to happen. A police officer, we don't know his first name, Officer Bautista from somewhere in the state of Texas sent me a message via TikTok. It's a long message, but we compacted it. And he has two very, very interesting questions, questions about regulations and questions about the Second Amendment. So we're going to run Officer Bautista. He's a great guy. He's a great guy. He's a patriot.

He believes that it is the job of the police to uphold the Constitution of the United States, not unconstitutional laws and not regulations that are nowhere authorized in the Constitution, but the Constitution itself and its plain meaning and ordinary understanding. So you'll hear him in a second. We've narrowed it down to two. He asks a lot of questions, but we put them into two categories, and then I'll answer them. Here's Officer Bautista on TikTok. I can't remember the amendment to the Constitution that basically says any laws made against the Constitution are invalid. If somebody could find that out and text that to me, I'd really appreciate that. The other thing I was thinking

about was the Second Amendment. I want to know what law gave ATF the power to make regulations, because a regulation isn't a law law I took a note to uphold laws and the constitution not regulations so anybody out there could give me clarification on that I'd really appreciate it I gotta tell you officer Bautista you're a great man I don't know anything about your personal life or your professional life or your professional background but from what I observed of you on the TikTok, both the long version, which you can go and see, and the short version, which we just ran now, Gary edited it, you are a great human being with a profound understanding

of the Constitution and of your job, which is to preserve, protect, and defend the Constitution, which was written to limit the government and to keep the government off of our backs. Now to your question, what amendment in the Constitution says any laws made against the Constitution are not constitutional? There is no such amendment. There's nothing in the Constitution that says laws made in contradiction to it are unconstitutional. But there is a very famous Supreme Court opinion that goes back to 1803. Supreme Court was founded in 1789. So just 14 years later in 1803, in probably the most famous Supreme Court opinion ever written,

one of the first that law students study in law school is called Marbury against Madison. I won't get into the facts there or the procedure. It's a little complicated, but it does stand for the proposition that if Congress enacts a law that the Constitution doesn't authorize, then it is the duty of the courts to invalidate that law. And that's basically what happened in Marbury against Madison. That constitutional principle has been followed up to the present day. I'll repeat it. If Congress enacts a law, and of course it's been expanded, if the president engages in behavior that's contrary to the Constitution, if a state legislature enacts a law that is contrary to the Constitution, if a state court issues a rule that is in violation of the

Constitution, if any of these things apply, it is the duty of the federal courts to invalidate what the president did, what the Congress did, what state legislatures did, or what a state court of last resort did. So it's one of the interesting aspects of American history that this is not written in the Constitution. Is it written down? Yes, it's written down in Marbury v. Madison. You can look it up, 1803, opinion by Chief Justice John Marshall, who was a big government guy, but who wrote this great opinion, allowing the courts to uphold the rights of states and the rights of individuals. And of course, Marbury v. Madison has been followed hundreds and hundreds of times by federal trial judges, federal appellate judges, and justices of the Supreme Court. Your second question, where in the Constitution

can the government, like ATF, that's the Bureau of Alcohol, Tobacco, and Firearms that he's complaining about, these are legitimate complaints, because he's a state policeman. He either works for a local town that gets its authority from the Texas state constitution, or he works directly for the state of Texas. But either way, he's not a federal official, but yet he's being asked to enforce federal regulations. Where is the authority for these regulations in the Constitution? Officer Bautista, you are correct again, because the answer is nowhere. Nowhere is the Bureau of Alcohol, Tobacco, and Firearms authorized by the Constitution. Nowhere are these regulations authorized by the Constitution. Regulations are rules written by bureaucrats. The Constitution only recognizes laws, statutes enacted by the Congress and duly signed into law by the president or enacted by Congress.

And the president vetoes it or refuses to sign it and Congress enacts it anyway. But there's no mention of regulations in the Constitution whatsoever. So where does the authority come from? The authority comes from Congress not wanting to write all the laws and purporting to delegate its authority to administrative agencies. And it did so in something called the Administrative Procedure Act, APA is the acronym for it. And the APA allows these bureaucrats, the Environmental Protection Administration, the Food and Drug Administration, the Bureau of Alcohol, Tobacco, and Firearms to write regulations. And then it gives Congress an opportunity to negate the regulations. And if Congress fails to negate them within 30 days of when they've been published, then the regulations become enforceable. They don't become law, but they become enforceable. officer Bautista, you as a police officer hired by the state, you are not required, not required

to enforce any federal gun regulations. You are only required to enforce those duly enacted by the state of Texas. And we know that Texas is one of those states that believes that the Second Amendment means what it says. Wow. More as we get it. Thank you for watching. Judge Napolitano for Judging Freedom.