Judging Freedom - Today_s Hot Topics 2_27_23

Episode Date: February 27, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Monday, February 27th, 2023. It's about 10 minutes after 11 in the morning here on the east coast of the United States. Here are your hot topics. There's about six or seven of them, depending upon how you want to break down these topics. Lots of things happening in my end of the world. Late last week, the Fulton County, the forewoman of the Fulton County Grand Jury, that's Fulton County, Georgia, investigating efforts, alleged efforts by former President Donald Trump, his former lawyer, the former mayor of New York City, Rudy Giuliani, and others to overturn the election of 2016 of electors for Joe Biden in the state of Georgia, went on television interviews, which came across as a dingbat. Can this hurt any potential prosecution

of Donald Trump? Well, you know, grand jurors are not supposed to speak about what happens in the grand jury. The reason for grand jury secrecy is grand juries every once in a while will choose not to indict someone, and the government does not want to be in the business of damaging somebody's reputation because the public knows that they were being investigated by a grand jury when the grand jury decided there's not probable cause to indict. I don't think that's the case here. This was a special grand jury, unique to Georgia law. All it does is investigate. It cannot issue indictments. All this woman saw was a series of witnesses testifying and explanations of their testimony

by prosecutors appearing before it. There's no judge there. There's no defense counsel. There's obviously no defendant because nobody's been charged with anything. The report that this grand jury came up with will now be submitted to another grand jury, which will analyze that report, hear more testimony if it wants, and begin issuing indictments. Did this forewoman who came across, as I said, as a dingbat, there she is. That's a goofy shot of her, but it does capture her personality.

Did this woman damage any potential prosecution of former President Trump, former Mayor Giuliani, or any of the others? I don't think so. She didn't mention any proper names. She didn't mention any crimes. She didn't mention any deliberations. She went as far as she could. She towed the line without stepping over the line that protects grand jury

secrecy. That's not me, although I agree with what I just said. That's the statement by the judge in charge of the grand jury. Again, that judge is not in the courtroom when the grand jurors hear testimony. There are no judges in grand jury courtrooms. But he did say on the record in his courtroom, after she made this round of the media interviews last week, that what she said was not criminal, but she did toe the line. Tomorrow, Tuesday, the Supreme Court of the United States will hear oral argument in a very profound case addressing the power of the American presidency. This has to do with President Biden's attempt, you can call it charity, you can call it big-heartedness, you can call it naked political buying of votes, whatever you want.

His efforts to cancel student loan debt. Now, here's how the student loan programs, there are many of them, work. Generally, this is how they work. The student gets admitted to college and makes an application to the college for financial aid. The college goes out and gets a loan from a bank for the student. Student could also, or with the student's parents, go get the loan on their own. But if they do it through the federal programs administered by the colleges, the banks lend the money that pays for the tuition. the federal government promises to pay the money back if the student defaults. So no default, the feds don't lose any nickel, any money. If there is a default, well, then the feds will pay the money to the bank and the feds will sue the student to see

if they can extract all or a portion of what they paid in the student's behalf. So when the president cancels the debt, what he means is the federal government is now going to pay the students. You're talking about hundreds of millions of dollars, which the federal government, if these debts are canceled, will be on the hook to pay for. Question, can the President of the United States cancel student debt? Answer, no, except under one circumstance, which I'll get to in a minute, and you'll see why I'm chuckling when I tell you what it is. Federal debt is incurred by the Congress, and the statutes are clear. Only Congress can say, okay, we promised to pay this money in your behalf. You didn't pay it.

We're going to pay it in your behalf. Now we're going to sue you. Only the Congress can say, okay, you don't owe it and we're not going to sue you. If the president does that, it exceeds his authority. That's the argument of those who are challenging this program. There are 40 million Americans who have student debt guaranteed by the federal government. 26 million of them applied for relief under the program that President Biden and his Department of Education set up on their own,

not a statute set up by Congress. Then a federal judge in Texas put a halt to it, saying this is unconstitutional, and then it was appealed, and then another case was appealed. The appellate court in one instance sided with the president, in another instance sided with the challengers, so the Supreme Court is going to hear oral argument on this tomorrow, and probably will decide by the late spring. Under what circumstances can the president on his own under the law cancel student debt? You ready for this? In wartime. Hmm. Is this wartime? Are we fighting a war against Russia in Ukraine? You've heard me argue that we are. I don't think this is the wartime that the Congress contemplated. And Joe Biden has not said that because it's

wartime, I can do this. But that statute is out there just waiting for him to act on it. The federal prosecutors investigating President Trump seem to be nearing the end of their investigation in both cases, Mar-a-Lago, the retention, the unlawful retention of national defense secrets, and January 6th. Why do I say they're nearing the end? Because they have begun doing the unthinkable, calling the president's lawyers to testify. Well, how can a lawyer testify against a client? Whatever happened to the attorney-client privilege? You've heard me say this before. Way back when, when I was in law school, the attorney-client privilege was absolute except for future crimes. So if the client came to you and said, I robbed a bank, get me off the hook.

You can't tell that to the government. But if the client came to you and said, I robbed a bank, get me off the hook. You can't tell that to the government. But if the client came to you and said, I robbed a bank, get me off the hook, I plan to do it again, that you could reveal. Okay, now that's been changed to provide for another exception called the crime fraud exception, meaning if the lawyer and the client are in cahoots together to engage in a crime or toenaed his lawyers. The lawyers said attorney-client privilege. Then the special counsel goes before a federal judge and demonstrates in secret to that federal judge what evidence he has to support the argument that Trump and his lawyers engaged in a crime or a fraud. The federal judge, after hearing testimony, cross-examined and challenged by Trump's lawyers, said, okay, you've made the demonstration to me that Trump and his lawyers participated in a crime

or an act of deception, so I'm going to order these lawyers to testify. And they did. We don't know what they said, but they testified. Mike, the other reason I say it's nearing the end game is because they've subpoenaed the former Vice President Mike Pence, who foolishly, in my opinion, announced to the public that he is going to have his lawyers move to quash the subpoena on the grounds of executive privilege. That's the privilege of the President to communicate with his advisors on national security, military, diplomatic secrets, and on what's known as the Speech and Debate Clause. The Speech and Debate Clause,

a 17-word clause in the Constitution, protects members of Congress from being called into account for what they say in their official duties, usually on the floor of the Congress, but now it extends to committee meetings and on their way to committee meetings and on their way from, and conversations they have about what they're going to do at committee meetings and how they're going to vote. Well, Mike Pence is not in Congress. Ah, remember, the Vice President of the United States is also the President of the Senate. So former Vice President Pence is going to argue. Interestingly, former Vice President Cheney made the same argument when he was subpoenaed, and he lost the argument. Former Vice President Pence

is going to argue that when he was presiding over the dual meetings of Congress, both houses at the same time, to count the electoral votes, it was in his capacity as president of the Senate. Therefore, the speech and debate clause protects him from having to explain what he did, what he saw, what his impressions were. That's a loser, in my opinion, because even though he was acting as the president of the Senate, he is not a member of Congress. The Constitution establishes the vice presidency in Article II. Article II is the section of the Constitution that establishes the presidency and the vice presidency. On top of all this, Mike Pence wrote a book, a best-selling book called So Help Me God, that's the name of the book,

in which he testified, in which he wrote about all of this. So if there's any privilege there, the vice president has waived it. This morning, the Wall Street Journal reports that the Department of Energy has decided from its various intelligence community sources that COVID-19 was an accidental leak from the Wuhan virology lab in Wuhan, China. It is also said the FBI agrees with it, the CIA is ambivalent. The CIA can't make up its mind. And the other 18 federal intelligence agencies, the one that they had, once they admit exists, there government runs are not owned by the Centers for Disease Control or the Department of Health and Human Services. They're owned by the Department of Energy. Nobody seems to know why, but the Department of Energy owns them. And, of course, like every federal department, they have their own spies, their own intelligence bureau. So the intelligence bureau of the Department of Energy, the FBI, the Federal Bureau of Investigation of the Department of Justice, have both decided that this was an accidental leak from the virology lab in Wuhan, China. My, my. Those who said that two years ago were called racists and xenophobes. You hate the Chinese.

And were called conspiracy theorists. And now the government itself, which misled the American public and which condemned speech on the basis of its content, absolutely prohibited by the First Amendment, is now saying, saying, those people were right. Welcome to America. Whatever the government has, it has stolen. Whatever the government says is a lie. The New York Post is reporting this morning something that most of us knew, but now is front and center. You're probably familiar with these little spray things that you can use called pepper spray. Somebody attacks you, you spray the pepper spray on them, it temporarily disables them. It's like tear gas. It doesn't kill them, but it will disable them.

They can't see, they can't hear, they can't breathe. Gives you time to run away. You can carry pepper spray in New York City to defend yourself. Of course, you can't use, they can't breathe, gives you time to run away. You can carry pepper spray in New York City to defend yourself. Of course, you can't use it offensively. You can use it defensively if somebody is attacking you. You can carry it, but you can't buy it. You can't buy it directly at any store in New York City, and nobody will ship it to New York from outside the state because they know it's a violation of New York state law to do that. That is absurd. How could it possibly be legal to possess and use something, but it's illegal to purchase it? Only in New York. And finally, today is probably the

last day of the Alex Murdaugh murder trial. There was some very, very dramatic testimony on Friday during the redirect examination. So the defendant takes the stand, his lawyers examine him, that's called direct testimony. Then the government gets to cross-examine him, that's obviously called cross-examination. That went on for six hours. Then the defendant gets, defense lawyers get a very brief period to redirect their client to emphasize something or to ask him again and let him explain what he may have admitted to on cross-examination. On cross-examination, Murdoch was insistent that he never killed his son and his wife, but he did admit that he lied to the police. Now, he's not charged with lying to the police. Believe it or not, lying to the police is not always and everywhere a crime.

It's a crime to lie to the FBI. It's not a crime for them to lie to us. I have a serious moral issue with that. In South Carolina, they did not charge crime for them to lie to us. I have a serious moral issue with that. In South Carolina, they did not charge him with lying to the police, but he admitted under oath that he did so. Take a listen. And in the interview of August 11th, did you tell Agent Owen and Agent Craw, did you lie to them by telling them that you were not down at the kennels on that night? Yes. Alec, why did you lie?

As my addiction evolved over time, I would get in these situations or circumstances where I would get paranoid thinking. And it could be anything that triggered it. It might be a look somebody gave me. It might be a reaction somebody had to something I did. I wasn't thinking clearly. I don't think I was capable of reason. And I lied about being down there.

And I'm so sorry that I did. Most of all, I'm sorry to Mags and Pawpaw. I would never intentionally do anything to hurt either one of them. So he's using the family nicknames. Mags is his late wife, one of the murder victims. Pawpaw is his late son, the other murder victim. I thought it was very risky for him to take the stand, particularly with his very, very checkered background. He admitted to 99 acts of theft by deception in which he stole over three and a half million dollars from funds that his law firm was holding to be distributed to clients.

It wasn't his money. It wasn't even the law firm's money. It was clients' money, as well as admitting to a drug addiction, which he says came about by his addiction to painkillers. However, he was steadfast and unshaken when denying that he killed his wife and son. And I thought that his denials were very credible. Where is the jury now? They're not in the courtroom. They're at Alex Murdoch's house. The judge authorized just about two hours ago that the jury could visit the scene of the murders. Once that's over, they'll come back in the courtroom. There'll be some argument over evidence, and then closing arguments will

probably begin tomorrow. It'll take a full day, maybe a little bit longer, for the defense to make its arguments. The great Dick Harpootlian, full disclosure, a friend of mine, great criminal defense lawyer, one of the best in the South, will make the argument in behalf of Alex Murdoch. And then the prosecutor will make the argument in behalf of the state. And then probably on Wednesday or Thursday, the judge will charge the jury at an old phrase, meaning explain the law to them. And then the jury will get the case.

Did Alex Murdoch or did he not murder his wife and son? Did the state prove beyond a reasonable doubt and to a moral certainty that he did this? I don't think it has. That's just me. I didn't watch the entire trial. I watched the parts of it that I thought were interesting and that I needed to be educated on so I could comment on it to you. A couple of questions from our TikTok friends, not the people that run TikTok, but those of you who communicate to me through TikTok. You say the government cannot be trusted, but how could the judicial system rectify the situation? Well, that's why we have an independent judiciary. And in some states, it's not independent. In some states, the judges run for office and they run affiliated with political parties and they make promises when they run. And if they don't keep those promises, they're going to be voted out of office. That is not a good system. In New Jersey, where I was a judge, I was appointed by the governor, confirmed by the state senate for seven years, and if reappointed and reconfirmed as I was, was another governor by then and another state senate,

some of the senators were still there that had confirmed me the first time, then you have the job for life. In the federal system, nominated by the president, confirmed by the U.S. Senate, you have it for life. That is far and away the better system where you don't run for office and you have a lifetime appointment because then you are truly independent. The whole purpose of an independent judiciary is to be anti-democratic, to stay away from the democratic, lowercase d, to stay away from the democratic branches of the government. The government can be the tyranny of the majority. The Congress can take your wealth. The state legislature can take your wealth. The executive, the president, or the governor can take your liberty. In New Jersey, they were

locking people up because they tried to operate businesses, and they were shutting down churches during the COVID nonsense. The reason we have a judiciary is to be totally independent, to protect and preserve the life, liberty, and property of individuals from the tyranny of the majority. If it's not independent, life, liberty, and property protections are minimal. When it is independent, life, liberty, and property protections are maximum. For that reason, I have great faith in the courts where they have lifetime tenure, but where their political hacks in black robes, I have little faith in them. They sometimes do the right thing, but their motivation is often to get reelected.

My friend, my late friend Justice Scalia used to say, what is the motivation of every politician, no matter what he says and how he votes, to get reelected? Last question, how should natural disasters and accidents be handled governmentally? They shouldn't be handled governmentally at all. The government can't deliver the mail. It can't stop robocalls. It can't fill potholes. It can't even wage war. It can't spend within its budget. How can the government stop train derailments and fix up the atmosphere and the climate and the air and the earth when there's a tragedy like in East Palestine, Ohio. Only insurance companies can when they have the profit motive to do so.

And only lawyers suing the daylights out of railroads that caused this to happen and demonstrating to railroads and their insurance carriers the catastrophic cost to the railroad of its failure to maintain safe practices. That sends a message to other railroads and to the railroad that perpetrated this. But waiting for the government to show up, waiting for the government to clean up, forget it. You'll wait until your sickness consumes you. Hot topics today, more as we get them. Scott Horton later today on the disaster of the American involvement in Ukraine. Judge Napolitano for judging freedom.