Written by John Whitehouse
Published
It’s been a week since the Senate began the impeachment trial of President Donald Trump. During this time, Fox News senior judicial analyst Andrew Napolitano has only made a handful of appearances on the network during its weekday coverage.
Monday, he appeared on Fox News and Fox Business to discuss the trial of Michael Avenatti and Jeff Bezos’ hacked phone. This morning, he appeared on Fox & Friends to discuss Trump lawyer Alan Dershowitz:
Last week, he appeared on Fox & Friends on Tuesday the 21st and Thursday the 23rd to discuss Trump’s trial.
Meanwhile, he’s been excluded from the network’s continuing afternoon coverage of the trial, as others have noticed:
This comes as Napolitano has ramped up his criticism of Trump on his Fox Nation show and in op-eds published on Fox’s website. Watch this segment from Friday in which Napolitano not only debunks a number of pro-Trump arguments made by Fox figures, but also says that any GOP senators who told Trump that they will acquit him have violated their oath to the Constitution.
Citation
From the January 24, 2020, edition of Fox Nation's Liberty File
ANDREW NAPOLITANO (HOST): What does it take to remove a president from office? I don't blame President Donald Trump for his angst and bitterness over his impeachment by the House of Representatives. IIn his own mind he has done quote "nothing wrong" and not acted outside the Constitutional powers vested in him and so his impeachment should not have come to pass. He believes that the president can legally extract personal concessions, personal political concessions, from the recipients of foreign aid, and he also believes that he can legally order his subordinates to ignore congressional subpoenas.
Hence, his public denunciations of his Senate trial as a charade, a joke, and a hoax. Well, his trial is not a charade or a joke or a hoax. It is deadly serious business based on well-established constitutional norms.
What are those norms? The House of Representatives -- in proceedings in which the president chose not to participate -- impeached Trump for abuse of power and contempt of Congress. The abuse consists of his efforts to extract a personal political "favor" -- the word favor is in quotes because that's the word he used in his conversation -- from the president of Ukraine as a precondition to the delivery of $391 million in military aid to Ukraine. The "favor" he wanted was an announcement of a Ukrainian criminal investigation of former Vice President Joseph R. Biden and his son Hunter.
The Government Accountability Office -- a nonpartisan entity in the federal government that monitors how the feds spend tax dollars -- has concluded that Trump's request for a favor was a violation of law because only Congress can impose conditions on government expenditures. So, when the president imposed his own condition -- the "favor" -- he usurped Congress' role and acted unlawfully.
But, did he act criminally? And is it constitutionally necessary for the House of Representatives to have pointed to a specific federal crime committed by the president in order to impeach him and trigger a Senate trial?
Here is the backstory.
The Constitution prescribes the bases for impeachment as treason, bribery or other high crimes and misdemeanors. However, this use of the word "crimes" in the Constitution does not refer to violations of federal criminal statutes. It refers to behavior that is so destructive of the constitutional order that it is the moral equivalent of statutory crimes.
For example, as others have suggested this week, if the president moved to Russia and ran the executive branch of the American federal government from there, or if the president announced that Roman Catholics were unfit for office and so he wouldn't appoint any, he would not have committed any crimes. Yet, surely, these acts would be impeachable, because when done by the president, they are the moral equivalent of crimes and are so far removed from constitutional norms as to be impeachable.
In Trump's case, though the House chose delicately not to accuse him of specific crimes, there is enough evidence here to do so. Think about it: Federal election laws proscribe as criminal the mere solicitation of help for a political campaign from a foreign national or foreign government. There is no dispute that Trump did this. In fact, the case for this is stronger now than it was when the House impeached him last year. Since then, more evidence, which Trump tried to suppress, has come to light.
What is that evidence?
Well, it consists of administration officials' emails -- emails from people that Trump appointed -- that were obtained by the media pursuant to the Freedom of Information Act. And those emails demonstrate conclusively that Trump ordered a halt on the release of the $391 million within minutes of his favor request, and he did so pursuant to the "favor" request, and the aid sat undistributed for sixty days until congressional pressure became too much for Trump to bear and he released the aid.
This implicates two other crimes. One is bribery. That's the refusal to perform a governmental obligation -- distributing the money -- until a thing of value is delivered, whether the thing of value -- here, the announcement of a Ukrainian investigation of the Bidens -- arrives or not. The other is contempt of Congress.
Well, if the request for the announcement of an investigation of the Bidens manifested "nothing wrong" as Trump has claimed, why did he whisper it in secret, rather than order it of his own Justice department?
When the House Select Committee on Intelligence sought the emails unearthed by the press and then sought testimony from their authors, Trump thumbed his nose at the House. Instead of complying with those House subpoenas or challenging them in court, Trump's subordinates followed his orders and threw them in a drawer. Earlier this week, his lawyers argued that those actions, throwing them in a drawer, were lawful and proper, and it was the burden of the House of Representatives to seek the aid of the courts in enforcing House subpoenas.
Wow.
That puts the cart before the horse, because, under the Constitution, the House has "the sole power of impeachment." Thus the House does not need the approval of the judiciary to obtain evidence of impeachable offenses from executive branch officials.
We know that obstruction of Congress is a crime. Just ask former New York Yankees pitching great Roger Clemens, who was tried for it and acquitted. We also know that obstruction of Congress -- by ordering subordinates not to comply with House impeachment subpoenas -- is an impeachable offense. We know that because the House Judiciary Committee voted to charge President Richard Nixon with obstruction of Congress when he refused to comply with subpoenas. And the full House voted for an article of impeachment against President Bill Clinton when he refused to surrender subpoenaed evidence.
Where does all this leave us at the outset of Trump's Senate trial?
It leaves us with valid, lawful, constitutional arguments for Trump's impeachment, arguments that he ought to take seriously. That is, unless he knows he will be acquitted because some Republican senators have told him so. Wow. Whoever may have whispered that into his ear is unworthy of sitting as a juror and has violated the oath of "impartial justice" and fidelity to the Constitution and to the law.
What is required for removal of the president of the United States? A demonstration of presidential commission of high crimes and misdemeanors, of which in President Trump's case the evidence is ample and essentially uncontradicted.
Relatedly, Napolitano just last week said that Trump and Trump's team are not interested in hearing from him.
Citation
From the January 23, 2020, edition of The Guy Benson Show
ANDREW NAPOLITANO (FOX NEWS SR. JUDICIAL ANALYST): Do you really think that Donald Trump is concerned about someone else's corruption? Come on. Look at his track record when he was here in New York City building skyscrapers. The business operates on corruption!
...
NAPOLTANO: I would not argue the facts if I were Pat Cipollone. I would say "The President made the phone call. The President tried to hold up the funds. Big deal. Nobody was harmed and it's not an impeachable offense." I think that is the stronger argument for them.
RICH ZEOLI (GUEST HOST): Mmhmm.
NAPOLITANO: But for them to say "it didn't happen, he didn't intend it, just look at the transcript of the phone call, don't look at all the thousands of emails that have been unearthed that show he did tell Mick Mulvaney to hold up the money."
I think that's a weak argument, if they start arguing the facts. Concede the facts, argue the law.
ZEOLI: Judge Napolitano --
NAPOLITANO: But they're not taking my advice!
ZEOLI: Well, have you reached out to them?
NAPOLITANO: They don't want to hear from me.
ZEOLI: They don't want to hear from you.
