The governed can’t knowingly consent when deceived by their government

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed … — Declaration of Independence

Judge Andrew Napolitano, a notoriously law-and-order proponent, has a point.

Is 25-year-old Reality Leigh Winner, arrested this past weekend and charged with espionage, a traitor or a patriot?


Columnist and Fox News commentator Napolitano notes that what Winner revealed is that Russian hackers in 2016 planted cookies on the websites of 122 American local government clerks responsible for counting ballots in the presidential election.

Reality Winner mugshot.

“This means that if any employee of those clerks’ offices clicked onto any cookie, the hackers had access to — and thus the ability to interfere with — the tabulation of votes,” Napolitano writes.

But this information was classified top secret. Who was being protected by this classification? The Russians? The sources are undoubtedly computer geeks and not spies in any danger of being exposed. No, the only people being kept in the dark are the American voters who must judge whether their government is competent enough to ensure election integrity.

“Doesn’t the American public have the right to know what the Russians did in the election?” Napolitano asks. “Is it necessarily criminal to make such things public? Isn’t the NSA supposed to protect us from foreign hackers who are attempting to interfere with the core American electoral process — the election of the president — and not keep us in the dark if it fails to do so?”

As with the Pentagon Papers, the question is: Who is being kept in the dark and why?

The Pentagon Papers were assembled at the request of Secretary Robert Strange McNamara in 1967 and was basically a history of the Vietnam War. Daniel Ellsberg copied the report and turned it over to The New York Times, which published excerpts.

The Supreme Court ruled the paper was within its rights to do so even though some material was classified.

The Pentagon Papers revealed that successive presidential administrations had misled the public about the war.

It is difficult for the governed to knowledgeably consent when the government is deceiving them.


Newspaper column: Author of book on presidential power grabs should have enough material for a sequel or two

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”

     — James Madison, Federalist Papers

It is doubtful that when Fox News commentator Judge Andrew Napolitano began writing his newly published book, “Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty,” he suspected President Obama would be providing him enough material for several sequels.

Napolitano discussed the purpose and content of his book during a recent conference call with associates of Watchdog Wire, an online citizen journalism site.

He joked that Obama is helping him sell his book, which was written before the president decided to rewrite the laws on immigration. “The president has exempted so many people from the laws of immigration that no one … can claim he is enforcing them. In fact he is changing them and rewriting them. Those are profound violations of the Constitution,” he said.

As a Fox commentator, Napolitano explains that part of his job is to “monitor the government as it interferes with personal liberty, seizes private property and prevents economic opportunity.”

His job and the book start with the basic principles. “Under our constitutional form of government, the Congress writes the laws. The president enforces the laws. The courts interpret the laws,” the judge offered. “Madison, when he crafted the Constitution, intentionally built tension between and among the three branches of government. So that no one branch could seize power from either of the other two.”

The book is written in two parts. The first half of the book is a history of presidential law breaking and presidential law making. The second half looks at the powers claimed by George W. Bush and Barack Obama after and as a result of 9/11.

It goes from John Adams imprisoning his critics under the Alien and Sedition acts of 1798 to Abraham Lincoln — “the greatest violator of civil liberties in the history of the United States of America” — suspending the writ of habeas corpus and locking up 3,000 newspaper reporters, publishers and editors because he disagreed with their editorials to Woodrow Wilson having people arrested for reciting the Declaration of Independence outside of draft offices to Franklin Roosevelt stealing gold and Lyndon Johnson lying about the Gulf of Tonkin.

Then he gets to Bush allowing spying on Americans without a warrant and allowing torturing of terrorism suspects and Obama ordering Americans to be killed without any semblance of any Fifth Amendment guarantee against depriving “life, liberty, or property, without due process of law.”

Napolitano asked rhetorically: “Why should you care?”

He answered his own question by warning, “You should care, because if presidents become a law unto themselves, one of them one day is going say, ‘You know what? That limit that says my term is only four years and I can’t have more than a second term, I don’t think that’s good law any more and I’m not leaving.’”

During questioning, Napolitano said one way to restrain the power of the presidency would be to elect someone who truly believes in shrinking government, someone like Rand Paul, who wrote the foreword for his book, though the judge quickly added that was not an endorsement. But he did opine that all the other current potential candidates would tend to aggrandize power.

“Only when someone who really believes that the Constitution means what it says, who believes as (Thomas) Jefferson argued that the government should be chained down by the Constitution, only when a person like that is in the White House,” Napolitano said, “and there is substantial support in the Congress for that view, will we see constitutional government. Otherwise, things are going to get worse and worse and worse.”

Currently, he argued, both parties agree our rights come from government, not from our humanity, and both parties are in favor of perpetual war and perpetual debt.

“Until there is a president in the White House who breaks that mold,” Napolitano continued in an on-screen-worthy rant, “who recognizes our rights come from our humanity and cannot be taken away by a majority vote, that perpetual war is destructive and perpetual debt is destructive … Unless and until there is a president in the White House who’ll embrace these views, it can only get worse.”

Shortly after the interview, the national debt hit $18 trillion, having risen 70 percent under Obama, and the administration issued 3,415 new regulations – including 189 rules that cost more than $100 million apiece.

Enough material for a sequel, Mr. Napolitano?

A version of this column is available online at the Mesquite Local News, the Elko Daily Free Press and The Ely Times.

Fox commentator explains what probably will happen next in the Bundy saga

Cliven Bundy addresses crowd. (R-J photo)

Judge Andrew Napolitano on Fox & Friends today explains what the government did wrong in trying to impound Bunkerville rancher Cliven Bundy’s cattle and what they should have done.

As I mentioned Monday, the way to handle a civil judgment is not to send in an invading army but to sit down at a computer somewhere in a government cubicle and file a lien against Bundy’s property.

I wonder how many desert tortoises, just coming out of hibernation, got stomped to death in this fiasco. This is the very time of year the BLM told Bundy he could not graze his cattle on the Gold Butte range because they might step on baby tortoises — a contention that has been proven false.

As for why Harry Reid would have any knowledge or say in any of this is another mystery. But he told a Reno television station Monday: “Well, it’s not over. We can’t have an American people that violate the law and then just walk away from it. So it’s not over.”

Federal Judge Lloyd George dismissed out of hand Budy’s states’ rights arguments:

“Bundy principally opposes the United States’ motion for summary judgment on the ground that this court lacks jurisdiction because the United States does not own the public lands in question. As this court previously ruled in United States v. Bundy, Case No. CV-S- 98-531-JBR (RJJ) (D. Nev. Nov. 4, 1998), “the public lands in Nevada are the property of the United States because the United States has held title to those public lands since 1848, when
Mexico ceded the land to the United States.” CV-S-98-531 at 8 (citing United States v. Gardner, 107 F.3d 1314, 1318 (9th Cir. 1997)). Moreover, Bundy is incorrect in claiming that the Disclaimer Clause of the Nevada Constitution carries no legal force, see Gardner, 107 F.3d at 1320; that the Property Clause of the United States Constitution applies only to federal lands outside the borders of states, see id. at 1320; that the United States‘ exercise of ownership over federal lands violates the Equal Footing Doctrine, see id. at 1319; that the United States is basing its authority to sanction Bundy for his unauthorized use of federal lands on the Endangered Species Act as opposed to trespass, see Compl. at ¶¶ 1,3, 26-39; and that Nevada’s “Open Range” statute excuses Bundy’s trespass. See e.g., Gardner, 107 F.3d at 1320 (under Supremacy Clause state statute in conflict with federal law requiring permit to graze would be trumped).”

Instead of ordering a lien on Bundy’s property, George concluded “that the United States is entitled to seize and remove to impound any of Bundy’s cattle for any future trespasses, provided the United States has provided notice to Bundy under the governing regulations of the United States Department of the Interior.”

George cites a 9th U.S. Circuit Court of Appeals ruling against Humboldt rancher Cliff Gardner, who argued that the state Disclaimer Clause violated the Equal Footing Doctrine and cited the 10th Amendment — to no avail.

The court also dismissed his argument about the Guarantee Clause of the Constitution:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.”

Gardner was jailed for a month and fined $5,000.