When Judge Andrew Napolitano spoke to Salon the week after the midterm elections earlier this month, the outspoken libertarian explained how he's commanded the ear of conservative leaders from his Fox News platform, yet has not hesitated to call out those same people when he thinks they are wrong.
The syndicated columnist has been a well-known presence to regular viewers of Fox News for years. Today he will begin hosting a live program on the network's new online platform, Fox Nation. Napolitano's new show, "Liberty File," will cover current events from his judicial vantage point and with featured guests.
"Liberty File is the new FreedomWatch. We will monitor the government – all American government – as it infringes personal liberty, takes private property, and stifles economic opportunity," Napolitano told Salon by email. "We will call it out when it does these things; and we will do so directly, fearlessly, and often with humor."
This conversation has been edited for length and clarity.
My first question actually intersects with my academic career. I have an MA in History and I’m getting my PhD and I’ve been studying the presidency of Grover Cleveland, who I have interpreted as a conservative backlash against Abraham Lincoln, and I know you have written a bit about Abraham Lincoln. And I’m curious, would you consider Lincoln by modern standards to be more of a liberal or more of a conservative?
I wouldn’t put him in either of those categories. He was an authoritarian, whose behavior killed between 750,000 and 850,000 fellow Americans and whose goal was the centralization of government power, and the opportunity to free the slaves with the military option suggested in midstream. But look, I am not a historian. My historical writings are those of an amateur historian. I am a serious constitutional scholar, yet it’s impossible to be a serious constitutional scholar without understanding the significance of the Civil War.
I understand. Now, I’d like to flash forward 150 years to current politics. Do you think the Maryland lawsuit regarding the appointment of Matt Whitaker as acting Attorney General is legally valid? Do you think they have a case?
The answer to both questions is yes.
It is legally valid because it comes in the context of litigation in which the Attorney General of the United States is a defendant. So it’s perfectly appropriate for them and they do have standing to suggest that he’s not the lawful Attorney General of the United States. The reason they have a case, so to speak, is because there are two statutes governing who can run the Justice Department. A general statute that applies to who can run the principal department of a government when there’s a vacancy in the head of that department, like Secretary of State or Attorney General or Secretary of Defense, and then there’s a specific statute that applies just to the DOJ. So the traditional judicial analysis when two statutes clash — one clash, one is general and one is specific — is to apply the specific. In fact, the general one even makes reference to the existence of the specifics since the general one, the Vacancy Act, came after the specific one.
All of this means, in my view, that any judicial mind examining the circumstances of Mr. Whitaker’s appointment would find that it is not lawful because it does not comply with the specific statute, which requires that whoever runs the DOJ — I’m not talking about any other department, but the DOJ — must have been nominated by the President, confirmed by the Senate at the time they are elevated. The reason for that is because of the extraordinary authority vested in whoever runs the DOJ. You might say, 'Well, the Secretary of Defense has extraordinary authority, he kills people.' Yes, he does, but he can’t fire a shot without the President’s permission. The Attorney General does not need the President’s permission to commence a criminal investigation, to direct the FBI, or to shut down a criminal investigation. For that reason, Congress required the Senate confirmation because Congress wants to know the legal thinking of the human being who’s going to run the DOJ. It’s too much power, Congress wrote — not I — to put in the hands of an untested, unexamined person, which is what Mr. Whitaker is. By untested and unexamined, I mean untested and unexamined by the rigors of the Senate confirmation process.
I suggest to you Matt, that the federal judge in Maryland will find the argument I’ve just summarized appealing.
Thank you for sharing those thoughts.
Now, I’d like to go on to the issue of bipartisanship, or more specifically of people who are conservative being able to work with liberals and people who are more liberal-minded being able to work with conservatives. You appear on Fox News. President Trump pays attention to what you have to say, and yet you are willing to say things that I’m sure you know he won’t want to hear. How are you able to strike that balance between being critical of the president while still making sure that you won’t alienate him?
Well, my job is to be intellectually honest, to explain the Constitution and the law and occasionally Economics 101 as I understand them to be. Sometimes that conflicts with what the President wants to hear. If I do it in an intellectually honest way, I’m satisfied with what I’ve done. That does not always please everybody, but my job is to please the people I work for, who require intellectual honesty of me. My position is a little unique because the president has been a friend of mine for 25 or 30 years and occasionally I hear from him on these things in his own unique and inimitable way. But I have no difficulty interacting with people at Fox who are a little bit more strident in their support of him or a little bit more strident in their adversity toward him. Again, my job is to be intellectually honest as I understand the Constitution to be and the laws as they have been written. Come what may.
Okay. How do you think… how are you able to preserve your friendship with Trump? Has he ever discussed issues where you’ve disagreed with him?
I don’t want to discuss the conversations I’ve had with him except to say that he’s very colorful and very candid in those conversations. I’m honored that he chooses to call me. I respect him and I respect the office and we sometimes have spirited conversations.
I’m not asking you to divulge any secrets that Trump has shared with you. I think I’m asking a much broader question that really goes beyond you and Trump individually, which is America is very divided. People are very fiercely disagreeing with each other and something that I believe, which is why I reached out to you and wanted to speak with you, is that it’s important to be able to disagree without being disagreeable in order to –
I couldn’t agree more with what you’re saying.
How are you able to maintain that friendship? You don’t have to get into specifics, I think you understand the broader point I’m trying to make.
You know, I don’t know what the answer to that question is because it’s a question that requires a bilateral examination. It’s a question as much of his mind as it is of mine. And I have not hesitated to write, if you look at my column from two weeks ago, that much of the division in the country is caused by the choice of his words, by him, and his demeanor. But my friendship persists. I mean, you have to ask him why he still calls me. [laughing]
I would say it says something. It reminds me of how during his post-election press conference last week [this interview occurred in early November], he said that he would be willing to work with liberals on issues like infrastructure. And do you think that was genuine on his part? And if so, what can liberals do to actually make good on that?
I don’t think the President is ideological. I mean, I’m a libertarian. To me, there’s no justification in the Constitution for rebuilding infrastructure, but I can understand that that is an area common to this President, and the folks that now control the House of Representatives, and even to the big government impulses of the Republicans in the Senate. To the extent that I am disenchanted with the toxic political tone of the last midterm, the one we had last week, and prefer that the Democrats legislate rather than investigate, put aside my libertarian views on the Constitution, infrastructure is something on which they agree. I think the debt incurred by the type of infrastructure building the President has contemplated would be catastrophic, but the political rewards would be short-term and immediate.
You think there is an opportunity for liberals on that issue to actually get something done that they would want?
Yes, I do, because the President is not ideological. This also appeals to another impulse in him, which is to build. He likes to build things and Nancy Pelosi is going to show up in the White House one day and say, ‘Here’s what we’d like to build,’ he’d probably add to the list rather than subtract from it.
Trump seems to admire Andrew Jackson. That appears to be his favorite President. Would you say that Trump is achieving the historical significance of a Jackson based on the trajectory that his presidency has taken so far? Setting aside whether you think that significance is for the better or the worst, just whether he is a game changer like Jackson?
Well, I can’t answer that until this term — either this one or the next one, if there is a next one — is over. I can tell you that I think he’d like to be the game changer that Jackson was, but it’s nearly impossible for me to assess his trajectory, particularly now that the Democrats have comfortable control of the House of Representatives. I don’t know where that trajectory is going to go, and it’s impossible for me to assess how history will review it. I think I know him, the man, well enough to know what will please him. But you’re asking about trajectory and legacy, and though these are fine questions, they’re immeasurable, incapable of being measured at this point in this presidency.
That’s fair. I actually would agree with that. Jackson’s greatest, or at least most notable, achievement was taking down the National Bank. He didn’t even approach that until 1832, which –
I can’t imagine that Trump would do that, because he believes in banks and loves debt, so in that respect he and Jackson are opposites. They may be comparable in personality, to the extent that someone can measure one's personality or somebody from 150 years ago, but on the banks they are the opposites.
Okay. So I would like to pivot toward a couple other couple legal questions. Are you familiar with the anti-Obamacare lawsuit that has come out of Texas?
I am generally familiar with the litigations that are challenging the Affordable Care Act. Have I read the complaints on the one in Texas? No. I know that Texas has taken the lead in a lot of this and there’s probably about 26 states involved in it.
Well, I guess my question, is as a judicial analyst, if you had a metaphorical crystal ball, what would your prediction be about whether it will prevail, similar to what you were saying earlier about your thoughts regarding the Maryland case about Matt Whitaker?
Okay. I will tell you this. If the Affordable Care Act case came to the present Supreme Court, as opposed to the one to which it came in 2012, I think the Affordable Care Act would be invalidated as exceeding the Commerce Clause powers that the Constitution vests in the Congress. I don’t believe that the Chief Justice’s argument that you can regulate anything you want just by calling it a tax would find four other votes on this present Supreme Court. And I think that the people who are animating the case in Texas, since one of them is a sophisticated lawyer as well as a political leader, Greg Abbott, the governor of Texas, share my view of that. I mean, stated differently, the Affordable Care Act would never cast muster with the present Supreme Court, the way it did with the one in 2012.
Okay. My last legal-related question, and then I have one additional question before I will have gone through the list, is about the inclusion of the citizenship question on the 2020 census form. There are people who are claiming that that is discriminatory or in other ways illegal. What are your thoughts?
When the census taker knocks on my door, I tell him how many people live there and that’s it. I don't think they have the right under the Constitution to ask anything beyond that. So their questions about toilets and income and relatives and places of origin, in my view, are all unconstitutional. I simply don’t answer them.
Okay. My final question for you is about your libertarian background and the fact that the Gary Johnson campaign in 2016 did incredibly well compared to previous Libertarian presidential campaigns. Do you think there could be a sort of silent libertarian movement in terms of its growing in this country and if so, what do they need to do in the Trump era in order to achieve more success?
Gary Johnson is a long-time friend of mine, but they need a leadership that is more dynamic and compelling and attractive than Gary has provided. They need to articulate to the public the dangers of war and debt. Those are the two principal areas of government on which there is no disagreement between Republicans and Democrats and which, if left unchecked, will destroy our society as we know it. If Donald Trump continues to borrow money for the next six years, let say he’s re-elected, at the same rate at which he has borrowed, we’ll be paying about 33 cents on every dollar of revenue collected to debt service, and that will be more to debt service than there will be paying to fund the Pentagon. That is not sustainable. Libertarians need to articulate that, articulate the dangers of it, and they need to do it in a way that appeals to the young people. Since the impulse of many, many millennials is, “Hey government, stay out of my bank account and out of my bedroom.”