Judge Andrew Napolitano

Tyranny Around the Corner

By Judge Andrew Napolitano - Thursday, May 23, 2013

A few weeks ago, President Obama advised graduates at Ohio State University that they need not listen to voices warning about tyranny around the corner, because we have self-government in America. He argued that self-government is in and of itself an adequate safeguard against tyranny, because voters can be counted upon to elect democrats (lowercase “d”) not tyrants. His argument defies logic and 20th-century history. It reveals an ignorance of the tyranny of the majority, which believes it can write any law, regulate any behavior, alter any procedure and tax any event so long as it can get away with it.

History has shown that the majority will not permit any higher law or logic or value — like fidelity to the natural law, a belief in the primacy of the individual or an acceptance of the supremacy of the Constitution — that prevents it from doing as it wishes.

Under Obama’s watch, the majority has, by active vote or refusal to interfere, killed hundreds of innocents — including three Americans — by drone, permitted federal agents to write their own search warrants, bombed Libya into tribal lawlessness without a declaration of war so that a mob there killed our ambassador with impunity, attempted to force the Roman Catholic Church to purchase insurance policies that cover artificial birth control, euthanasia and abortion, ordered your doctor to ask you whether you own guns, used the IRS to intimidate outspoken conservatives, seized the telephone records of newspaper reporters without lawful authority and in violation of court rules, and obtained a search warrant against one of my Fox colleagues by misrepresenting his true status to a federal judge.

James Rosen, my colleague and friend, is a professional journalist. He covers the State Department for Fox News. In order to do his job, he has cultivated sources in the State Department — folks willing to speak from time to time off the record.

One of Rosen’s sources apparently was a former employee of a federal contractor who was on detail to the State Department, Stephen Jin-Woo Kim. Kim is an expert in arms control and national defense whose lawyers have stated that his job was to explain byzantine government behavior so we all can understand it. When he was indicted for communicating top secret and sensitive information, presumably to Rosen, his lawyers replied by stating that the information he discussed was already in the public domain, and thus it wasn’t secret.

Prior to securing Kim’s indictment, the Department of Justice obtained a search warrant for Google’s records of Rosen’s personal emails by telling a federal judge that Rosen had committed the crime of conspiracy by undue flattery of Kim and appealing to Kim’s vanity until Kim told Rosen what he wanted to hear. In a word, that is rubbish. And the FBI agent who claimed that asking a source for information and the federal judge who found that the flattering questions alone constituted criminal behavior were gravely in error.

Reporters are protected in their craft by the First Amendment, and the Supreme Court has ruled that they can ask whatever questions they wish without fear of prosecution. If Kim revealed classified information to Rosen — a charge Kim vigorously denies — that is Kim’s crime, not Rosen’s. The Supreme Court ruled in the Pentagon Papers case that it is not a crime for a journalist to seek secrets, to receive them, to possess them and to publish them so long as they affect a matter of material public interest.

The government’s behavior here is very troubling. Government lawyers and FBI agents are charged with knowing the law. They must have known that Rosen committed no crime, and they no doubt never intended to charge him, and they never have. They materially misled the judge, who saw the phrase “probable cause” of criminal activity (taken from the Fourth Amendment) in their affidavit in support of the search warrant they sought, and he signed. The judge should have seen this for the ruse it was. It is inconceivable that a person could conspire to commit a crime (release of classified information) that is impossible for that person to commit, particularly with a Supreme Court case directly on point.

This misuse of the search warrant mechanism by misrepresentation of the status of the target continues the radicalization of federal criminal procedure now typical of this Department of Justice. It has claimed that it can release military weapons to foreign criminal gangs just to see where the weapons end up, and that its agents cannot be prosecuted for harm caused by those who received the weapons. It has held that the serious consideration given in the White House by high-ranking government officials to the identity of persons the president wants to kill somehow is a constitutional substitute for due process and thus enables the president to use drones to kill people uncharged with federal crimes. It has extended the public safety exception to the Miranda rule from the few seconds at the scene of the crime spent securing the prisoner, where the Supreme Court has said it resides, to more than 72 hours.

And now this.

The reason we have the due process safeguards imposed upon the government by the Constitution is to keep tyranny from lurking anywhere here, much less around the corner. Due process is the intentionally created obstacle to government procedural shortcuts, which, if disregarded, will invite tyranny to knock at the front door and sneak in through the back. Justice Felix Frankfurter warned of this 70 years ago when he wrote, “The history of liberty has largely been the history of the observance of procedural safeguards.” That was true then, and it is true now.

Do you expect the Department of Justice to cut constitutional corners against you?


Be the first to read Judge Andrew Napolitano's columns and other Voice of Sanity articles by signing up today and having them delivered directly into your inbox each morning.

Additional articles by Judge Andrew Napolitano

Respond to Writer

Comment Policy: We encourage an open discussion with a wide range of viewpoints. Make your case passionately, but please keep your comments civil and to the point (maximum of 1500 characters). Obscene, profane, abusive, or off-topic comments will be deleted. Repeat offenders will be blocked.

If your comment does not appear, it is likely because it violates the above policy or contains links or language typical of spam. We reserve the right to remove comments at our discretion. Thanks for your participation.

11 Responses to “Tyranny Around the Corner”

  1. Lawrence Ekdahl, says:

    I believe the government we have today is actively trying to ignore the constitution and is therefore illegal by breaking their oath of office. Gentlemen, tyrrany is already here.

    • Nigtrider says:

      As Judge Napolitano points out quoting Justice Frankfurter, due process is a constitutional safeguard that enforces liberty. Sadly, this element is thrown by the wayside. Ask most lawmakers, DA's, police and even judges about it and they will say 'What is that?" Nowadays, 'due process' is dispensed with and whatever procedure used is simply what those in power say should be used, the US Constitution and Bill of Rights notwithstanding. Also shame on the judges, and others like him, that robo signed the search warrant without thinking and researching for himself the claim of 'probable cause.'

    • Myron Jones says:

      Obviously obama, holder their lackeys and running dogs are opposed to any process that will arrest their power grab.in All areas of our like except weird sexual applications..Not only are these people tyrants but they also are so nuanced as to be understood by only the select few who directly consort with them and those who benefit from their nuances.

  2. PitBull says:

    Questions regarding reality and observation abound. Starting with, "If a tree falls in a forest and no one is around to hear it, does it make a sound?" The judge discusses valid, serious and troubling questions. His graph starting, "Under Obama's watch…" reflects those issues.

    But who is listening, Judge? This president — and his progressive movement — have brilliantly persuaded an ever-growing dependent class — the truly needy, professional malingerers and well-paid administrative elites — that there's nothing wrong with a certain strain of mob rule.

    So, if 'everyone does it,' is it corruption? If my basic needs 'are met,' is it tyranny? Who sets the rules? Who or what defines the 'procedural safeguards' that sustain a culture? If everything is relative, where's the tyranny?

    To paraphrase a witty ad ('what's in your wallet')….where's your comfort zone?

    • bahmi says:

      Communism as envisioned and practiced by Obama will soon destroy this nation. While your reply is excellent and nicely inclusive, it fails to realize that we are nearly over the precipice and turning back is no option because the nouveau parasites of this nation are too comfy with the safety net that exists but cannot be sustained financially. As a result, we will not have the money to support this welfare system much longer. This makes many of your points moot. We will be sunk before we realize we made a big, big mistake in voting this maniac to the presidency.

      • PitBull says:

        Thanks for the reply.

        But do we really..really…think that the likes of Madame LaFarge and her villainous and tireless co-revolutionaries of today's malingering class — with the conspiratorial help of the administrative and bureaucratic elites who grovel for their votes — CARE if there's 'no money to support this welfare system much longer…'? Really!?

        Our sinking is PRECISELY what she and her 21st century sistas & bros want very, very much…thank you. My points are not moot…they are important and very, very relevant. Sadly, the mainstreammedia and intellectual elites aren't debating 'em.

  3. bahmi says:

    The tragic truth is that our children are ill prepared to deal with the crushing burdens that the government will apply to them. Obama is a spectacularly evil man and the OSU students who adored Obama during his visit are, gasp!, the future of this nation. In reality, they are tomorrow's useful idiots. Our education system is a mess, it has failed miserably. We spend billions and this is what we get. Truly pathetic, a disgrace.

    • John Thomas says:

      Actually, I would argue that the educational system has done what it was designed to do: get the results that you list…

  4. Andrew John says:

    Good article judge.

    But (here it comes) you neglected to say that America, as a govt is no longer a constitutional republic but rather a republican dictatorship (where the constitution exist but is increasingly ignored).

    I already know that. I am also with the Tea Party.

  5. John Fallon says:

    QUESTIONS: Where is the uproar when the IRS goes after liberal causes?
    Why should political organizations have the same tax exempt status as charities?
    Criminals have occupied the White House performing these acts for more than 12 years why complain now?

Leave a Reply

To Receive Free Daily
Articles Via E-mail
Click Here

Featured Columnists

The Problem:
A Government-Created Depression
The Solution: Set the Entrepreneur Free to Create Wealth!

Click here to learn about Robert Ringer's landmark new book, The Entrepreneur:
The Way Back for the U.S. Economy
, that is shocking the establishment.

Liberty Education
Interview Series

Robert Ringer interviews top political, economic, and social leaders on today's most vital and controversial issues.

Dr. Benjamin Carson Interview

Featured Interview:
Dr. Benjamin Carson

Audio file loading...

More Interviews