Fox Viewers Heard Napolitano Say This About Trump "That Is Immoral, That Is Criminal, That Is Defenseless And That Is Condemnable"

Fox News doesn't have Andrew Napolitano's segment about how Trump obstructed justice up on YouTube. If they wanted a lot of clicks, they'd have it available. As always, though, Fox would rather protect Trump. The random-- and partial-- posting above is likely to be taken down for infringement of Fox's material... so watch it quickly.

What is relatively easy to find, though, is Napolitano's written OpEd for Fox News. Trump, a non-reader, is less afraid of the written word than the televised spoken word, so somehow this remains available.

Last week, Attorney General William Barr released publicly a redacted version of Mueller's final report. That report concluded that notwithstanding 127 confirmed communications between the campaign and Russians from July 2015 to November 2016 (Trump said there were none), the government could not prove the existence of a conspiracy.

On obstruction, the report concluded that notwithstanding numerous obstructive events engaged in by the president personally, the special counsel would not charge the president and would leave the resolution of obstruction of justice to Congress. Congress, of course, cannot bring criminal charges, but it can impeach.

Trump initially claimed that he had been completely exonerated by Mueller-- even though the word "exoneration" and the concept of DOJ exoneration are alien to our legal system. Then, after he learned of the dozen or so documented events of obstruction described in the report, Trump used a barnyard epithet to describe it.

The Constitution prescribes treason, bribery or other high crimes and misdemeanors as the sole bases for impeachment. We know that obstruction of justice constitutes an impeachable offense under the "high crimes and misdemeanors" rubric because both presidents in the modern era who were subject to impeachment proceedings-- Richard Nixon and Bill Clinton-- were charged with obstructing justice.

Obstruction is a rare crime that is rarely completed. Stated differently, the obstructer need not succeed in order to be charged with obstruction. That's because the statute itself prohibits attempting to impede or interfere with any government proceeding for a corrupt or self-serving purpose.

Thus, if my neighbor tackles me on my way into a courthouse in order to impede a jury from hearing my testimony, and, though delayed, I still make it to the courthouse and testify, then the neighbor is guilty of obstruction because he attempted to impede the work of the jury that was waiting to hear me.

Mueller laid out at least a half-dozen crimes of obstruction committed by Trump-- from asking former Deputy National Security Adviser K.T. McFarland to write an untruthful letter about the reason for Flynn's chat with Kislyak, to asking Corey Lewandowski and then-former White House Counse lDon McGahn to fire Mueller and McGahn to lie about it, to firing Comey to impede the FBI's investigations, to dangling a pardon in front of Michael Cohen to stay silent, to ordering his aides to hide and delete records.

The essence of obstruction is deception or diversion-- to prevent the government from finding the truth. To Mueller, the issue was not if Trump committed crimes of obstruction. Rather, it was if Trump could be charged successfully with those crimes.

Mueller knew that Barr would block an indictment of Trump because Barr has a personal view of obstruction at odds with the statute itself. Barr's view requires that the obstructer has done his obstructing in order to impede the investigation or prosecution of a crime that the obstructer himself has committed. Thus, in this narrow view, because Trump did not commit the crime of conspiracy with the Russians, it was legally impossible for Trump to have obstructed the FBI investigation of that crime.

The nearly universal view of law enforcement, however, is that the obstruction statute prohibits all attempted self-serving interference with government investigations or proceedings. Thus, as Georgetown Professor Neal Katyal recently pointed out, former Detroit Mayor Kwame Kilpatrick was convicted of obstruction for interfering with an investigation of his extramarital affair, even though the affair was lawful.

Famously, Martha Stewart was convicted of obstruction of an investigation into her alleged insider trading, even though the insider trading charges against her had been dismissed. And a federal appeals court recently upheld the obstruction conviction of a defendant who suborned perjury in order to impede the prosecution of the sister of a childhood friend.

On obstruction, Barr is wrong.

...The president's job is to enforce federal law. If he had ordered its violation to save innocent life or preserve human freedom, he would have a moral defense. But ordering obstruction to save himself from the consequences of his own behavior is unlawful, defenseless and condemnable.

So here we have former New Jersey superior court judge Andrew Napolitano, Trump confidant and the host of Liberty File on Fox Nation, making the point that the Mueller report illustrates clear and intentional obstruction of justice, constituting legal grounds for impeachment. In Trump's twitter feed, Napolitano is no longer Judge Andrew Napolitano; he's now 'judge' Andrew Napolitano. Trump has a new enemy and it's anyone's guess how long he'll last on Fox.

Trump claims it's all because Napolitano got angry at him for not appointing him to the Supreme Court. Quick, go get the popcorn.

“Ever since Andrew came to my office to ask that I appoint him to the U.S. Supreme Court, and I said NO, he has been very hostile! Also asked for pardon for his friend. A good ‘pal’ of low ratings Shepard Smith.”

Trump’s attack on his often-quoted Fox News judge, who was once his favorite personality on the network, came after Napolitano criticized the president’s actions listed in the Mueller report, which he argued rose to the level of obstruction of justice.

“When the president asked his then-White House counsel to get Mueller fired and then lie about it, that’s obstruction of justice. When he asked Don McGahn to go back to the special counsel and change his testimony, that’s obstruction of justice. When he dangled a pardon in front of [ex-attorney] Michael Cohen in order to keep Cohen from testifying, that’s obstruction of justice,” Napolitano said on his show last Wednesday.

This is the takeaway from what Napolitano said that Trump fears most: "To save a human life or to preserve human freedom, he would at least have a moral defense to his behavior. But ordering them to break federal law to save him from the consequences of his own behavior-- that is immoral, that is criminal, that is defenseless and that is condemnable."

Obstruction of Justice 2: William Barr by Nancy Ohanian