diGenova & Toensing: Judge Napolitano Is Wrong On Both The Law And Facts

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Lawyers who opine on TV have a professional and ethical duty to provide a correct analysis of settled law. Not falsely accusing a person of committing a crime is part of that duty.

In a glib interview last month with Shepard Smith, former New Jersey Superior Court judge and current legal analyst Andrew Napolitano mis-cited both federal election law and Department of Justice legal opinions while wrongly claiming that President Trump was a “co-conspirator” with Michael Cohen in two counts of federal election law violations and, thus, “is an unindicted co-conspirator.” After airing this interview on his radio program, Mark Levin demanded that Napolitano apologize to the president.

Perhaps Napolitano is upset because he had told friends he was on the president’s short list for the U.S. Supreme Court seat offered to Brett Kavanaugh. Or perhaps he just does not know federal law, since he misstated what constitutes a federal election law offense when lawsuits are settled, in Cohen’s case with alleged former paramours of then-candidate Trump.

Cohen pled to a non-crime to assuage prosecutors. The charging language in Cohen’s FEC violations was used solely to embarrass the president. Why would he plead to non-crimes?   Prosecutors had Cohen by the cojones because, during a five-year period, he evaded paying taxes on “millions of dollars of income.” He also made false statements on a loan application.  Cohen simply had to cut a deal to save his own skin.

Federal election law requires the offender to “know” the specific conduct is a crime. Most crimes do not allow ignorance of the law as a legal defense. The reason for the high standard in this context is that the conduct, settling a lawsuit, is legal.

According to former FEC Chairman Bradley Smith, cleaning up personal issues to run for office is not a campaign expense. Of course, President Trump did not use campaign funds, which would have been problematic, but instead paid the settlements from his own pocket.

Cohen was a “fixer” lawyer, rarely consulting law books to carry out his clients’ needs, so it is unlikely he would know if any of his actions ran afoul of the law. It would be amazing if he knows all the rights specified in the First Amendment, let alone every provision of arcane federal election laws. In any event, the conduct is legal. If it were criminal, more than 250 members of Congress who settled lawsuits while running for office should expect to be indicted.

To be a co-conspirator, Trump also would have to “know” that such settlements were illegal under federal election law. Cohen has never claimed he told candidate Trump that making the settlements was a “crime,” only that Trump “knew it was wrong.” As Professor Alan Dershowitz observed, even if Cohen told Trump it was criminal, merely “saying something is a crime does not make it a crime.”

Napolitano declared that three people merely sitting in a room constitutes a conspiracy. He then said that the president denied “this” and “it” happened, but carelessly failed to specify what he meant by “this” or “it.” Trump does not deny that payments were made, but rather that he never approved anything criminal to be done, which is the legal standard.

Napolitano erroneously asserted there are three Department of Justice Office of Legal Counsel opinions (OLC provides legal counsel to all executive branch agencies) about whether a sitting president can be indicted: two holding he cannot and one that he can. In a separate TV appearance, Napolitano contradicted himself, claiming there are only two opinions, albeit conflicting ones.

In fact, there are two OLC opinions, one written under the Nixon Justice Department in 1973 and the other written under the Clinton Justice Department in 2000, both clearly holding that indicting a sitting president would be “unconstitutional.” Only impeachment complies with the Constitution.

Evidently, that third “opinion” Napolitano cites is a 1998 unsigned letter to Ken Starr based specifically on the Independent Counsel Law, which no longer exists, and relating facts specific to then-President Clinton. Even a first year law student knows that the OLC, like the Supreme Court, cannot have two extant conflicting opinions. The later opinion would have to overrule the previous one. A 1998 unsigned letter is of no legal significance compared to a 2000 OLC opinion.

Napolitano quoted the Cohen sentencing judge completely out of context, claiming Trump is a co-conspirator because the court had found that “the President orchestrated and paid for [the Cohen FEC] crime.” In fact, the judge merely repeated what Cohen had confessed to during his guilty plea: “Mr. Cohen admitted that he [facilitated payments to silence two women] in coordination with and at the direction of” candidate Trump. That statement is not a judicial finding of “conspiracy” as Napolitano would have us believe. It doesn’t even technically describe a crime, as there is no claim of criminal knowledge by Trump.

Napolitano misstated findings about the statute of limitations issue in the two OLC opinions, claiming “all three” state that the president can be indicted “in secret” but it would be sealed until “the day” the president “leaves office” because we cannot let him “go scot free.”

The two OLC opinions do address the issue, but they differ 180 degrees from Napolitano’s mischaracterization. Both state that Congress could pass a law that tolls the statute during the presidential term, but Congress has never done so. The 2000 opinion even pooh-poohs Napolitano’s concern that a culpable president avoids punishment, noting that securing a timely indictment, “while a legitimate interest,” is not of such “constitutional weight when compared with the burdens … indictment would impose on the Office of the Presidency.”

Whether ruling from behind the bench or opining from a curvy couch on television, legal experts have a duty and an obligation to be accountable to the specifics of  legal statutes and official Justice Department policies, as well as the merits of the case.

As we detail here, Napolitano, wrong on both the law and the facts involving President Trump, committed pundit malpractice. Don’t expect an apology, though. He’ll probably go “scot free.”

Joseph DiGenova  served as United States attorney for the District of Columbia from 1983 to 1988.

Victoria Toensing served as deputy assistant attorney general in the Criminal Division of the U.S. Justice Department from 1984-1988, where she established the department’s Terrorism Unit. She is founding partner of the Washington, D.C. law firm diGenova & Toensing, LLP.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.