Judge Napolitano: DOJ made ‘mistake’ by not fighting Mueller report subpoena

May 10, 2019

Judge Napolitano: DOJ made ‘mistake’ by not fighting Mueller report subpoena Image Source: Screenshot

Fox News legal analyst Judge Andrew Napolitano took the increasingly rare step of siding with the Trump administration Thursday in its refusal to release a full, unredacted version of Special Counsel Robert Mueller’s Russia report.

In fact, Napolitano — who recently called the president “immoral, criminal, defenseless, and condemnable” — announced that the Department of Justice (DOJ) made a “mistake” by not fighting the House Judiciary Committee’s subpoena for a full, unredacted copy of the Mueller report in court.

Napolitano’s analysis came during an appearance on Fox and Friends Thursday. Watch below:

Mueller report madness

The Democratic-led committee voted Wednesday to hold Attorney General William Barr in contempt for refusing to hand over the unredacted report. Barr is invested with broad authority under DOJ policy to redact portions of the special counsel report, and he is obligated to protect grand jury testimony and intelligence gathering secrets contained within the document.

Also on Wednesday, the White House asserted executive authority over the entire Mueller report and its underlying documents. This set off a firestorm of accusations from House Democrats, who hysterically labeled Trump a “dictator with authoritarian tendencies.”

The court is in session

During an appearance on Fox and Friends, Napolitano disputed Democratic claims that the attorney general initiated a “constitutional crisis” by refusing to comply with their subpoena. He thinks Barr “did the right thing” by not releasing the redacted material.

However, Napolitano argued the DOJ should have taken a harder line with the Judiciary Committee. “When you get a subpoena — which is presumed valid even if it’s politically motivated, it’s a legal instrument — you can’t sit on it. If you can’t comply with it, you file a motion before the appropriate judge to quash it,” he said, explaining that the courts would decide how to deal with the subpoena.

“A judge would look at the report and say, ‘I’m going to decide what can be released,’” Napolitano said.

Instead, DOJ officials decided to negotiate with Democrats by releasing a partially unredacted report. Lawmakers turned down an offer to see it, though, because only 12 members of Congress would be granted access to the material, and they could not discuss it with fellow legislators.

Napolitano believes that Barr should have sought the legal backing of a judge. “That’s the mistake I think the DOJ made by not doing that and letting it get to this ‘contempt’ stage.”

Not a crisis

The former superior court judge shrugged off accusations from the left that the Trump administration has started a “constitutional crisis” — or a legal battle between the executive and legislative branches of government. It would only be called a “crisis,” Napolitano argued, if the White House or DOJ hypothetically refused to turn over materials after a court ordered them to do so.

The Trump administration doesn’t appear to be wavering in its decision to rebuff House Democrats. “Chairman Nadler is asking the Attorney General of the United States to break the law and commit a crime by releasing information that he knows he has no legal authority to have,” White House Press Secretary Sarah Sanders said Wednesday. “It is truly outrageous and absurd and he should be embarrassed that he is behaving this way.”

A federal judge from the district court in Washington, D.C. will decide if Barr should be held in contempt of Congress. Most analysts agree that the U.S. attorney will refuse to prosecute, setting up a legal battle for the Mueller report that could go all the way to the Supreme Court.

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Benjamin Baird

Benjamin Baird is a senior staff writer for the Conservative Institute. He is a veteran infantryman of Iraq and Afghanistan with over 1000 days in combat and holds a degree in Middle Eastern studies from the American Military University. Ben is Writing Fellow at the Middle East Forum and has written for dozens of conservative publications, including The Daily Caller, American Spectator, American Thinker, New English Review and Jewish News Syndicate.