You know there was a time when I thought the judge had his head screwed on pretty well, but recent events have led me to believe otherwise. First, he was a first level trial court judge in New Jersey, not a US District Court judge or an Appellate Court judge at the federal or state level. Thus he’s hardly a leading legal light. He’s more like Judge Judy. Also he didn’t attend Harvard or Yale or Stanford, he went to Notre Dame. This is not a put down on ND, it is presently rated I believe like 20th in the nation. My law school is presently rated 40th. However, that’s now. All you need to know is that when I was applying to law schools and took the LSAT, as part of the price for the test you could have your scores sent to 4 schools for free. I had mine sent to Harvard, Yale, Florida and for the hell of it–ND. I applied to the first three because I figured if I didn’t get into Harvard or Yale it wasn’t worth the cost to go out of state. ND accepted me without me even applying.
Now my problem with Napolitano is that he has recently been putting out opinion pieces which seriously cause me to question his legal acumen. He’s made it clear that he’s not a Trump fan but a libertarian — which is fine — but it appears to be affecting his ability to put forth rational opinions. (If you want to see someone who doesn’t let his personal preference affect his legal opinion look up recent articles by Alan Dershowitz or Andrew McCarthy.). Judge Napolitano has repeatedly suggested recently that Trump’s constitutional authority as THE EXECUTIVE, is somehow constrained by the Independent Counsel act, which I believe was declared unconstitutional and led to the DOJ regs which allow appointment of a Special Counsel. However, DOJ cannot issue a regulation changing a president’s constitutional authority. It doesn’t work that way anymore than Congress can pass a law changing the Constitution.
The bottom line is that as President, Trump is in charge of the entire Executive Branch and neither Mueller nor the FBI is independent. He has the constitutional authority to fire them all for any or no reason.
Rosenstein exceeded his authority by appointing Mueller in the first place. The relevant regs allow for appointment of a Special Counsel only to investigate a specific crime. A foreign intelligence investigation is not a criminal investigation and at the time of Mueller’s appointment, there was no crime. Therefore, Rosenstein caved to political pressure and appointed someone without the authority to do so. Trump has every right to be upset with Rosenstein.
While he has the constitutional authority to fire them both, the swamp creatures on both sides would go bat shit crazy and his ability to get anything done would be close to zero. He needs to quit tweeting and let his legal team and other surrogates continue to pound Mueller on his apparent conflict of interest. They have been doing so but only on the fact that Comey and Mueller are joined at the hip and even vacation together. They need to expand the criticism to include the fact that any real investigation would include Comey’s potential criminal activities. After all, he converted federal documents to his private use without permission or approval and then leaked them for his own purposes. This should help counter the nonsense spouted by many ‘legal authorities’ that having a prosecutor that is friends with a cop is not unusual or unethical. While that may or may not be the case depending on the circumstances of a particular case, it certainly isn’t the case where the prosecutor’s buddy is one half of a he said/he said pissing contest. If Mueller really is the supposed straight shooter everyone claims, he’d recuse himself! That would be a good first step but not really good enough since he has hired a bunch of Dem supporting prosecutors, including one who represented Hillary and the family slush fund on the email debacle. [It is also worth noting that Comey may well have perjured himself in his Senate testimony when he said he didn’t make notes of his conversations with other presidents. However, in a book out on Cheney, the author quotes extensively from notes made by Comey on a conversation he had with Bush. Not unsurprisingly, Comey’s notes paint himself as a savior of the country. Sounds like standard Comey derangement.]
Republican lawmakers need to speak out about this illegal investigation and push for Mueller’s removal. And Rosenstein, as indicated in an article by Andrew McCarthy this morning, needs to resend his delegation to Mueller and issue a new one narrowly tailored to specific CRIMINAL activities. Russian meddling is not a crime!