Impeachment

Agree or Disagree With Him, We Need People Like Judge Napolitano

The Fox News legal analyst is driven by principle, not power. That's a rare commodity in today's environment.

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Napolitano_Impeachment | Jim Epstein
(Jim Epstein)

Let us now praise Judge Andrew Napolitano, the Fox News senior legal analyst who is currently trending on Twitter because he thinks the Senate should remove Donald Trump from office. I don't agree with him on that—or his views on abortion (he's against), Abraham Lincoln (also against), and a number of other things (including his flirtation with 9/11 conspiracy theories)—but goddammit, we need more people in the public arena who stick to their principles even in the face of constant criticism and vicious personal attacks. One of the main problems in contemporary politics is precisely that people on all points of the spectrum routinely defer to power and popularity on matters of conscience. Not so the judge.

"What is required for removal of the president?" asks Napolitano in his latest column published at Fox News (of all places). "A demonstration of presidential commission of high crimes and misdemeanors, of which in Trump's case the evidence is ample and uncontradicted." This isn't a popular view among Fox News viewers and the broadly defined right wing. But the judge is less interested in what's popular than in what he thinks is right. His personal hero is Thomas More, the chancellor to Henry VIII who refused to sanction the king's marriage to Anne Boleyn and was subsequently executed and, later, made a Catholic saint. Napolitano dedicated his 2005 book Constitutional Chaos to More, telling Reason in an interview:

I dedicate the book to St. Thomas More and cite the most frequently quoted passage from A Man for All Seasons [in which More says he would extend due process even to the devil]. More is basically saying everyone is to due process, rights are not discretionary; and his son-in-law challenges him, saying, what about the rights of the devil? And More says, I would give the devil his due because when they come after me, I want them to give me my due. Every human is entitled to the protection of the law.

In a nutshell, Napolitano's argument for removing Trump from office is the obverse of what More is discussing in the passage above. The president, says the judge, is acting like Henry VIII and refusing to abide by the limits of his office; if we let that stand, then there will be no grounds upon which to limit future presidents. In an interview with Reason last November, the judge predicted correctly that House Democrats would charge the president with abuse of power and obstructing Congress' investigation. He also stated that impeachment was "absolutely constitutional" but "probably morally unjust," partly because Trump was merely the latest in a line of chief executives since Woodrow Wilson who flout constitutional limits to power. "No American president in the post–Woodrow Wilson era has stayed within the confines of the Constitution," said Napolitano.

His latest column has made him a "new impeachment hero" among Democrats, writes The Washington Post and no less than the queen of "the Resistance," Speaker Nancy Pelosi, has tweeted him out approvingly:

But it's not simply partisan Democrats and #NeverTrumpers who support the judge. The highly principled Rep. Justin Amash (I–Mich.), who left the Republican Party because he felt it was no longer even paying lip service to the ideals of limited government, writes: "My friend @Judgenap has remained true to his principle."

Like Napolitano, Amash has taken an enormous amount of abuse for remaining true to what he believes, and he might well lose his seat in Congress as a result. (He has already lost backing of groups supposedly devoted to small government.) Indeed, the president denounced Amash "as a total loser" and "one of the dumbest & most disloyal" members of Congress. (Amash explained his reasons for leaving—and why he thinks he will now be more effective in reducing government—to Reason last summer. Watch that here.)

We live in a hyper-partisan, hyper-polarized era; with impeachment, the stakes (and passions) are especially high. But even—perhaps especially—those of us who think Andrew Napolitano and Justin Amash are wrong in this particular instance should salute them for standing true to their principles. They have nothing to gain from their courage other than the satisfaction of speaking truth as they see it. I don't believe they are looking to be heroes or martyrs, and they are certainly not seeking and will not get invitations to all those vaunted Establishment cocktail parties you always hear about on Twitter. In fact, they may well each lose their jobs.

Judge Napolitano, who relentlessly attacked George W. Bush and Barack Obama when they contravened the Constitution, is now doing exactly the same thing when it comes to the current occupant of the White House. As Thomas More explains in the judge's favorite play, A Man for All Seasons, principles must trump personal and partisan allegiances when it comes to such serious matters as rights and the rule of law:

And when the last law was down, and the Devil turned around on you—where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast—man's laws, not God's—and if you cut them down…d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

I think you're wrong here, Judge, but long may you run. We need more people like you, now more than ever.