Hunter Biden Laptop Leaks– Are They Legal? With Judge Napolitano | OAP #80
Judge Andrew P. Napolitano is a graduate of Princeton University and the University of Notre Dame Law School. He is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995, when he presided over more than 150 jury trials and thousands of motions, sentencings, and hearings.
Judge Napolitano taught constitutional law and jurisprudence at Delaware Law School for one and half years and at Seton Hall Law School for 11 years, and at Brooklyn Law School for four years. He was often chosen by the students as their most outstanding professor. He returned to private practice in 1995, and began television work in the same year.
As Fox News’ Senior Judicial Analyst from 1997 to 2021, Judge Napolitano gave 14,500 broadcasts nationwide on the Fox News Channel and Fox Business Network. He is nationally known for watching and reporting on the government as it takes liberty and property.
Judge Napolitano lectures nationally on the U.S. Constitution, the rule of law, civil liberties in wartime, and human freedom. He has been published in The New York Times, The Wall Street Journal, The Los Angeles Times, and numerous other publications. His weekly newspaper column is seen by millions every week. The Judge is a nationally-recognized champion of personal freedom.
The Judge is the author of nine books on the U.S. Constitution, two of which have been New York Times Best Sellers. His most recent book, SUICIDE PACT: The Radical Expansion of Presidential Powers and the Assault on Civil Liberties, details a long, sordid history of governmental—and especially presidential—encroachments on liberty, enacted in the name of protecting America but which serve instead to undermine national security and erode the nation’s founding freedoms.
This is One American Podcast, and we are live with Judge Napolitano.
It is an honor and a pleasure to have you, even though you won't sell me any of your maple syrup.
Chase, it's a delight to be on with you.
I've admired your work for a long time.
That introductory video is challenging and enticing.
Thank you.
I appreciate that.
Kirstie, I will give you the maple syrup.
If I can find my way to Austin, beautiful Austin.
Yeah, come.
Come, bring your gun.
We'll go shooting.
It'll be fun.
Yes.
So I do want to start off by, I was thinking about what to talk to you about.
There's so many things.
You're an expert in the Constitution, very well renowned for your work and your career.
And I decided that I wanted to ask you one or two fun questions to begin.
Is that okay?
Sure.
Okay.
Have you seen the movie Titanic?
I have not.
You never saw the movie Titanic?
Wait a minute.
The one with Leonardo DiCaprio?
Yeah.
Yeah.
Yes.
Yes, I saw that and I saw the old one with Clifton Webb called A Night to Remember.
You're right.
Okay.
Okay.
So the Leonardo DiCaprio Titanic, was there or was there not enough room on the door for both of them to survive in the end?
Your expertise as a judge, right?
I'm afraid my expertise fails me.
Okay.
All right.
All right.
So the question remains unsettled.
It's a major controversy, but it's an honor and a pleasure to have you, like I mentioned, and so many things I want to talk to you about.
And one of the things I wanted to mention was specifically talk to you about the Hunter Biden laptop story.
And I know that you're not intimately familiar with all the details of that.
And there's still so much that's coming out.
But the reason that I wanted to bring it up with you is because I had Jack Maxey on the show last fall and he is in possession of the laptop.
He's in Switzerland right now.
And it's very complicated to release something like that to the public because of some of the content that may or may not be on it that is potentially illegal, some of the national security issues with that.
What does it look like hypothetically from a legal standpoint?
Like how does a citizen or a civilian legally leak information on a laptop that may compromise members of the White House?
Well, it depends how the citizen got the information.
I mean, if you're having a conversation with Joe Biden or Donald Trump or any American president and they blurt something out to you that's a national security secret, you are free to leak that, to release it, to go outside wherever you are when you're with them and announce it.
On the other hand, if you have a national security clearance yourself and the information was given to you directly, intentionally, or even inadvertently, it would be a felony for you to leak it.
Under First Amendment jurisprudence, particularly the Pentagon Papers case, if a national security secret is leaked to the press or any bona fide person in the media, and that would include you and me,
and anybody who's watching who publishes their ideas or has a podcast, the leaker can be prosecuted, but not the member of the press for revealing it.
So Daniel Ellsberg for revealing the Pentagon Papers was prosecuted.
The case was thrown out because the FBI, as you may recall, broke into his psychiatrist's office to get the psychiatrist notes so that the government could use it against him.
When the trial judge, a wonderful now in heaven, Timothy Sullivan, learned about this, he threw the case out.
So the thief can be prosecuted.
The member of the press to whom he gives it cannot.
So with that as a background, it's going to depend what is in there.
If there's national security information in there from the Obama White House, if the now president, then vice president of the United States leaked a national security secret to his son, and it's in the laptop.
These are hypotheticals.
I don't know that this happened.
Whoever lawfully has that laptop, unless they themselves are required by statute to maintain the secret, meaning they work for the federal government, they have a security clearance themselves.
They're free to leak it.
They're free to reveal it.
Okay.
So my understanding, and I don't know if I'm getting this right or not, my understanding of what happened is Hunter brought the laptop to a Mac repair shop and never came back to claim it.
I've worked for a business that owns stores like that.
Typically, there's like a six month or a 12-month hold clause in the paperwork where, hey, if you don't come by to pick it up within six months, it's ours, right?
So in the event that that's what happened, hypothetically, and the Mac store owner duplicated the hard drive after it became his intellectual property, according to whatever waiver that Hunter would have signed.
If he dropped it off, then it would be okay for that person to share that information.
Yes.
Yes.
Unless in the off chance that that person is a federal agent or a federal employee who's required by law to maintain these secrets, it's the same as if Hunter had whispered the secrets into your ear or if old Joe had whispered the secrets into your ear.
Listen, the president is the only person who can declassify this stuff.
If anybody else attempts to declassify it, let's say Joe Biden as vice president told a national security secret to his son.
He, just like Hillary Clinton probably did, violated federal statutes for which he could be indicted.
But the recipient of that information is not culpable or responsible for the secrecy of it.
Correct.
Okay, so what if the laptop contains illegal content, like illegal pornography, for example?
Then does it become hairy?
Because then all of a sudden you're in possession of it.
All right.
Ask me again.
What if the laptop?
What if the laptop contains like child pornography, hypothetically?
Not necessarily Hunter's laptop, but any laptop contains child pornography and you happen to like own it now because the owner didn't pick it up six months later.
Are you responsible for owning it or distributing it if you share it with others?
Well, if you share it, you have a very serious problem unless you share it with law enforcement.
The child pornography statutes or the statutes prohibiting possession of child pornography require the government to prove intent.
Otherwise, you could just send child pornography to your worst enemy and call the FBI and your worst enemy is going to jail.
So the government would have to show intent.
You can look at it to determine what it is, but then you ought to either destroy it or turn it over to law enforcement.
But if you share it with your spouse or your children or your next door neighbor or your brother-in-law, you have a problem.
Okay, that makes sense.
So that being said, on the Hunter Biden laptop stuff, obviously when these new articles have come out where the New York Times acknowledges that the laptop appears to be authentic, we see other outlets, including the Washington Post, even CNN, coming out and actually reporting on some of the alleged contents within it.
And I've seen this sort of backlash from the left on Twitter where everyone's like, what about Ginny Thomas's texts, right?
What's the deal with these accusations here?
I mean, have you seen that?
What a Hunter Biden's laptop has to do with Ginny Thomas's texts.
It's almost like an Abbott and Costello routine.
I know.
So Ginny Thomas's texts are absolutely legally protected.
They are a communication from her to Mark Meadows alone.
I know I've read the texts, or at least the ones that are in the public domain.
Even if she shouted those texts from a rooftop with a bullhorn, that is not the type of speech for which anyone can be prosecuted.
The law on incendiary speech is from a case called Brandenburg versus Ohio in 1969, a unanimous Supreme Court opinion, which says all innocuous speech is absolutely protected.
And all speech is innocuous when there is time for more speech to neutralize it.
So if Donald Trump said to the crowd on January 6th, let's go invade the Capitol, capture Mike Pence, kidnap Mrs. Pelosi, and prevent the Congress from ratifying the election of Joe Biden.
Didn't happen, but if he did, and there was time for more speech to neutralize what he said, his speech is protected.
Now back to Ginny Thomas.
Her speech is not public.
Her speech is private.
It's like you and me having a phone call.
This is not private because there are hundreds of thousands of people watching and listening to us at the moment.
So she says to Mark Meadows, whatever she wants.
Joe Biden stole the election.
Take care of it.
Donald Trump should be the real president January 21st.
Make it happen.
Mike Pence is not our guy.
See what you can do about it.
Whatever she wants to say to him.
It's a private conversation.
It's protected.
Does the revelation of those conversations incapacitate her husband from hearing cases on January 6th on the Supreme Court?
Absolutely not.
The canons of judicial ethics, which apply to every judge in the country, require that if the judge has an interest in the outcome, a financial interest in the outcome, that she or he must recuse her or himself from the case.
And there's a mechanism for compelling that recusal for every judge in the country, except for the nine justices of the Supreme Court.
There is no mechanism to compel them to recuse.
The other eight cannot say, Clarence, you got to get off this case because you're ruining our reputation.
They absolutely can't do it.
It's entirely up to him in his heart and in his head.
If he feels he cannot be fair in whatever January 6th case comes, involves Roger Stone or Steve Banner or the former president himself.
If he feels he cannot be fair because he's been listening to his wife about this for months and months and months, he ought to exercise his judgment to recuse himself.
But short of that, he should stay on.
Why?
Because the canons of ethics do not reach pillow talk.
There's a one-liner for you.
The canons of judicial ethics do not reach pillow talk.
Promo code pozo at mypillow.com, by the way.
Promo code pozo at mypillow.com.
Where's Mike Lindell when we need him?
If I just gave him a shout out, you're going to have to charge him and pay me for that.
I'll son of an invoice.
All right.
If they want to go there, if Chuck Schumer has called for the recusal of Justice Thomas or AOC, who's called for his impeachment, of course, is ridiculous.
If they want to go there, then they're going to be inquiring into the pillow talk of all eight justices.
There is no basis for that.
The separation of powers would prevent it from happening, and it would reduce the concept of recusal to a level of absurdity.
Have there been historical instances of Supreme Court recusals?
Yes, there are Supreme Court recusals all the time.
I mean, John Roberts, the Chief Justice, was a judge of the United States Court of Appeals for the District of Columbia Circuit, same court on which Justice Scalia sat, Justice Kavanaugh sat, Judge Jackson is there now.
It's a stepping stone for many to the Supreme Court of the United States.
He ruled in favor of the Bush administration in a very famous case involving whether detainees at Guantanamo Bay have the right to habeas corpus.
That case was appealed to the Supreme Court.
By the time it got to the Supreme Court, he was the chief justice.
So how can he sit in judgment of an appeal of his own decision?
He recused himself.
Nobody forced him to.
He didn't make a big deal.
He didn't make an announcement.
He didn't say why.
He just said, I'm not on this case, which is exactly the right thing to do.
You do it quietly, modestly, silently.
Often it's not even noticed.
It's just a one-liner at the end of the opinion.
The chief justice took no part in this decision.
Judge Kavanaugh took no part in this decision.
That's the way to do it.
In a trial court where I sat, where you generally know the lawyers, if one of the lawyers finds out that you are friends with the other lawyer, you were at a bar together and you were having a couple of drinks, they'll try and get you off the case.
So these things happen far more frequently at the trial level, where everybody knows everybody because you all work on the same courthouse than they do at the Supreme Court level, where they rarely see the same lawyers twice in their entire judicial tenure.
Okay.
So this Ginny Thomas controversy, for lack of a better term, has nothing whatsoever to do with Hunter Biden's laptop.
Which has nothing to do with Hunter Biden's laptop.
Goes in conjunction with the eight-hour gap, right?
So my understanding, correct me if I'm wrong, my understanding is that there's supposedly an eight-hour gap in the president's phone calls or call records on the date of January 6th, and people are saying that he must have been coordinating some sort of insurrection behavior during those eight hours.
So here's the law on that.
If the president discussed national security secrets or anything classified on those phones and the phones still contain that information, meaning they were not true burner phones, he thought they were burner phones.
He's committed a felony by putting or causing to be put or leaving classified material in a non-classified place.
However, if they were true burner phones, meaning when you finish using them, they're useless.
You can't get any information out of them.
Or if whatever he discussed in that seven and a half or eight hours was not national security classified, he's free to use whatever phone he wants.
And this is not analogous to Mrs. Clinton.
Mrs. Clinton's problem was that she took classified materials and put them in a non-classified venue, the server in the closet of her home in Chappaqua, New York.
That's the felony for which, of course, she was never indicted.
It's really not analogous to the Trump situation unless these were not burner phones and the classified material is still there and someone has them.
Interesting.
So it's so funny, you know, the reporting came out the other day that finally the DNC and Hillary Clinton were fined regarding the Russian dossier that they lied about or that they lied about funding, right?
Look at the terms.
It's interesting to see if she just pays that fine or challenges it.
She'd be insane to challenge it.
Well, they only fined her eight grand.
There'll be a public hearing about what she knew and when she knew it.
Exactly.
Yeah.
But it's only eight grand too.
The DNC was fined over $100,000, but Hillary Clinton's personality.
The numbers are small because they're infinitesimal percentage of the campaign's budget.
I mean, you know, we're not talking about somebody who robbed a bank.
You want to find them three times what they stole.
I don't know how they came up with the eight grand.
It is a shockingly low number.
It would cost her more than that.
It costs the DNC more than that to hire a lawyer to challenge it.
Right.
Right.
So you might as well pay it.
But it's, I, are we ever going to get to a place where our politicians actually advocate for more burdensome penalties for campaign finance violations?
Because they were like kind of this conflict of interest, right?
You know, I have argued, you may have heard me say this.
We don't have two parties in America.
We have one party, the big government party.
It has a Republican wing, which likes war and deficits and corporate welfare.
It has a Democrat wing, which likes war and taxes and individual welfare.
And they both do everything they can to stay in power.
That's the one thing they agree on.
Now, you can state it differently.
Thomas or Alexander Hamilton and Thomas Jefferson agreed on nothing except this.
When the public treasury becomes a public trough and the public learns this, they will only send people to Washington who bring home, who will promise to bring home the biggest piece of the pie, no matter which party they're in.
That's where we are today, Chase.
We've actually been there since Woodrow Wilson, heightened by FDR, but now that's where we are.
And now earmarks are back.
So members of Congress can, you know, send $100 million to the University of Alabama, just picking on Alabama for the Richard Shelby Engineering Center.
Yeah, because he's a senator from Alabama who controls where that money goes.
Not picking on him.
He's a great guy.
I don't even know if this happened, but that's where earmarks are.
I'm going to give you an example of what could happen.
So let me ask you this.
Obviously, 2022 is going to be a major election.
Every election is super important.
And everyone always says this election is going to be the most important election in the history.
We always say that, but it really feels that way, that it's at least going to be a very important one, right?
In 2022, and of course, in 2024, one of the major concerns that I have, especially as a podcaster, is the censorship that we're seeing and have been seeing on big tech, right?
And it started five or six years ago with Alex Jones and everyone said, okay, it's going to end there.
They're just going to censor him because he's so crazy and out there.
And that was where it was supposed to end.
And then all of a sudden, you know, it got up to the president.
And now we see accounts like me, you know, small influencers, even regular folks just getting censored all the time, deplatformed from Twitter, censored from YouTube.
In terms of First Amendment, is there any feasible, reasonable application for First Amendment protections on these platforms?
All right.
So there's two ways to look at this with respect to the First Amendment.
The first is the truism that the First Amendment only restrains the government, even though it says Congress shall make no law abridging the freedom of speech or of the press.
The Supreme Court has interpreted the 14th Amendment as applying the First Amendment to the states.
And it's not just the states, it's the subdivisions within the state, the city of Austin, whatever county the city of Austin is in, the state of Texas, the same for every for every state in the union.
So theoretically, Facebook is a bulletin board.
It's a private bulletin board.
It's not owned by the government.
Therefore, it can decide whatever it wants to post there.
Theoretically, the remedy for Facebook crushing the free speech rights of people, libertarians and conservatives and Republicans, is for somebody like Elon Musk or Charles Koch, who has that kind of money available, liquid, to start another bulletin board.
On the other hand, if it turns out that Facebook, and I don't mean to be picking on them, but any big tech, Amazon, Google, whatever, is doing the government's business or bidding or is doing this to please certain government actors, then there's a principle of law called state action.
And state action is what happens when the government and a private entity are so intertwined that they're in a symbiotic relationship, that they make decisions to help each other, so much so that you can't even tell who made the decision.
If someone were able to prove that, then the First Amendment could be applied to Facebook and Google and TikTok and whoever's doing the suppression.
It's a tough case to show.
It is rarely shown.
I mean, a classic case is somebody who's in Yankee Stadium and wants to buy a hot dog and the vendor of the hot dog utters either a racial or a gender-based or an LGBTQ based epithet.
Now, the stadium's owned by the city.
City is subject to the First Amendment.
So is the vendor an employee of the Yankees, in which case he can say whatever the heck he wants, may violate Yankee regulations, doesn't violate the law, or does the vendor have the same First Amendment imposition imposed upon him because he's on city property?
It's probably the latter.
But the Facebook case showing that they're doing the bidding of the Democrats, for example, would be a tough case to prove, though there is some evidence of that.
Yeah.
And certain senators, Richard Blumenthal of Connecticut comes to mind, has called for certain suppressions, and then they magically happened.
Well, the big thing that I think of is, of course, after Trump won in 2016, there were all these accusations of Russian collusion.
And the big controversy was the Cambridge Analytica scandal, right?
It was this argument that Facebook leaked information to Cambridge Analytica, which leaked information to Russian actors who then used that data in order to do targeted advertising campaigns on behalf of President Trump.
That was the conspiracy theory, which is exactly what it was.
And as soon as that happened, that conspiracy theory became promoted in the media, we had Zuckerberg for seven hours on Congress being very intentionally coached and polite to the Senate.
Like he was so careful not to offend any of the senators.
And you could tell that it was like, hey, we do not want to piss off the Senate.
I thought he was brilliant, but I also thought he should have thumbed his nose to the government.
I'm running a private business.
The heck with you.
Now, that never happens.
Everybody that goes there kisses their butts to answer their questions.
And while they have a legal right to ask their questions, they don't have a moral or a constitutional right to compel you to speak because the same First Amendment, which prohibits the Congress from infringing upon speech, prohibits the Congress from compelling speech.
Now, he probably did the right thing.
He was a perfect gentleman.
If he was angry, you never saw it.
I'm sure he converted some people from being anti-Facebook on the Senate committee to being pro-Facebook by the time he left.
But for the most part, it's none of their business.
I remember, this is a Texas observation because he's from Texas.
I remember the great Harlem Congressman Charlie Wrangell grilling the lawyer for Roger Clements, great pitcher for the Houston Astros and for the New York Yankees about whether or not he was taking performance enhancing drugs.
And I got so angry.
I'm commenting about this on Fox.
I looked at the camera and said, if I were that lawyer, I would say, hey, Congressman Wrangel, you write the laws of the land.
My guy plays a child's game called baseball, and you're concerned about the contents of his urine?
What's in your urine?
That's the way I would have responded.
Now, that's not going to make you friends with the members of the committee.
It may make you friends with the political, in this case, the sports world base, but they think they can drag.
Now, this is a libertarian land where I live.
They think they can drag any private person before them and compel that person to justify their behavior.
They can go take a hike.
Well, with that, I want to thank you for coming on the show and ask you to share where the audience can find you.
Where are you trying to, what platforms are you pushing?
Where are you?
What's up next for you?
Oh, well, if they go to judgenap.com, they'll get everything I've written for God knows how many years.
And if they go to judging freedom podcast on YouTube, they'll catch me doing this right from this desk in this library about three or four times a day.
I do long form interviews like I'm doing with you.
In fact, I'd love to have you on.
My producer will find you.
And I do very short pop-ups.
So as soon as the Supreme Court comes out with something, I'm in front of this camera where I am now, before my former colleagues at Fox are in front of their cameras.
And I explain it so that everybody can understand it.
That's great.
Well, thank you so much for coming on the show.
It was an honor and a pleasure to have you.
Let me know if there's ever anything you need from me.
