March 27, 2022 - Rubin Report - Dave Rubin
47:04
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| Speaker | Time | Text |
|---|---|---|
| They value safety and, Dave, the illusion of safety more than they value personal liberty. | ||
| And that's why they went along with it. | ||
| I have very, very many intelligent friends who just couldn't wait to put that mask on. | ||
| I'm Dave Rubin and joining me today is a former New Jersey Superior Court judge | ||
| and host of the Judging Freedom podcast, Judge Andrew Napolitano. | ||
| Welcome to the Rubin Report. | ||
| A pleasure to be on with you, Dave. | ||
| Thank you for having me. | ||
| I'm glad to have you. | ||
| Before we dive into the issues of the day, and there's a lot of stuff sort of culturally, politically, but especially legally that I want to talk to you about, there's a rumor that you might be up on a farm somewhere in the middle of nowhere, and I find that to be interesting considering most people picture you with a suit, slicked back hair, some makeup, but you like living on a farm, huh? | ||
| Well, for 24 years, I was very happy at Fox News. | ||
| They put me in front of a camera. | ||
| You ready for this? | ||
| 14,500 times. | ||
|
unidentified
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Woo! | |
| And they have the clothes police there. | ||
| Really wonderful people, but make sure you are dressed properly and the makeup was right and your hair was right since COVID. | ||
| And then after I left Fox, I've been doing everything from my farm, which is at the north where I am now. | ||
| Which is at the northwest tip of New Jersey, where New York, New Jersey, and Pennsylvania meet. | ||
| We average about 15 degrees colder than New York City, so I've left here in a blizzard and got to Manhattan and it's just rain. | ||
| We're about 1,800 feet above sea level. | ||
| And what are you doing up on a farm? | ||
| I mean, are you out there? | ||
| Are you, you know, pulling up vegetables? | ||
| Well... What are you doing? | ||
| I signed the checks. | ||
| The wonderful guys that work for me get dirty fingernails. | ||
| We just finished making maple syrup. | ||
| We have an apple orchard and a pear orchard, and we grow about 500 pounds of garlic, and we grow a lot of green vegetables. | ||
| Our clients are hotels and restaurants in the area. | ||
| It's a lot of fun. | ||
| Giving me an appreciation for the environment that I never had before I had this property. | ||
| Yeah, very cool. | ||
| I just thought it was worth mentioning up top because I think when people see people, especially on cable news, there's something about seeing the person in the box where you don't realize that they're actually a person too, that they just appear to be this head floating with a fancy background. | ||
| Well, like you, I am very much a person. | ||
| You are very much a person. | ||
| All right. | ||
| Well, let's do a little bit of the, of the person. | ||
| Uh, so former superior court judge in Jersey. | ||
| Um, what, what got you interested in the law in the first place? | ||
| How does someone end up as a judge? | ||
| People think of law, you're going to become a lawyer. | ||
| How'd you end up as a judge in the first place? | ||
| I ended up as a lawyer because, uh, at dinner table conversations, I always took the side of the underdog much to my, Parents' dismay. | ||
| I loved debating in high school and even in college, so I went to Princeton. | ||
| One of my classmates, Sam Alito, one of my boyhood friends, is now on the Supreme Court of the United States. | ||
| New Jersey's system is a little different than other states. | ||
| You practice law for 10 years and then after that are eligible to be appointed. | ||
| I was the youngest person appointed in the history of the state. | ||
| I was actually appointed Before I had completed that 10-year mark, but I didn't take office until after I completed. | ||
| Appointed by the Governor, confirmed by the State Senate for seven years. | ||
| If reappointed and reconfirmed before the end of seven, you have it for life. | ||
| So I was appointed by a wonderful, moderate Republican, Governor Tom Kaine. | ||
| And then seven years later, received my lifetime appointment by another wonderful, moderate Republican, Governor Christine Todd Whitman. | ||
| At the trial level, where I was, where there are 400 judges in the state, there are roughly 200 Republicans and 200 Democrats, so it's not political because it's not a policy-making court. | ||
| You're trying cases, you're deciding who you believe, you're not making decisions like the Supreme Court of the United States does. | ||
| How did you make sure that your politics didn't leak into it? | ||
| I mean, I have a sense from watching you over the years of what your politics are, but I know you try to be as, on your show, you try to be as nonpartisan as possible, but obviously people have their own biases, have their own ways of looking at the world. | ||
| How did you do it? | ||
| And do you think, do you think that enough judges are doing it these days? | ||
| Because it does seem these days that courts seem to be slanted one way or another. | ||
| Well, I, like you, believe that our rights are natural and come from our humanity. | ||
| Whether you believe in God, as I do, and that it's a gift from God, or whether you believe we have developed these rights by our own exercise of reason. | ||
| They don't come from the government. | ||
| They're not privileges. | ||
| They're not licenses. | ||
| They're rights. | ||
| They're claims. | ||
| And therefore, I believe that the Constitution literally means what it says. | ||
| If the government wants to take life, liberty, or property, it has to follow due process. | ||
| Does that seep into the judicial process? | ||
| Yes, it does. | ||
| the government proves fault. It doesn't mean an edict. Thou shalt wear a mask. Thou shalt | ||
| take a vaccine. Thou shalt not stand closer than six feet from the next person. Thou shalt | ||
| not open your restaurant business. All of those, in my view, are unconstitutional, unlawful, | ||
| and immoral because they violate your natural rights. Does that seep into the judicial process? | ||
| Yes, it does. Before a criminal trial, the government must demonstrate to the court how | ||
| it acquired the evidence in the case because the Supreme Court of the United States and | ||
| the Supreme Court of New Jersey have both ruled if the evidence was obtained unlawfully, | ||
| that is if the police broke the law when they're ostensibly enforcing the law, then the evidence | ||
| can't be introduced at trial. | ||
| If you are a natural law libertarian, as I am, you tend to follow that to a T. Translated? | ||
| I probably suppressed more evidence than all the other judges in the courthouse combined. | ||
| So I was not the prosecutor's favorite, except on sentencings. | ||
| Then they loved me because there's a wing of the New Jersey State Prison with my name on it because I'd sent so many bad, violent people there. | ||
| Not people who committed harmless crimes, but people who committed real crimes. | ||
| So yes, it's more a philosophy than a politics. | ||
| That filters into the judging process. | ||
| Having said that, much of it is mechanical. | ||
| You're trying a case. | ||
| You want to make sure the jury understands. | ||
| You want to make sure both sides get a fair shake. | ||
| Even in sentencing, you know, I'm talking about Jussie Smollett three or four times this week. | ||
| Had an unusual twist the other day when the appellate court let him out for the reason for which they let him out. | ||
| But when judges sentence Dave, they have a checklist. | ||
| 25 aggravating factors, 25 mitigating factors. | ||
| So you're not shooting from your hip. | ||
| You're deciding, do the aggravating factors outweigh the mitigating factors? | ||
| Is this a human being who really is a danger to society and needs to be locked up? | ||
| Or is this somebody who just got carried away, got involved in something and it got out of control and he didn't have the courage to admit that it was wrong? | ||
| You have to make those Objective and subjective judgments before you take someone's freedom away. | ||
| So I want to get more to Smollett in just a minute, but I find that really interesting about, so you really tried to keep the law of the letter regarding policing, and if they broke the law, okay, the evidence can't be submitted. | ||
| Were there times, I'm sure there were, that you saw something that was so damning, so incriminating, and you're going, man, if I don't let this be submitted, there's a really bad dude who's about to walk, and yet you'd still have to do it? | ||
| Yes, you do. | ||
| And you know, I've talked to police about this. | ||
| Police who have beaten confessions out of people or cracked a taillight after they stopped the car because they got a tip that drugs were in the trunk and they needed a lawful basis for smashing the taillight. | ||
| I said to one of them, I said, you know, you and I grew up in the same neighborhood. | ||
| I didn't come down with yesterday's rain. | ||
| You know, I was going to see through this. | ||
| And he said, Yes, here's how we look at it. | ||
| We got this stuff off the street. | ||
| We know a guilty guy went free and he's probably going to do it again and we'll get him the next time and the next time we'll follow the law. | ||
| But we just took 10 pounds of cocaine off the street. | ||
| Our problem was that we got assigned to you because you're the only judge in the courthouse that would have caught us for doing this. | ||
| So, you know, there are factors to weigh, but my oath is to the Constitution when I was on the bench. | ||
| It's not to the government. | ||
| It's not to the prosecutors. | ||
| It's not to the police. | ||
| It's to the Constitution. | ||
| It's the Constitution that mandates that illegally obtained evidence can't be used in a trial in America. | ||
| If it could, there would be no trials. | ||
| Everybody would plead guilty because the police would beat the crap out of everybody. | ||
| So I want to get to the issues of the day and we'll talk about Smollett and the Supreme Court justice nominee and all that stuff. | ||
| But so what possessed you to go from the court, which you obviously loved, it's very obvious hearing you talk about it, to saying, hey, I'll do this on television, which is a whole other game. | ||
| Well, I'm a little embarrassed to tell you, except it's public knowledge, because I said it at the time. | ||
| I was tired of being poor. | ||
| So judges at the time made $100,000 a year with zero outside income. | ||
| In addition to being a judge, I was a full-time law professor, but teaching just at night, so it didn't interfere with my judicial duties. | ||
| I was also lecturing around the country about the types of things that we're talking about, human liberty and natural rights. | ||
| And one day, one of my clerks, a very bright person, said to me, do you know if you could charge the fair market value for this stuff you do at night? | ||
| It will be two and a half times what the state is paying you for what you do during the day. | ||
| That was it. | ||
| I didn't leave the bench to go on television. | ||
| I left the bench to go back into the pits and try cases. | ||
| Eight or nine years before, I had met Roger Ailes at the Kansas City Republican National Convention in 1976. | ||
| Ronald Reagan versus Gerald Ford. | ||
| Roger was the chief strategist for one of the two camps. | ||
| I'll let you guess which camp it was. | ||
| Almost everybody says Reagan. | ||
| He was on Ford's side. | ||
| Well, that's why I paused because I thought you were setting me up for a trap there. | ||
| Right. | ||
| Ford was the president of the United States. | ||
| Anyway, that's where I met Roger Ailes. | ||
| I left the bench. | ||
| The statement about being poor had such legs. | ||
| It was all over the place. | ||
| Life tenure judge leaves because of You know, poor salaries and you can't earn outside income and people dumped on me. | ||
| What do you mean $100,000 is poor? | ||
| That's more than 90% of the country makes blah, blah, blah, blah, blah. | ||
| Roger Ailes read about it. | ||
| OJ Simpson had just been indicted. | ||
| Ailes was then the president of CNBC. | ||
| He said, we're going to cover this and I'm going to put my own ex-judge on air to second guess this crazy loopy Judge Ito. | ||
| So for five days a week, With my future colleague at Fox, John Gibson, we covered OJ. | ||
| John in the courtroom and interviewing people outside the courthouse and me providing analysis for CNBC at their offices in Englewood Cliffs, New Jersey. | ||
| Then Microsoft and NBC formed MSNBC. | ||
| Roger did not get the presidency of it, probably the worst mistake NBC ever made. | ||
| He left, formed Fox, I brought those of us who had worked for him at CNBC over to Fox, basically said, I don't know where it's going to go. | ||
| It's a gamble. | ||
| We could all be bankrupt in a week. | ||
| Now that was 25, 26 years ago. | ||
| And did you feel covering from OJ to all the stuff that you were covering on Fox for, you know, 15, 20 years, actually more, did you feel that there is a risk in doing some of that day-to-day on cable news that you have to be more sensational or that you maybe aren't privy to all the information that's going on in the courtroom or you gotta keep people watching and know, you know, one of the things that I find tough when you follow court cases these days, the way everyone seems to do on cable news, We're suddenly privy to all of this information that maybe we all shouldn't be privy to all the time, or at least the public shouldn't care about every little in and out of every little thing. | ||
| How do you try to blend that? | ||
| I agree with you that the public shouldn't care about every little in and out and every little thing, but in this era of cable news, we do. | ||
| I don't know how the founding fathers would have fared if cable news had been around at the time. | ||
| Not well, not well. | ||
| You know, Fox had and has terrific researchers. | ||
| They also allowed me to hire my own researcher, a lawyer, and between Fox's researchers, known affectionately as the Brain Room, and my researcher, I was able to devour what I needed to know. | ||
| Occasionally you make a mistake. | ||
| Sometimes a mistake leads to a lawsuit. | ||
| But remember, you're explaining things for the public. | ||
| You're not making an argument before the Supreme Court, so you don't You don't need to know everything. | ||
| The key is to explain it so that the public understands it, appreciates the explanation, and wants more of it. | ||
| OK, so with that in mind, let's switch to some of the issues of the day. | ||
| So you brought up the Jesse Smollett thing, which we covered a whole bunch over the last few weeks. | ||
| So he gets sentenced. | ||
| There's really no one other than him, I suppose, and his lawyer who's claiming that he's still innocent. | ||
| I mean, it's it's sort of bananas. | ||
| And everyone saw the diatribe at the end during the sentencing. | ||
| He gets the 150 days in jail and a couple other things. | ||
| But basically, he's going to serve a week in jail and that's it. | ||
| They're going to let him out. | ||
| What do you make of The sentencing, then the shortening of the sentencing, and just the media part of this. | ||
| And how do you think the judge had to deal with the media portion of it? | ||
| Okay, the media is not easy to deal with. | ||
| In the era that I was on the bench, Dave, cameras were not permitted in courtrooms. | ||
| And in the few courtrooms in which they were permitted, the judge had an absolute right to exclude them. | ||
| Today, you can't exclude them. | ||
| In federal court, they're not permitted, but in state courts, They're there all the time. | ||
| They're tiny. | ||
| They don't make any noise after a while. | ||
| You forget that they're there, but they are there, which is why we all know more detail than we need to know. | ||
| I thought his sentencing was fair. | ||
| Normally, lying to the police does not implicate jail time. | ||
| I have a problem with punishing people for lying to the police or lying to the FBI because the law allows the FBI and the police to lie to you. | ||
| So if they can lie, do you remember the Martha Stewart case? | ||
| They lied to her in the same conversation in which she lied to them. | ||
| The FBI agent who lied to her got a promotion. | ||
| She went to jail for six months for lying to them. | ||
| So I have a problem. | ||
| Quick sidebar on that. | ||
| I was a PA on Martha Stewart's talk show when she came back after jail time and she still had the monitor on her foot when she was doing the show. | ||
| When she came to Fox, she asked for me and hugged and kissed me. | ||
| We are from two towns next to each other, Bloomfield, New Jersey, and Nutley, New Jersey. | ||
| Bloomfield, very Italian at the time, Nutley, very Polish. | ||
| Her name is no more Stewart than mine is Smith, but she promoted that very well. | ||
| Now back to Jesse. | ||
| Because the lies were regular, consistent, systematic, and because the government wasted $125,000 to $150,000 investigating the lies. | ||
| I believe that the jail sentence of 150 days and the restitution to the government was appropriate. | ||
| Now, his sentence was not shortened. | ||
| He was let off on appeal. | ||
| It's an interesting reason why he was let off on appeal, because if he started serving the 150 days immediately, he would be finished with it before the appeal would ever even be heard, because it takes a year or two for the appellate courts To hear your appeal because the appeals get online on the basis of when they were filed. | ||
| So he's still facing 150 days in jail unless the appellate court decides either that he was wrongfully convicted or that he was over-punished. | ||
| I don't think either is the case. | ||
| Right. | ||
| In a situation like that, so when they finally get to it, do they usually just say, ah, we're sort of past this thing and just let them go at this point? | ||
| Well, no, because the prosecutors will be pounding the table. | ||
| The appellate court would have to find that the trial was unfair, that the trial judge made mistakes of such a magnitude that he was not proven guilty, or that the sentence was unfair. | ||
| The sentence was not unfair. | ||
| It was well within the range that the statute allows. | ||
| So his only hope is to find that because the first prosecutor said, I'm not going to prosecute you, They shouldn't have assigned it to a second prosecutor. | ||
| That's his only hope on appeal, that once a prosecutor said, we're not prosecuting you, that that was it. | ||
| Most states, once a prosecutor says, we're not going to prosecute you, they don't send it to another prosecutor. | ||
| They did it because Jesse became very, very unpopular in the Chicago community. | ||
| Now, you shouldn't be prosecuted just because you're unpopular. | ||
| You should be prosecuted If there's enough evidence to convict and if your behavior has caused harm. | ||
| Where does that... | ||
| That if your behavior has caused harm, where does that go when it comes to the prosecuting? | ||
| Meaning that in terms of the actual crime he committed, you know, to set up this hoax, there's not a lot of damage done. | ||
| But I think you could argue that there was a tremendous amount of damage done to society, to the city of Chicago, but the whole country in terms of this culture war that we're fighting. | ||
| How often do you think judges are affected by that? | ||
| That there's a much bigger fight at play than the specifics of, oh, OK, he paid these two guys. | ||
| He made up this thing that we could kind of look past. | ||
| But it's really that you could argue that then there were more riots because of this or just the general flame of the culture war continues because of something like this. | ||
| So that cannot be taken into account at the time of sentencing. | ||
| But here's something that can be that I think will interest you and the folks listening to us now. | ||
| When I told you there's a checklist, 25 aggravating and 25 mitigating factors. | ||
| One of the aggravating factors is the defendant committed this crime as a cost of doing business. | ||
| Now that was put in there because of mafia guys who committed crimes as a cost of doing business. | ||
| And the judge, in my opinion, quite properly did check that box. | ||
| Just see, concocted this whole thing. | ||
| As a cost of doing business. | ||
| Now, he and I ultimately have the same bosses because we both work for Fox. | ||
| I mean, he's crazy to think that he's going to get a leg up at Fox by concocting this nonsense. | ||
| Maybe at another network, but not at Fox. | ||
| They'd be sorry that it happened, but that's not going to, uh, not going to help, uh, the careers. | ||
| But, but back to your question, the only harm was to the government. | ||
| The only harm traceable to his behavior. | ||
| was $150,000 in police overtime investigating an event that never occurred. | ||
| Now, he was charged with six lies because they interrogated him six times, and each time he gave them the same nonsensical story. | ||
| He was convicted of five. | ||
| We won't know why without asking the jurors. | ||
| The sixth one did not result in a conviction. | ||
| Each of those could have been three years in jail. | ||
| He ended up with 150 days. | ||
| All right, so let's shift to a couple of the other things going on right now. | ||
| So, obviously, Joe Biden has selected Ketanji Brown-Jackson to be his nominee for the Supreme Court. | ||
| I have no doubt that this, once the hearings begin, will be as chaotic as ever. | ||
| Maybe not quite as chaotic as Brett Kavanaugh, because she's kind of on the side of the media. | ||
| But, you know, the usual stuff is going to happen. | ||
| I guess, A, what would your general qualifications be? | ||
| I think I have a sense of that already. | ||
| And B, how do we pilfer some truth out of this, knowing that the media is not going to cover it the way it would if, say, she was nominated by Donald Trump or a Republican president? | ||
| I start with the premise that under the Constitution, the president gets to nominate whoever he wants. | ||
| And believe it or not, Dave, neither the Constitution nor federal law require that a Supreme Court justice even be a lawyer, much less held prior judicial experience. | ||
| The last justice who didn't even graduate from law school was Justice Robert Jackson, who had been the Attorney General of the United States under FDR. | ||
| And he's one of the most quotable justices in the modern era, never graduated from law school. | ||
| Today, of course, the Senate would not confirm anyone who didn't graduate from law school. | ||
| The Senate and the presidents seem to prefer people who have judicial experience. | ||
| That's not required at all. | ||
| Chief Justice Earl Warren had no judicial experience and probably affected jurisprudence in this country more than anybody. | ||
| Chief Justice John Marshall, the great Chief Justice from the Thomas Jefferson to the Andrew Jackson years, he had no judicial experience. | ||
| And because Joe Biden nominated her, she's a liberal Democrat. | ||
| That's to be expected. | ||
| Donald Trump, I'm very familiar with his nomination process. | ||
| I was intimately involved the first time around. | ||
| Donald Trump, in my opinion, nominated two conservatives and one libertarian. | ||
| Libertarian is Neil Gorsuch. | ||
| The conservatives are Amy Coney Barrett, who's a graduate of the same law school as I am, University of Notre Dame. | ||
| Uh, and, uh, and Brett Kavanaugh. | ||
| That's the president's, uh, prerogative. | ||
| I don't agree with Senator Lindsey Graham on many things, but I agree with him on this. | ||
| The president nominated the person and he or she is basically qualified. | ||
| I'm going to vote for them. | ||
| I think that's what the outcome will be with judge Ketanji Brown Jackson. | ||
| However, there are a conservative Republicans on the judiciary committee and I know them both. | ||
| Well, Ted Cruz has been a friend of mine for years. | ||
| Josh Hawley, we have met through the monitor, like you and I are meeting now. | ||
| They're going to go for her jugular. | ||
| They're going to find decisions that she made, which she believes she was compelled to make under the law, which appear inexplicable to the public, not to hurt her, not to deny her the job, because she'll certainly get it, but to embarrass the president. | ||
| This started with Robert Bork. | ||
| It was Joe Biden with Clarence Thomas. | ||
| And then of course, Brett Kavanaugh. | ||
| It doesn't happen to all of them. | ||
| It didn't happen to Amy Coney Barrett. | ||
| It did not happen to Ruth Bader Ginsburg. | ||
| It did not happen to Neil Gorsuch. | ||
| But every once in a while there is a nominee that the minority party, that's the party that's not in the White House, thinks they can tarnish The person who did the nomination by tarnishing the candidate. | ||
| History has shown that does not carry over into the nominee's judicial opinions. | ||
| Whatever you think of Clarence Thomas, he is either forgiven or forgotten. | ||
| And the same thing with Brett Kavanaugh. | ||
| Robert Bork, of course, the trashing worked. | ||
| He was rejected by a vote of 52 against and 48 in favor. | ||
| Yeah, which Joe Biden basically led the charge on. | ||
| Do you think that there's some value in, say, Ted Cruz, Josh Hawley, some of these other guys going for the jugular, even if she's gonna be confirmed either way, just to at least expose some of the thinking behind the decisions so that people can frame the issues properly, even if they can't stop it? | ||
| And of course, it all becomes a circus either way. | ||
| I think the value is to the political base, most respectfully to my friends, for Ted Cruz and Josh Hawley. | ||
| I don't think there's any value to the public in having a circuit court judge explain the intricacies of a judicial opinion, which really only law school graduates can comprehend. | ||
| A lot of times I made decisions on the bench that the law forced me to make, that I sent | ||
| people to jail for crimes that in my opinion were victimless and shouldn't have been crimes | ||
| and they should not have gone to jail. | ||
| Like the three strikes on possession of marijuana, he went away for 20 years. | ||
| That's so absurd, especially today where it's legal in 37 states. | ||
| But there are times when judges must do things that they don't want to do because they've | ||
| taken an oath to uphold the law and the law requires it. | ||
| Understanding that so that the public can understand it is a very difficult task. | ||
| What about if the judge was truly radical? | ||
| And I honestly don't know enough about her full resume and obviously we're going to hear it. | ||
| But what if they were someone that really did not hold any of the principles that you mentioned at the beginning about our founding documents and individual rights and they really were activists In terms of they wanted to fundamentally change the way the country is run, you'd want some exploratory version of it, right? | ||
| Well, the answer is yes. | ||
| However, with Judge Jackson, I mean, she was confirmed to the United States District Court eight years ago, and then was confirmed by this very same Senate to the Circuit Court of Appeals one year ago. | ||
| So they've already gone through all this. | ||
| However, if some nominee did not believe That the Constitution was the supreme law of the land, or believed that the Declaration of Independence was just Jefferson's musings, or that the First Amendment really doesn't guarantee the freedom of speech, that person would probably be disqualified, and those views should be exposed. | ||
| All right, so let's move on to Russia, because you've taken the position that I fully respect, because it's hard to get any sort of sense out of what's going on with Russia and Ukraine, that sanctions actually violate the Constitution. | ||
| So can you explain that a bit? | ||
| Sure. | ||
| And this is not anti-Joe Biden. | ||
| I honestly believe he's doing everything he can short of war. | ||
| To resist Putin. | ||
| I also believe that Putin's ultimately going to win, and that by our arming the Ukrainians, we're probably making it worse, bloodier, and more deadly. | ||
| However, the sanctions fall into three categories. | ||
| Seizing assets, freezing assets, and interfering with contracts. | ||
| So under the Fourth Amendment, if the government freezes a bank account, They freeze your bank account, for example, and you can't take any money out. | ||
| That's a seizure. | ||
| And under the Fourth Amendment, the government can only seize something with a search warrant after they demonstrate to a judge, like I was, I signed hundreds of these, a probable cause of crime. | ||
| So if they seize your yacht in the Bay of Naples, if the Carabinieri, which is the Italian version of the FBI, seizes your yacht in the Bay of Naples and they won't let you on it and they've sent it to Port Newark so that the feds can actually own it and sell it, they have seized your property illegally. | ||
| If they've frozen your bank account without a search warrant, they have frozen your bank account illegally. | ||
| If they have interfered with lawful commercial transactions, if for example you're an importer of Stolichnaya vodka and you've paid for a cargo ship full of Stolichnaya and it arrives at Port Newark or Chicago or Detroit, And the Feds send it away. | ||
| Well, then the Feds have interfered with your lawful commercial transactions. | ||
| The Fifth Amendment says if the government wants life, liberty, contractual rights, or property income from the contract, they have to have a jury trial at which fault is proven. | ||
| Now, under what basis is President Biden engaging in these sanctions? | ||
| There's two statutes, Dave, that the Feds enacted. | ||
| One is the International Economic Emergency Act of 1977, Carter era. | ||
| One is the Magnitsky Act of 2016, Obama era. | ||
| Both of these statutes allow the president, without any evidence or judicial process whatsoever, to declare a human being or an entity, foreign human being or foreign entity, a violator of human rights and seize their assets. | ||
| And if they want the assets back, if you're this billionaire whose yacht was stolen by the Carabinieri and you want it back, you have to come to America, submit to the federal court jurisdiction, which they're never going to do because they're afraid they'll get arrested for some choked up charge, and then you have to prove that you're not a human rights violator. | ||
| How do you prove a negative? | ||
| And that's Alice in Wonderland. | ||
| You're in a federal court, the government wants your property, and you have to prove that you're not what they say you are? | ||
| Forget about it. | ||
| The government has the burden of proof. | ||
| The person whose life, liberty, or property the government wants always is presumed innocent and to presume to be the valid owner of the life, liberty, or property. | ||
| So these two statutes, which have not been challenged constitutionally, because these foreigners are not gonna come here to challenge them, Give the president dictatorial powers, which he has exercised. | ||
| Why do you think some of our companies, maybe, that do business with Russia, say, I'll use the example that you gave, I mean, you're just an American company who's a vodka importer, who's now, your business in essence has been destroyed. | ||
| I mean, should they be suing the federal government at this point? | ||
| Yes, they should. | ||
| Yeah. | ||
| Yes, they should. | ||
| Look, the government, I don't know what you think of this phrase, the government loves to hate. | ||
| I like it. | ||
| Okay, so for 200 years the federal government hated black people, either as slaves or under Jim Crow. | ||
| The federal government told us to hate the Soviet Union, and then hate Iran, and then hate Iraq, and then hate Saddam Hussein, and then, pardon this, hate COVID. | ||
| Now it's hate Putin, and hate all things Russian. | ||
| Well, the Russian people have nothing to do with this, they have the misfortune of being Governed by a dictator. | ||
| I don't think he's crazy. | ||
| I think he's perfectly rational. | ||
| He doesn't care about human liberty or about human life. | ||
| And innocent people are being punished, are being harmed. | ||
| The ruble buys about 5% today of what it bought a month ago. | ||
| So you're paying $15 for a loaf of bread that should have cost $1.50. | ||
| Yeah, absolutely incredible. | ||
| I hope some of these companies fight that. | ||
| I mean, because that's where people forget. | ||
| We're now punishing Americans. | ||
| Correct. | ||
| These are Americans who just happened to do business with something that perhaps originated in Russia. | ||
| Let's move to COVID because you've hit it a couple of times here. | ||
| I'm pretty sure that anything you're going to say on the COVID front, I agree with you. | ||
| I think our civil liberties have been destroyed. | ||
| As you know, I fled California just in the last couple of months. | ||
| I now live in the free state of Florida because I could not deal with the lockdowns and the mask mandates and the general state of depression that it brought and all of the closed businesses and the dreams that were shattered and the whole freaking thing. | ||
| However, we've still got masks on planes. | ||
| They've still got masks on, you know, three year olds in in, you know, toddlers. | ||
| Yet Joe Biden can give the State of the Union with a bunch of 80 year olds in a room with no windows. | ||
| And that's OK. | ||
| What do you make of the entire freaking thing? | ||
| Was this just a disaster from, you know, we're basically at the two year anniversary two years ago. | ||
| Should we have been all screaming louder and known what was coming? | ||
| OK, so you're you're you're scratching at the surface of what my biggest complaint and fear is. | ||
| I am not surprised that the government exercised dictatorial powers. | ||
| Because the government doesn't care about human liberty. | ||
| It just cares about power and staying in power. | ||
| And if the government can give the impression that it's doing something, it will stay in power. | ||
| What has crushed me and broken my heart is how Americans accepted this. | ||
| How we laid down and allowed them to close churches, to close schools. | ||
| Well, the government owns the schools, but to interfere with freedom of travel, with freedom of assembly. | ||
| Even with freedom of speech, I mean, not far from where I am now in this beautiful, countrified area on Palm Sunday, two Palm Sundays ago, a Catholic priest was distributing palms wrapped in cellophane outdoors to people in their cars and the state police broke it up. | ||
| The cars were too close to each other and they were too close to this priest as he physically handed them the palms wrapped in cellophane. | ||
| I went berserk on air and in my writings, because the governor who ordered this appeared at a Black Lives Matter rally, and a part of the Black Lives Matter that I think is absolutely legitimate. | ||
| There were 3,000 people there, they weren't masked, and he was the featured speaker. | ||
| So this is an example of the government using power to promote its own power, and the American public accepted it. | ||
| I once had an argument with Roger Ailes about whether a dictator could ever take over in the United States and he took the position it wouldn't, that the public would never stand for it. | ||
| Well, when the public is afraid, the government's weapon was fear. | ||
| We became a nation of sheep and we still are because Governor Murphy of New Jersey, Governor Whitmer of Michigan, former governor Cuomo of New York, that mentality could come back in a week if some unnamed variant of COVID kicks in again. | ||
| People just don't learn, huh? | ||
| I mean, I'm completely with you on that. | ||
| They will bring it back and people will do the exact same thing and they will say, thank you, sir. | ||
| May I have another? | ||
| Yes. | ||
| And they value safety and Dave, the illusion of safety more than they value Uh, personal liberty. | ||
| And that's why, uh, they went along with it. | ||
| I have very, very many intelligent friends who just couldn't wait to put that mask on. | ||
| What do you make of the way we began to worship, well not we, but many people in the country began to worship these agencies, say the CDC or the NIH. | ||
| These are unelected people, some of them are appointed people, but they're unelected people who we basically outsourced our public policy to in terms of who you could stand next to and what restaurant could be open and everything else. | ||
| And also that nobody gets fired. | ||
| I mean, if I was to take away one thing from this, how has nobody at the CDC been fired? | ||
| Two weeks to flatten the curve, it's two years later. | ||
| Nobody was fired anywhere. | ||
| Instead of electing people for policy, they get installed and then they just exist. | ||
| Nobody was fired in the intelligence community after 9-11. | ||
| People don't get fired no matter what the calamity is, in part because the government has enacted statutes that insulate itself from liability when it drops the ball and people get hurt. | ||
| One of my least favorite presidents, I'm a graduate of Princeton University. | ||
| He was the president of Princeton and then the governor of New Jersey and then president of the United States, Woodrow Wilson. | ||
| Princeton has since stripped his name from everything there. | ||
| When I was there, half the place was named Wilson this and Wilson that. | ||
| Created the administrative state. | ||
| This constitutional law professor said we should be governed by people smarter than we are. | ||
| Now he might not have envisioned the CDC, but he's the one that started the ball rolling. | ||
| Now there are 30 or 40 of these three and four letter acronym government entities The membership on which doesn't change, no matter who's in the White House or who, what party controls Congress. | ||
| They have more control over our lives than, uh, than the Congress does. | ||
| The only person, the only president in the modern era that thumbed his nose at this whole thing and tried to suppress it was Donald Trump. | ||
| And, and parts of it, the intelligence and law enforcement community went right back at him. | ||
| And we all know what happened. | ||
| What should we do? | ||
| I mean, is there any legal recourse? | ||
| I've been trying to discuss this on my show the last couple of weeks that, you know, as we're somewhat out of the fog of COVID, although I do believe somehow magically it will reappear, that we can't forget all of the people that put us in this position. | ||
| Now, we're not on the side of gulags and jailing people and all of that. | ||
| But do you think there is any recourse? | ||
| For public officials who demanded clearly unconstitutional mandates related to vaccines that now they're pulling back because they finally realized it wasn't working. | ||
| I mean, is there anything within the legal system not not to blow up the legal system to jail them, but is there anything legally that we could be doing to so that some of these people that there's some repercussion? | ||
| Otherwise, we will do it all again. | ||
| The short and regrettable answer is no. | ||
| For the reason that we talked about a few minutes ago, the government has insulated itself from the consequences of its own misbehavior. | ||
| Could I sue Phil Murphy, the governor of New Jersey, because he closed the Catholic Church, or all churches in New Jersey, and I wasn't able to receive the Blessed Sacrament on Easter? | ||
| No, I cannot. | ||
| So the answer is either political or radical. | ||
| You couldn't sue for violation of the Fourth Amendment? | ||
| I mean, violation of, you know, right to assembly? | ||
| I mean, is there? | ||
| You know, the Constitution has a clause that requires standing. | ||
| And standing means that you have an injury distinct from all others. | ||
| So if the injury afflicts everybody, the remedy is political. | ||
| The courts are not going to hear it. | ||
| If he denied just Dave Rubin's right to go to a restaurant, or just Judge Napolitano's right to go to Our Lady, Queen of Peace on Easter Sunday, You'd have the right to sue and I'd have the right to sue. | ||
| But because Gavin Newsom denied, I think you were in California at the time, everybody's right. | ||
| And because Phil Murphy denied everybody's right, the courts will say the remedy is political. | ||
| You don't like them, throw them out of office. | ||
| So the remedy is either political or radical. | ||
| The radical remedy is to do how the country began, secede. | ||
| We seceded from Great Britain. | ||
| I wouldn't be surprised Maybe not in my lifetime, but perhaps yours. | ||
| If the federal government can't pay its bills, its money becomes worthless, and the country breaks apart into a dozen smaller countries. | ||
| Where you are will be the land of the free. | ||
| Where Texas is will be the land of the free. | ||
| Where I am in the Northeast, it'll be the People's Republic. | ||
| Wow, Judge, I did not know you were going to go there, but this is a theory I've been teasing out a little bit on my show. | ||
| I'm kind of there. | ||
| There's a bunch of writers talking about this. | ||
| I don't like the idea of secession, and I like the idea of the United States. | ||
| But to me, the federal government is so out of control for all the reasons you've just described, I don't think it can be repaired. | ||
| I can tell you, and I think I've been in California, my guys have a counter, 91 days right now I've been in Florida. | ||
| Since I left, I feel like I live in a different country. | ||
| And the problem is that in the free states, they're not going to want anything. | ||
| Nobody in Florida wants anything from the people in California, but the people in California want something from the people in Florida. | ||
| That's an untenable position. | ||
| You know, the government, the federal government fears two things. | ||
| It fears loss of power over certain geographical areas. | ||
| So if Florida secedes, Feds couldn't control Florida at all. | ||
| And it fears Tax fears loss of tax dollars. | ||
| If everybody who lives in Florida didn't have to pay a federal income tax, the feds would be pulling their hair out because of the same thing what happened in Texas and Montana and other states and this behemoth that we've allowed to grow from Woodrow Wilson to Joe Biden. | ||
| And Republicans are just as bad, just as bad. | ||
| You know, George Bush borrowed $3 trillion. | ||
| Donald Trump borrowed $2 trillion. | ||
| Joe Biden Borrowed one trillion in just one year. | ||
| That we've allowed this monstrosity to get out of control, to mortgage the future, to sap our liberties. | ||
| The only way around it would be to let it go by the wayside. | ||
| Well, then I have to ask you, what keeps you in the Northeast? | ||
| What's keeping you in Jersey with the high taxes and everything else? | ||
| I mean, this is where the rubber meets the road, right? | ||
| I love my farm. | ||
| I love this property. | ||
| I love the real estate. | ||
| You are not the only friend that asks me that. | ||
| Almost all of them do. | ||
| But you are one of the happiest people I know. | ||
|
unidentified
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I'm telling you, man, I'm a lot happier now than I was two months ago. | |
| You know, Fox sent me to California for a year. | ||
| To do a reality show. | ||
| I played myself. | ||
| It was called Power of Attorney. | ||
| It was a Judge Judy-like show. | ||
| We had celebrity lawyers. | ||
| So the O.J. | ||
| case had just ended. | ||
| We had all the lawyers from O.J. | ||
| The late, great F. Lee Bailey and I became great friends from this show. | ||
| You know, they were half-hour shows, superstar lawyers. | ||
| The typical case was the dry cleaner ruined my dress, but he also tried to pick up my sister. | ||
| You know, it was nonsense like that. | ||
| I hated it. | ||
| I hated all that time in California. | ||
| I couldn't wait to come home. | ||
| And that's while it was still open. | ||
| I mean, geez. | ||
| OK, I want to cover one more big one for you, which I'm covering pretty much every day here. | ||
| And it frames almost everything I do, which is some of the big tech stuff and where the law should be involved and where it should not and how that relates to free speech. | ||
| Do you view these these platforms, Facebook, Twitter, et cetera, as sort of the new public square? | ||
| And if they squelch a person or a story, obviously, in the last week, We now know that the Hunter Biden laptop story is legit, and yet Facebook and Twitter not only banned the story from being posted, but literally shut down the New York Post's Twitter account. | ||
| Are there some legal remedies here, or is this just left to congressional hearings that nothing ever happens for the reasons that you've been laying out this whole time? | ||
| In my opinion, it should be left to the free market. | ||
| You know, Facebook, in my view, is just a glorified high-tech bulletin board. | ||
| They own the bulletin board, and if they don't like something that was posted, they can take it down. | ||
| I don't like it. | ||
| I've been criticized by them, but they're a private entity. | ||
| The last thing in the world we want is a federal government involved in speech, because the government will favor the speech of its benefactors, and it will favor the speech it likes, and disfavor the speech that is critical of it. | ||
| The free market in ideas, as well as the free market in electronic bulletin boards, if you'll pardon that phrase, is what should resolve this. | ||
| So someone like Charles Koch should start his own Facebook, and you'll watch Mark Zuckerberg's profits go way down as hundreds of millions of people migrate over to another bulletin board. | ||
| Hint, hint, I suppose, at Charles Koch. | ||
| Hint, hint. | ||
| I know him well. | ||
| He's turned down this idea, but I keep pushing it. | ||
| Judge, I've thoroughly enjoyed this. | ||
| I hope you'll come back and good luck in Jersey, man. | ||
| Listen, if the country does split, I've got a guest room. | ||
| You're very kind. | ||
| It's a pleasure to be on with you. | ||
| I've admired your work for years and I'd love to do it again. | ||
| Thank you, Dave. | ||
| Maybe you'll come on Judging Freedom with me. | ||
| I think I'm coming on in a couple of weeks. | ||
| That's what they're telling me. | ||
| I think so. | ||
| Great. | ||
| If you're looking for more honest and thoughtful conversation about law instead of the nonstop yelling you get everywhere else, check out our law playlist. | ||
| And if you want to watch full interviews on a variety of topics, check out our full episode playlist. | ||
| They're both right over here. |
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