Judge Andrew P. Napolitano*
Within hours of realizing that his party lost control of the U.S. Senate last week, President Obama nominated Loretta Lynch, the chief federal prosecutor in Brooklyn, N.Y., and an outstanding and apolitical professional, to be the next attorney general. The current attorney general, Eric Holder, resigned last month.
Lynch is sure to be confirmed by either the present Democratic-controlled Senate this fall or by the newly constituted Republican-controlled Senate early next year -- and she should be. But the process of confirming her should capture the interest of all Americans concerned about the loss of personal freedoms in our present-day Orwellian world in which the Obama administration has killed innocent Americans, spied on trillions of conversations and emails without probable cause, and declined to enforce laws with which it disagrees. Republican senators have a duty to ask her probing questions.
Is this just inside-the-Beltway stuff, or should you care who is the chief federal law enforcement officer in the land? You should care, and here is why. When the United States was founded, the essence of the government was the diffusion of power between the states and the federal government. At the outset, state attorneys general were the engines that drove law enforcement, as the U.S. attorney general was involved exclusively with governmental relations between the states and the feds and protecting federal interests -- which included federal property and federal currency. The job came with a small office and a handful of remotely venued prosecutors. The states checked federal law enforcement excess by not cooperating with it or even judicially invalidating it.
Today, the opposite is the case. When the feds want something, they bully the states aside, and when the feds get away with something, the states will soon follow. Today, the states are powerless to check federal excess, and so Attorney General Holder became President Obama’s enabler in some of the most egregious violations of the natural law, the Constitution and federal law in modern American history. Today, the attorney general -- often called “General” by law enforcement -- commands an army of 90,000 lawyers, FBI agents, investigators, clerks, pilots, even troops. There are currently in excess of 4,000 federal criminal statutes for her to enforce, and she sets the tone for law enforcement throughout the country.
Hence, I suggest to members of the Senate Judiciary Committee that they permit Lynch to distinguish herself from Holder by inducing her to answer the following questions:
- Will you advise the president, as Holder did, that his careful, secret, conscientious deliberations about the legal guilt of some Americans are a constitutionally adequate substitute for due process, such that he can kill uncharged, untried, unsentenced Americans?
- Do you defend the president's killing two innocent American children, as Holder did?
- Will you advise the president that he can use his prosecutorial discretion in such a manner that American borders become open as they did for Central American children last summer, and that foreign nationals who are here illegally can legally remain here without complying with the laws Congress has written?
- Will you tell the president that the NSA can disregard the Constitution and execute general warrants, which permit the bearer to search wherever he wishes and seize whatever he finds, even though the Fourth Amendment was written to prevent general warrants?
- Can the president decline to enforce laws with which he disagrees without violating his oath to enforce federal laws faithfully?
- Will you advise the president that he can subpoena the home telephone records and the personal email accounts of Associated Press and Fox News reporters, as Holder did?
- Will you permit state and local police and the IRS to seize the property of known innocents who have not been charged with criminal behavior, much less convicted of it, and then retain much of the seized property even if the persons from whom it was seized are acquitted?
- Will you permit law enforcement to break the law in order to enforce it?
- Will you condone law enforcement using tanks and battering rams to deliver subpoenas?
- Will you permit law enforcement personnel to create crimes so that they can solve the crimes they created and then boast about the crimes they claim to have solved?
- Do you accept the presumption of liberty, which means that the government must respect individual choices unless and until it can prove violations of the law to a judge or jury?
It is time for a national debate about the role of law enforcement in our lives, and the confirmation hearings on the nomination of Loretta Lynch to become attorney general can provide an excellent platform. If she agrees that the Constitution is not a neutral instrument as between the people and the government because it was written to keep the government off our backs, she will be an antidote to Obama’s law breaking.
But I think I may be wishing for too much. She is, after all, his nominee.
*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.