Hillary Lies Again

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

In a column I wrote in early July, based on research by my colleagues and my own analysis of government documents and eyewitness statements, I argued that in 2011 and 2012 then-Secretary of State Hillary Clinton waged a secret war on the governments of Libya and Syria, with the approval of President Obama and the consent of congressional leadership from both parties and in both houses of Congress.

I did err in that column with respect to an arms dealer named Marc Turi. I regret the error and apologize for it. I wrote that Turi sold arms to Qatar as part of Clinton’s scheme to get them into the hands of rebels. A further review of the documents makes it clear that he applied to do so but was denied permission, and so he did not sell arms to Qatar. Other arms dealers did.

I also erred when referring to Qatar as beholden to Washington. In fact, Qatar is in bed with the Muslim Brotherhood and is one of the biggest supporters of global jihad in the world -- and Clinton, who approved the sales of arms to Qatar expecting them to make their way to Syrian and Libyan rebels, as they did, knew that. She and her State Department caused American arms to come into the possession of known al-Qaida operatives, a few of whom assassinated U.S. Ambassador Chris Stevens.

When Sen. Rand Paul, R-Ky., asked Clinton in January 2013 at a Senate Armed Services Committee hearing whether she knew of any weapons coming from the U.S. and going to rebels in the Middle East, she denied such knowledge. She either has a memory so faulty that she should not be entrusted with any governmental powers, or she knowingly lied.

It gets worse.

It now appears that Clinton was managing her war using emails that she diverted through a computer server owned by her husband’s charitable foundation, even though some of her emails contained sensitive and classified materials. This was in direct violation of federal law, which requires all in government who possess classified or sensitive materials to secure them in a government-approved venue.

The inspector general of the intelligence community and the inspector general of the State Department each have reviewed a limited sampling of her emails that were sent or received via the Clinton Foundation server, and both have concluded that materials contained in some of them were of such gravity that they were obliged under federal law to refer their findings to the FBI for further investigation.

The FBI does not investigate for civil wrongdoing or ethical lapses. It investigates behavior that may be criminal or that may expose the nation’s security to jeopardy. It then recommends either that indictments be sought or the matter be addressed through non-prosecutorial means. Given Clinton’s unique present position -- as the president’s first secretary of state and one who seeks to succeed him, as well as being the wife of one of his predecessors -- it is inconceivable that she could be prosecuted as Gen. David Petraeus was (for the crime of failing to secure classified materials) without the personal approval of the president himself.

Let’s be realistic and blunt: If the president wants Clinton prosecuted for failing to secure classified materials, then she will be, no matter the exculpatory evidence or any political fallout. If he does not want her prosecuted, then she won’t be, no matter what the FBI finds or any political fallout.

I have not seen the emails the inspectors general sent to the FBI, but I have seen the Clinton emails, which are now in the public domain. They show Clinton sending or receiving emails to and from her confidante Sid Blumenthal and one of her State Department colleagues using her husband’s foundation’s server, and not a secure government server. These emails address the location of French jets approaching Libya, the location of no-fly zones over Libya and the location of Stevens in Libya. It is inconceivable that an American secretary of state failed to protect and secure this information.

But it is not inconceivable that she would lie about it.

Federal statutes provide for three categories of classified information. “Top secret” is data that, if revealed, could likely cause grave damage to national security. “Secret” is data that, if revealed, could likely cause serious damage to national security. “Confidential” is data that, if revealed, could likely cause some damage to national security. Her own daily calendars, which she regularly emailed about, are considered confidential.

Clinton has repeatedly denied ever sending or receiving data in any of these categories. She probably will argue that an email that fails to use the terminology of the statute cannot be deemed classified. Here the inspectors general have corrected her. It is the essence of the data in an email -- its potential for harm if revealed -- that makes its contents classified and the failure to protect it a crime -- not the use of a magic word or phrase in the subject line.

She is no doubt lying again, just as she did to the Senate Armed Services Committee. Yet the question remains: Why did she use her husband’s foundation’s computer server instead of a government server, as the law requires? She did that so she could obscure what the server recorded and thus be made to appear different according to history from how she was in reality. Why did she lie about all this? Because she thinks she can get away with it.

Will American voters let her?

*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.

Hillary Clinton’s Upside Down Tax Reforms

Richard Epstein*

Richard Epstein

Richard Epstein

In her recent speech at NYU Stern School of Business, Hillary Clinton put forward a suite of proposals for responding to what shetermed “quarterly capitalism,” which leads corporate executives to favor short-term income at the expense of sustainable long-term growth. The single most important feature of her speech is what she did not mention—removing or weakening taxes and regulations that shackle today’s overregulated economy.

In her uneasy effort to sound like a responsible version of the irrepressible Bernie Sanders, she tried to fuse together two progressive themes that are difficult to marry to each other: the promotion of economic growth and greater wage equity, especially for workers at the bottom end of the income scale.

The most novel aspect of her corporate program is to increase the capital gains tax on short-term investments in order to incentivize key corporate officers to invest in the long haul by having high-income taxpayers monitor their behavior. Right now short-term capital gains on assets held for less than one year are taxed at ordinary income tax rates, which tops out at 39.6 percent, to which is added a 3.8 percent net investment income tax, for a total of 43.4 percent.

The Clinton proposal is to double that short-term period, and then to slowly decrease the excess burden over the next four years, until in the sixth year the long-term capital gains rates (which top out at 20 percent) will kick in. This proposal only applies to the top 0.6 percent of families whose incomes are over $465,000 per year. Its purpose is to encourage corporate CEOs to work for long-term gains and to treat their workers as “assets.”

Unfortunately, Clinton’s proposal won’t work. It rests on a number of unexamined assumptions. The first is that companies currently manage exclusively to short-term numbers. To be sure, such numbers provide a useful benchmark that gives guidance to investors and workers alike. Stock prices can move sharply up or down on these reports.

But in general that responsiveness is a good and not a bad thing, because that one quarterly number reduces the cost of monitoring overall firm performance, which, in turn, allows all investors to punish bad and reward good performance. This brute fact is why no one wants to prohibit firms from disclosing that number. That one number, moreover, influences every market participant, not just the tiny sliver of people at the top.

The quarterly number is of course not the be-all and end-all measure of corporate behavior. The typical statement will also contain all sorts of footnotes that make it possible for firm analysts to determine how both accrued (not yet paid or collected)and contingent (which may or may not come to pass) revenues and liabilities influence long-term growth. In addition, the Securities and Exchange Commission requires an extensive Management Discussion & Analysis narration of the public firm’s annual report.

These detailed materials are not for everyone, but for the small group of professional analysts that follow individual companies. These professional analysts often have influence over large pools of capital and can base their investment decisions on long-term prospects. Clinton has presented no evidence that this process is out of whack, or more precisely, out of whack in ways that her taxation proposal can address.

Start with this question: Is the proper object of taxation income or consumption? Right now, we tax income, but as a matter of principle that decision is highly suspect, because of the extra taxation it places on personal savings, savings that become the capital investments Clinton wants. Any capital gains tax, either long-term or short-term, exerts a lock-in effect on investors that makes them reluctant to sell their current investments to buy new ones.

An investor who pays a 20 percent capital gains tax to the government has less money to invest in a new project relative to an old one. Thus, he may well be reluctant to make that shift even if the new investment promises a higher rate of return than the old investment. The numbers may not add up given that he is working off a smaller investment base. A decision that reduced the capital gains to a zero rate would, after transactions costs, leave the same amount of money to invest in the new project, which makes it easier for capital to move to its higher value use. In the alternative, the zero tax rate could be extended only to those capital gains that are reinvested in other similar ventures within, say, a 30-day period.

Note that the dangers of lock-in explain why the Clinton proposal is upside down. First, the Clinton proposal is likely to reducetax revenue as it lowers the rate of investment and postpones the turnover among investments. This second consequence is very serious because a sensible investment strategy depends on skilled investors cashing out of mature investments that are now lower risk in order to reinvest in new high risk ventures that can benefit from their expertise.

Revenue consequences aside, Clinton is wrong to think that the best way to monitor a weak investment is for rich investors to be prepared to go down with the ship. Most individuals, however wealthy, have only the tiniest sliver of ownership in any large corporation, and thus have little incentive to monitor its performance given their high private costs. But selling shares, which puts a downward pressure on the firm’s value, is a wonderful way to attract the attention of insiders that something is wrong. It also increases the possibility that new share buyers will have a sufficiently large block of stock such that they will be in a better position to deal with the shortcomings of the existing corporate culture.

Clinton in her speech berates many activist investors for their short-termism. But this point is exactly backwards. The ability of activists to acquire large blocks of stock can allow them to demand fundamental structural reforms in the company, or to claim for themselves seats on the corporate board where they can make fundamental changes in corporate strategy, including the sale of underperforming corporate assets or the replacement of ineffective corporate managers.

The point is especially true when we take into account the way in which many people, including rich owners, hold their stock. For a variety of reasons, it is generally unwise for individuals to hold stocks of individual companies. Those investments could lead to an under-diversification of risk, which exposes them to sharp downfalls that occur in either a particular sector or a particular firm. Such risks are avoidable by holding well-diversified portfolios.

In addition, many high-income individuals, such as executives, bankers, and other professionals, do not know their next assignment from one end of the year to the next. But they are keenly aware that they work under all sorts of business and legal restrictions against trading on inside information of the sort that Clinton wants them to acquire. One wrong transaction can put any of these professionals on the wrong end of firm sanctions or a criminal investigation. The best way to avoid this risk is to turn over all portfolio investments to an independent manager. Indeed, in some cases the pressures are so strong that it is best that the investments be held in a blind trust where the beneficiary knows nothing about individual holdings, but only about general investment strategy.

Given these strong business pressures, the better strategy for virtually all investors, whether well heeled or not, is to find some institutional intermediary to run interference by making all key investment decisions. One way to do that is to buy directly into mutual funds with other private parties. Still another way is to hire a personal financial advisor who can direct that task of asset allocation across different classes of assets—stocks, bonds, real estate, cash—usually held in mutual funds. At this point, the individual investor is two levels removed from the actual control of corporate activities.

Even for those hardy individuals who make their own investment decisions, huge fractions of their wealth are in pension plans that operate in a tax-free environment until distributions are made years later when they reach retirement age. For this large group of persons, no tax treatment can possibly make a difference in how these private owners (or their managers) view their operation. Quite simply, the Clinton proposal takes into account none of the complexities of current market structure in requiring persons to take long-term positions in firms, assuming that such positions will lead to appropriate forms of pressure.

Nor is it clear that any of the pressures she hopes to create will lead to her general goal that asks for firms to treat their workers as long-term assets. The initial question here is—why don’t employers do this right now? The short answer is that they do: managing “human resources” is right at the top of the list of key corporate functions. No firm can hope to survive if it gives short shrift to its worker base, which includes the large number of lower income workers on which its activities depend. In the large corporation, that long-term planning pays especial attention to skilled workers in high income positions.

The recent salary evidence makes it painfully clear that the wage gap continues to rise between those workers that have marketable skills and those that don’t. An oil company during an energy boom needs to hire petroleum engineers, but not janitors, on its long-term payroll. Janitorial work is better outsourced to independent firms that can deal with the formidable regulatory barriers to hiring low-wage workers in nonskilled areas.

Indeed, the workers who are cast out of the corporate network will have to find jobs in small firms, often run themselves by middle and lower income owners who have to struggle to stay in business because progressives like Clinton know exactly how those owners should run their businesses. The recent evidence suggests that the Obama administration’s proposed regulationsto expand the number of hourly workers entitled to overtime protection under the Fair Labor Standards Act will provoke prompt business efforts to cut overtime and reshape business to minimize that burden.

In the end, we get the perfect populist storm: Tax proposals that will not help reform the corporate sector are justified in order to promote labor reforms that will cripple labor markets. The one law that even Clinton cannot repeal is the law of unintended consequences.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Hillary's Secret War

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

In the course of my work at Fox News, I am often asked by colleagues to review and explain documents and statutes. Recently, in conjunction with my colleagues Catherine Herridge, our chief intelligence correspondent, and Pamela Browne, our senior executive producer, I read the transcripts of an interview Browne did with a man named Marc Turi, and Herridge asked me to review emails to and from State Department and congressional officials during the years when Hillary Clinton was the secretary of state.

What I saw has persuaded me beyond a reasonable doubt and to a moral certainty that Clinton provided material assistance to terrorists and lied to Congress in a venue where the law required her to be truthful. Here is the backstory.

Turi is a lawfully licensed American arms dealer. In 2011, he applied to the Departments of State and Treasury for approvals to sell arms to the government of Qatar. Qatar is a small Middle Eastern country whose government is so entwined with the U.S. government that it almost always will do what American government officials ask of it.

In its efforts to keep arms from countries and groups that might harm Americans and American interests, Congress has authorized the Departments of State and Treasury to be arms gatekeepers. They can declare a country or group to be a terrorist organization, in which case selling or facilitating the sale of arms to them is a felony. They also can license dealers to sell.

Turi sold hundreds of millions of dollars’ worth of arms to the government of Qatar, which then, at the request of American government officials, were sold, bartered or given to rebel groups in Libya and Syria. Some of the groups that received the arms were on the U.S. terror list. Thus, the same State and Treasury Departments that licensed the sales also prohibited them.

How could that be?

That’s where Clinton’s secret State Department and her secret war come in. Because Clinton used her husband’s computer server for all of her email traffic while she was the Secretary of State, a violation of three federal laws, few in the State Department outside her inner circle knew what she was up to.

Now we know.

She obtained permission from President Obama and consent from congressional leaders in both houses of Congress and in both parties to arm rebels in Syria and Libya in an effort to overthrow the governments of those countries.

Many of the rebels Clinton armed, using the weapons lawfully sold to Qatar by Turi and others, were terrorist groups who are our sworn enemies. There was no congressional declaration of war, no congressional vote, no congressional knowledge beyond fewer than a dozen members, and no federal statute that authorized this.

When Sen. Rand Paul, R-Ky., asked Clinton at a public hearing of the Senate Armed Services Committee on Jan. 23, 2013, whether she knew about American arms shipped to the Middle East, to Turkey or to any other country, she denied any knowledge. It is unclear whether she was under oath at the time, but that is legally irrelevant. The obligation to tell the truth, the whole truth and nothing but the truth to Congress pertains to all witnesses who testify before congressional committees, whether an oath has been administered or not. (Just ask Roger Clemens, who was twice prosecuted for misleading Congress about the contents of his urine while not under oath. He was acquitted.)

Here is her relevant testimony.

Paul: My question is … is the U.S. involved with any procuring of weapons, transfer of weapons … buying, selling … anyhow transferring weapons to Turkey … out of Libya?

Clinton: To Turkey? ... I will have to take that question for the record. Nobody’s ever raised that with me. I, I…

Paul: It’s been in news reports that ships have been leaving from Libya and that they may have weapons … and what I’d like to know is … the (Benghazi) annex that was close by… Were they involved with procuring, buying, selling, obtaining weapons … and were any of these weapons transferred to other countries … any countries, Turkey included?

Clinton: Senator, you will have to direct that question to the agency that ran the (Benghazi) annex. And I will see what information is available and … ahhhh…

Paul: You are saying you don’t know…

Clinton: I do not know. I don’t have any information on that.

At the time that Clinton denied knowledge of the arms shipments, she and her State Department political designee Andrew Shapiro had authorized thousands of shipments of billions of dollars’ worth of arms to U.S. enemies to fight her secret war. Among the casualties of her war were U.S. Ambassador to Libya Chris Stevens and three colleagues, who were assassinated at the American consulate in Benghazi, Libya, by rebels Clinton armed with American military hardware in violation of American law.

This secret war and the criminal behavior that animated it was the product of conspirators in the White House, the State Department, the Treasury Department, the Justice Department, the CIA and a tight-knit group of members of Congress. Their conspiracy has now unraveled. Where is the outrage among the balance of Congress?

Hillary Clinton lied to Congress, gave arms to terrorists and destroyed her emails. How much longer can she hide the truth? How much longer can her lawlessness go unchallenged and unprosecuted? Does she really think the American voters will overlook her criminal behavior and put her in the White House where she can pardon herself?

*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.

Hillary Clinton vs. Free Trade

Richard Epstein*

Richard Epstein

Richard Epstein

The Trans-Pacific Partnership (“TPP”), which is designed to reduce various trade barriers between the United States and eleven Pacific Rim nations—Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam—hangs by a thread in the United States Congress. The immediate question is not the ratification of any future treaty. Rather, it is over whether the President should receive “fast-track” authority to negotiate a treaty on behalf of the United States, over which the Congress can exercise only an up-or-down vote, with no amendments allowed, after a maximum of 20 hours of debate.

Passing the fast-track measure, which is supported by the Republicans and President Obama, would be a win for free trade. But anti-trade forces, including Hillary Clinton and Nancy Pelosi, are conspiring against it.

From a game theory approach, fast-track is a good solution to a complex two-stage bargaining game. At stage one, the President and his trading partners are well aware of the prospect that the Congress could turn down a trade treaty if it is perceived, no questions asked, to put the United States in a worse position. So Congress will agree to a treaty that is better than the status quo ante for the U.S., but not so one-sided that it will drive our potential trading partners away. Hence, a stage one agreement will leave everyone better off.

The great advantage of fast-track authority is that it ensures that sensible agreements at stage one will not be rejected at stage two, in the hopes that the United States (or indeed any of our trading partners) can then strategically hold out for better terms.

Such strategic behavior is indispensible for negotiating multi-lateral treaties. This is why the anti-trade forces in the United States have pulled out all the stops to derail a process that they know is likely to pave the way to agreements that leave everyone better off. Two key interest groups, labor and environmental, are staunchly opposed to such agreements.

These negotiation dynamics have set up an alliance of strange bedfellows. President Obama, to his credit, has perceived that either the United States must join the TPP or risk being shut out of trading opportunities with some of the most dynamic and emerging economies in the world. It’s not clear today how Congress will come out on this issue, but it’s worth looking at the intellectual mindset that has given rise to the debate.

The key to international trade arrangements lies in understanding the simpler dynamics of domestic economic systems. In domestic markets, the ideal state provides a neutral platform on which competitive markets can flourish to maximize gains from trade. That competitive outcome depends in large measure on strong property rights and one’s ability to voluntarily contract for both goods and services. It also requires public infrastructure over which trade can take place. Finally, it establishes rates for natural monopolies—chiefly common carriers and public utilities—that cannot be broken up, and uses the antitrust law to respond to the monopoly and cartel arrangements of ordinary firms.

In a complex federal system like that of the United States, a wide number of nondiscrimination rules—each state can only subject out-of-state people to regulations and taxes it imposes on its own citizens and firms—are necessary to prevent each state from showering unearned favors on its own citizens and firms. In essence, these rules forge a national union out of its state subunits. The driving force behind this model is that an open market where all parties can freely trade benefits all the participants in the system. To be sure, disappointed competitors abound, but so long as people can enter and exit markets multiple times, the larger the pie will be for more and more people. Indeed, no society that has ever prospered has done so in wholesale deviation from these rules.

Sadly, labor unions reject this model and claim that workers will be exploited if there are no strong pro-union laws. In reality, these laws establish an artificially high wage structure, which then has to be protected from competitive pressures, both domestic and foreign. This worldview then translates into tariff and tax barriers against the entry of foreign goods and workers.

Environmental groups also reject this model. They do not stop with the enforcement of anti-nuisance laws, i.e. property rights, to address pollution and other emissions. Instead, under the guise of the “precautionary principle,” they demand excessive control of minor risks, and then go on to conscript, without compensation, private property to protect wetlands and endangered species.

Within the domestic sphere, these groups have enjoyed extensive successes. But they are rightly afraid that their successes will come under assault if low-priced goods and services can be imported. Hence both groups oppose free trade agreements that cut tariff and tax barriers to foreign goods and services, because such free trade measures undercut these groups’ domestic victories.

Unfortunately, their shortsighted position ignores the benefits to those nations whose goods and services are sold in the United States. Similarly, they disregard the domestic benefits to individuals and firms who use the lower prices and superior quality of imported goods to get a better deal for themselves. The gains here are not confined, moreover, to domestic markets. Incorporating cheaper foreign goods and services into American goods improves our position in export markets. The logic that drives domestic markets also works internationally: there are mutual gains from trade, which is why most independent analysts start with a strong presumption in favor of free trade.

Ironically, this unvarnished position is not, right now, saleable in the United States. A quick look at the position staked out by the United States Trade Representative on the TPP shows the substantial concessions that the Obama administration and the Republicans are prepared to make to labor and environmental groups to keep the deal alive. Here are some key items:

  • “The TPP will support Made-in-America exports”; “The TPP will help American small businesses benefit from trade.” These two propositions contain a built-in ambiguity. TPP is certainly correct to seek to remove trade barriers to those growing markets where we would like to enter. But it would be a mistake to countenance any government subsidy for any firms, big or small, in the export market. All subsidies distort domestic markets by encouraging overproduction of the subsidized goods, and the relative underproduction of the overtaxed goods and services. It will require constant vigilance to keep the TPP on target.
  • “The TPP will enforce fundamental labor rights.” More concretely, this means that: “The TPP will level the playing field for American workers and businesses by building strong and enforceable labor standards.” Big mistake. The essence of international competition is to allow each nation to decide what level of labor protection it wants to give its own workers, knowing that those protections that raise costs without providing offsetting benefits will make local businesses less competitive in global markets. Indeed, oftentimes strong unions, a high minimum wage, or too many safety regulations in developing nations will hamper the transition from lower to higher levels of productivity. The point here is not that the United States should tell other nations not to have labor laws because they are inconsistent with the principles of laissez-faire. It is to let sovereign nations decide for themselves, so that a trade agreement does not contain its own obstacles to free trade. These international pressures will threaten unions all over. But the short term decline in union wages will be overcome when gains in productivity will lead to sustainable higher wages without any artificial government protection.
  • “The TPP will promote strong environmental protection.” Again, there are two cases. The first is that nations in the free trade bloc will pollute across international borders, which is frankly a low-risk for the signatories to the Trans-Pacific Region. But for these actions, one nation should have recourse against another whether or not there is a free trade agreement in place. So the real point here is that the United States is seeking to make other nations choose a level of internalenvironmental protection that suits our needs rather than theirs. In general, as prosperity increases, domestic demand for environmental regulation gets more intense. By helping trade grow, we facilitate that process. But by imposing extrinsic standards, we actually thwart competition and block that economic progress.

There are two other gaps in our trade policy that should be noted. The first is that we insist that the trade agreement be accompanied by trade adjustment assistance—a provision for retraining domestic workers whose jobs are said to be lost to foreign competition. It is just this linkage between worker-aid bills and free trade that has complicated passage of the legislation. Traditionally, Republicans have swallowed their pride to vote for both measures, even though trade adjustment assistance makes no more sense in the international context than it would in the domestic context. Competition always produces discrete losers, who then become the poster children for government support. These programs have a checkered history at best. But it is best to keep them rather than lose the TPP.

The second mistake is rhetorical. There is in these discussions a peculiar silence about the gains from trades that are supplied to our trading partners. These are in fact of enormous importance. At one level, more prosperous nations are more stable socially and stronger militarily. They will have a greater demand for American goods and services. In addition, they are more likely to be better disposed to us at a time when we need all the allies we can garner in this uncertain world.

And, from a moral perspective the lives and happiness of citizens of other nations is worth encouraging for simple humanitarian reasons. The old utilitarian maxim that “each person counts for one and only one” applies in international affairs as well as domestic ones. The unsavory jingoism of organized labor discounts an individual’s utility simply because he speaks a different language or has a different skin color.

When American politicians like Hillary Clinton and Nancy Pelosi, and groups like Public Citizen start speaking of the need to extract a better deal for American workers, we should expose this indefensible chauvinism for what it is. An imperfect trade deal is far better for everyone than no trade bill at all. Yet progressives violate their own conception of universal justice by lining up against the TPP.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

What If They Are Hiding the Truth?

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

What if President Obama secretly agreed with others in the government in 2011 to provide arms to rebels in Libya and Syria? What if the scheme called for American arms merchants to sell serious American military hardware to the government of Qatar, which would and did transfer it to rebel groups? What if the U.S. Department of State and the U.S. Department of the Treasury approved those sales?

What if the approvals were kept secret because some of those rebel groups were characterized by the same Departments of State and Treasury as terrorist organizations? What if the ultimate recipients of those arms were the militants and monsters in al-Qaida and ISIS who have slain and tortured innocents?

What if this scheme is defined in federal law as providing material assistance to terrorist organizations? What if that’s a felony? What if that’s the same felony for which the U.S Department of Justice has prosecuted dozens of persons merely for attempting? What if this scheme was not a mere attempt, but an actual arming of terrorists?

What if this scheme was approved not only by the president, but also by Secretary of State Hillary Clinton? What if the idea of doing this was hers? What if congressional leaders in both houses of Congress and from both parties signed off on this? What if the remaining members of Congress and the American people were kept in the dark about this scheme? What if those who agreed to permit this scheme knew that the arms were destined for terrorist organizations and they were flirting with a criminal conspiracy to violate federal law?

What if Clinton was asked by senators while under oath about the delivery of arms made by American manufacturers to ports in the Middle East and she denied knowing anything about it? What if she knew she had personally approved the deliveries but falsely claimed she had no knowledge?

What if this arms-to-terrorists scheme began to unravel? What if the rebels were really bad guys? What if there are many rebel/terrorist groups with varying degrees of hatred for the United States? What if some of the groups that received American arms are so hateful of the U.S. that they will bite the hands that fed them?

What if Clinton’s job was to prevent American arms from slipping into the hands of terrorists? What if she secretly did the opposite of what her job required? What if she and the president and the other conspirators viewed themselves as being above the law? What if they thought the terrorist groups they were arming would overthrow the Gadhafi government in Libya and the Assad government in Syria? What if they believed those revolutions would be greeted with cheers in the West? What if they hoped the cheers would be for them?

What if their goal of regime change succeeded in Libya, and yet the result was chaos? What if under Col. Gadhafi Libya had been a stable U.S. ally? What if today there is no central government in Libya and it is ruled by gangs and tribes and militias?

What if the American assistance to Syrian rebels became known to the Russians? What if that knowledge prompted Russian President Putin to help his ally, President Assad of Syria? What if the American and Russian introduction of heavy military hardware into the Syrian civil war has resulted in prolonged war and more deaths of innocents and destruction of property, not less?

What if one of the terrorist groups that received American arms from this scheme attacked the American consulate in Benghazi, Libya, because it wanted more arms from the U.S. and it knew arms were stored there? What if that attack killed U.S. Ambassador to Libya Chris Stevens and three of his colleagues? What if this was a nightmare scenario for the conspirators? What if the conspirators now fear that the truth of their plot will become known?

What if the tragedy at Benghazi was unwelcome but not unforeseen? What if the conspirators knew of the risks to innocent lives attendant upon breaking the law by giving arms to madmen? What if members of Congress who were kept in the dark about the arms-to-terrorists scheme were outraged over Benghazi? What if leaders of the House of Representatives, some of whom were conspirators, formed a committee to investigate how the murder of Stevens came about?

What if some members of that committee already know that Stevens and the others were murdered with U.S. weapons illegally given to U.S. enemies secretly by U.S. government officials? What if the stated purpose of the committee -- to seek the truth about Benghazi -- is not the true purpose? What if the real purpose of that committee is to suppress the truth so that the president and Clinton and the other conspirators do not get indicted? What if the truth is the last thing the conspirators want to see come out?

What do we do about lawless government by secrecy? What do we do about government officials who act as if they are above the law? What do we do if one of them lives in the White House and controls all federal prosecutions? What do we do if another of them is presently on her way there?

*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.