Andrew Napolitano

Napolitano is anti-abortion and holds that abortion "should be prohibited."[12] He reasons that while a woman has a natural and undeniable right to privacy in her personal choices, the rule of necessity causes the right to life of the fetus, which he believes to begin at conception, to take priority for the duration of gestation. He believes the Supreme Court's ruling on interracial marriage in Loving v. Virginia (1967) set a precedent that would also require state recognition of same-sex marriage.[13] He opposes capital punishment, saying, "I don't believe that the state has the moral authority to execute."[14] He is a believer in the separation of Church and State.

With respect to both presidents Bush and Obama and their handling of civil liberties in the War on Terror, Napolitano is a strong critic. In both his scholarly work, appearing in the New York University School of Law Journal of Law and Liberty, and in his book Suicide Pact, he criticized the actions of both presidents and their parties with respect to torture, domestic spying, unilateral executive action and encroachments on political power.

In February 2014, Napolitano expressed disdain for Abraham Lincoln on Fox News, saying, "I am a contrarian on Abraham Lincoln." Slavery in the U.S., according to Napolitano, while one of the most deplorable institutions in human history, could have been done away with through peaceful means which would have saved the bloodiest conflict in American history. At the same time, he also argued that states in which slavery was legal did not secede out of fear of abolitionism, asserting that "largely the impetus for secession was tariffs," which most Civil War historians dispute.[15] In his book Suicide Pact, he focused his criticism of Lincoln on the precedent set by his specific constitutional violations, such as his unilateral suspension of the right to habeas corpus and his institutionalization of military commission systems for civilian crimes.

After the release of the Mueller Report on Russian interference in the 2016 election, Napolitano said the report showed that Trump engaged in numerous instances of obstruction of justice, although the report deliberately refused to make a firm conclusion about obstruction of justice accusations.[16]

Napolitano subscribes to a natural law jurisprudence that is influenced by a respect for originalist ideas and methods. He has expressed strong sympathies with the Randy Barnett new originalist vein of originalism, as it incorporates the natural law through an original understanding of the Ninth Amendment. He has published a favorable column on Barnett's idea of a constitutional presumption of liberty.[17]

Napolitano's philosophy generally leans towards strong originalism while not accepting the limitations of the older types of originalism espoused by Robert Bork and Justice Antonin Scalia with respect to the Constitution's open-ended provisions like the Ninth Amendment. He finds such limitations too restricting on a judge's ability to apply the natural law to decide cases where the liberty of the individual is at stake. He is a strong believer in economic liberties and argues that Lochner v. New York was overruled in error in the West Coast Hotel case, as the Contracts Clause and the Fifth and Fourteenth Amendment due process clauses protect a sphere of personal economic liberty.[18]

In September 2015, Napolitano was the featured speaker at a conference held by the Republican government watchdog group Judicial Watch.[19]

According to The New York Times, Napolitano "has a taste for conspiracy theories".[20] The Washington Post has described him as a "purveyor of conspiracy theories."[21]

Napolitano has promoted 9/11 conspiracy theories. In 2010, he said, "it's hard for me to believe that it came down by itself... I am gratified to see that people across the board are interested. I think twenty years from now, people will look at 9-11 the way we look at the assassination of JFK today. It couldn't possibly have been done the way the government told us."[22][23]

On March 16, 2017, citing three unnamed intelligence sources, Napolitano said on the program Fox & Friends that Britain's top intelligence agency, Government Communications Headquarters (GCHQ), had engaged in covert electronic surveillance of then-candidate Donald Trump during the 2016 presidential campaign on orders from President Obama.[20] He said that by using the British intelligence apparatus, Obama would avoid leaving "fingerprints" that could identify the origin of this surveillance action.

In response to “Fox & Friends” host Brian Kilmead stating that Napolitano was claiming Trump’s phone was “wiretapped”, Napolitano denied actual physical tampering, instead citing the agency has digital access to digital information.

In a column on the Fox website, he wrote that GCHQ "most likely provided Obama with transcripts of Trump's calls. The NSA has given GCHQ full 24/7 access to its computers, so GCHQ—a foreign intelligence agency that, like the NSA, operates outside our constitutional norms—has the digital versions of all electronic communications made in America in 2016, including Trump's."[24] One of his sources was former Central Intelligence Agency (CIA) officer Larry C. Johnson, who later told CNN that Napolitano had misrepresented the statements he made on an online discussion board. Johnson, citing two anonymous sources, claimed that the GCHQ was passing information on the Trump campaign to U.S. intelligence through a "back-channel", but stressed that the GCHQ did not "wiretap" Trump or his associates and that alleged information sharing by the GCHQ was not done at the direction of the Obama administration.[25][26]

On March 16, White House Press Secretary Sean Spicer repeated Napolitano's claim at a White House press briefing. The following day, GCHQ responded with a rare public statement, saying, "Recent allegations made by media commentator Judge Andrew Napolitano about GCHQ being asked to conduct 'wiretapping' against the then president-elect are nonsense. They are utterly ridiculous and should be ignored."[27] A British government source said the allegation was "totally untrue and quite frankly absurd".[28] Admiral Michael S. Rogers, director of the National Security Agency, said he has seen nothing to suggest that there was "any such activity," nor any request to do so.[29] Former GCHQ director David Omand told the Financial Times that "The suggestion that [Barack Obama] asked GCHQ to spy on Trump is just completely barking—that would be evident to anyone who knew the system."[30]

The claim started a diplomatic dispute with Britain. Tim Farron, the Liberal Democrat leader in Britain, said, "Trump is compromising the vital UK-US security relationship to try to cover his own embarrassment. This harms our and US security."[28] The Telegraph said that two U.S. officials had personally apologized for the allegation.[28] The British government also said that the U.S. government promised not to repeat these claims.[30][31] The White House denied reports that it had apologized to the British government, saying Spicer was merely "pointing to public reports" without endorsing them.[28][32]

On April 12, 2017, The Guardian reported that GCHQ and other European intelligence agencies had intercepted communications between members of the Trump campaign team and Russian officials and shared the intelligence with their U.S. counterparts. The communications were obtained through "incidental collection" as part of routine surveillance of Russian intelligence assets, not from a targeted operation against Trump or his campaign.[33][34]

Fox News distanced itself from Napolitano's claims and suspended him from contributing to the network's output, according to the Los Angeles Times and the Associated Press.[35] He returned on March 29 after a nearly two-week absence, but continued to support his earlier claims.[36]

Napolitano has made numerous claims about the Civil War which are rejected by historians. These claims include that the Civil War was Abraham Lincoln's war by choice, that slavery was dying anyway, that Lincoln could have freed the slaves by paying the slaveholders and that Lincoln armed the slaves.[37][38] More specifically, in a Daily Show segment, he said that Lincoln started the war "because he wanted to preserve the union, because he needed the tariffs from the southern states," a claim rejected by a panel of three distinguished historians of the Civil War: James Oakes, Eric Foner and Manisha Sinha.[38] Napolitano argued that Lincoln could have solved the slavery question by paying slaveholders to release their slaves, a method known as compensated emancipation, thereby avoiding war.[37] Lincoln did offer to pay to free the slaves in Delaware, but the Delaware legislature rejected him.[37] He also asserted that Lincoln attempted to arm slaves, but two prominent historians of the Civil War said they had never heard of such an effort and PolitiFact rated the claim "pants-on-fire".[37][39] He has asserted that slavery was dying a natural death at the time of the Civil War, a claim that Eric Foner on the Daily Show panel rejected. Foner said, "Slavery was not only viable, it was growing ... This idea that it was dying out or was going to die out is ridiculous."[38]

Napolitano has also said that Lincoln enforced the Fugitive Slave Act "until the Civil War was over" by sending escaped slaves back to their owners. PolitiFact notes that "while there were cases when Lincoln enforced the law during the Civil War, he did so selectively when he thought it would help keep border states in the Union fold. When it came to slaves from Confederate states, the weight of the government actions fell heavily on the side of refusing to return escaped slaves." Furthermore, his claim that Lincoln enforced the act "until the Civil War was over" was indisputably false, as the Fugitive Slave Act was repealed in June 1864, more than 10 months before the end of the war.[37]