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Judge Napolitano · Brian Thomas

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  Speaker 1: Or eight thirty two Pity by krc DE Talk Station.
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  Speaker 1: Had a very happy Wednesday to he always made an
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  Speaker 1: extra special when we get to benefit of the logic,
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  Speaker 1: reason and sound constitutional policy. From Judge Ennenapolitano, Judge of Politano,
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  Speaker 1: Welcome back to the morning show. My friend is always
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  Speaker 1: great to have you on the program.
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  Speaker 2: What's with ingram today? Am my chopped liver no I made?
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  Speaker 1: Who knows what he's thinking and not thinking about. We
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  Speaker 1: just had some really really really bad weather and flooding,
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  Speaker 1: and we got worse coming today and I think he's
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  Speaker 1: probably distracted by all the traffic issues that are out
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  Speaker 1: there because of the inclement weather.
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  Speaker 3: But who knows understood he's able to keep a lot
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  Speaker 3: of balls in the air at the same time, and
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  Speaker 3: I love.
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  Speaker 2: Him for that.
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  Speaker 1: That is true, and well we might have been saved
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  Speaker 1: from some inane ramblings because sometimes he gets it right
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  Speaker 1: and sometimes he kind of goes off on a sidetrack,
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  Speaker 1: and we always question his sanity a little bit. Judge, Hey,
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  Speaker 1: I start off as I always do. I'll compliment you
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  Speaker 1: on your column The Right to be Left Alone, which
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  Speaker 1: I really appreciate, But can I ask you a question first?
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  Speaker 1: On a case called Immigration Nationalization Service versus Chada. And
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  Speaker 1: here's the reason I want to ask you about. I
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  Speaker 1: want to put you on the spot. But Wayne Allen
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  Speaker 1: Root was interviewing Donald Trump the other day, and I
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  Speaker 1: had heard this rumor from one of my listeners, going
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  Speaker 1: back at least a week, if not more, the rumor
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  Speaker 1: that he would declare a national security emergency in order
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  Speaker 1: to delay the November election in order to get the
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  Speaker 1: Save Act passed. Now, I think that will be a
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  Speaker 1: political dagger in the heart to the Republican Party if
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  Speaker 1: he did it. So can a president unilaterally declare a
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  Speaker 1: national emergency and stop the election from happening when election
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  Speaker 1: day is spelled out precisely in the Constitution the United
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  Speaker 1: States of America, Judge of Politano.
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  Speaker 2: Short answer is no.
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  Speaker 3: The longer answer is an emergency is defined in federal
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  Speaker 3: statutes as a sudden and unexpected economic or national security
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  Speaker 3: event that cannot be addressed by ordinary means. So he'd
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  Speaker 3: have to create some sort of a false flag to
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  Speaker 3: and persuade the American public and the courts that it
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  Speaker 3: was a genuine attack of some sort. But he can't
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  Speaker 3: delay the election because he wants to change the rules
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  Speaker 3: for it, and I agree with you. If he attempted
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  Speaker 3: to do that, goodbye, he landed up with two thirds
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  Speaker 3: of the Democrats controlling the Senate that will impeach him
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  Speaker 3: before Saint Valentine's Day.
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  Speaker 1: Yeah, thank you very much for backing me up on
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  Speaker 1: that conclusion, because that was the first reaction I had.
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  Speaker 1: You know, first off, was you have to amend the
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  Speaker 1: constitution to do that. Then this case came up where
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  Speaker 1: I guess Wayne Allen Root suggested that he does have
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  Speaker 1: an established precedent in this ins versus Chota case. But
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  Speaker 1: then the reality sets in, like, well, wait a second,
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  Speaker 1: you know what emergency could there be that would justify
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  Speaker 1: kicking the election day out? And how much damage would
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  Speaker 1: that do to the Republican So a lot on the
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  Speaker 1: latter question. And thank you for again for supporting my
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  Speaker 1: conclusion along those lines.
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  Speaker 3: So sure, I mean ions versus Chata allows him to
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  Speaker 3: declare an emergency at the border, doesn't allow him just
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  Speaker 3: to claire an emergency within the United States of such
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  Speaker 3: magnitude that people can't go to the polls.
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  Speaker 1: Thank you. You see, I didn't go back and read Shota,
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  Speaker 1: but I was reluctant to embrace Wayne Root's conclusions about
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  Speaker 1: what it meant perfect.
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  Speaker 2: We know Wayne.
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  Speaker 3: I think he's well intended and very much in the
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  Speaker 3: President's camp, but constitutional scholarship is not his thing.
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  Speaker 1: Very delicately put Judge the Polatano. Something that is in
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  Speaker 1: your Baillywick the Constitution United States of America, which I
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  Speaker 1: appreciate the outset quote in your op ed piece, the
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  Speaker 1: right to be left alone comes out tonight at midnight.
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  Speaker 1: Get a copy. Justice Lewis Brandei's point, the right to
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  Speaker 1: be left alone has to be one of the most
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  Speaker 1: important rights that we have, and I agree with that perception.
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  Speaker 1: But the right to be left alone isn't specifically spelled
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  Speaker 1: out in the Constitution. But you make a good argument
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  Speaker 1: about that in connection with the surveillance state. We live
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  Speaker 1: in more and more police departments getting these cameras, hooking
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  Speaker 1: up the ring doorbell systems, live literally in a twenty
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  Speaker 1: four to seven surveillance state, and you suggest that that's
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  Speaker 1: an assault on our individual rights.
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  Speaker 3: I also suggest that this is not being done by
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  Speaker 3: any legislative action. It's being done by police procurement. And
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  Speaker 3: something that changes the relationship between individuals and the state
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  Speaker 3: can only be done by public policy, by elective representatives,
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  Speaker 3: consistent with the Constitution. Now elsewhere in the piece, I
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  Speaker 3: argue that even legislative bodies can't authorize this, but at
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  Speaker 3: least they can debate this so that people know what's
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  Speaker 3: going on rather than their taxpayer dollars used to purchase
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  Speaker 3: these things, These cameras that are everywhere, which track where
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  Speaker 3: you go, which record who you are, which maintain records
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  Speaker 3: for we don't know how long, because the cameras have
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  Speaker 3: only been around for about eight to eighteen months, depending
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  Speaker 3: upon where you are in the United States. They track
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  Speaker 3: the records of people not accused of crime, not accused
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  Speaker 3: of wrongdoing, and who have done nothing to invite a
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  Speaker 3: governmental scrutiny. All of that violates the basic premise of
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  Speaker 3: the Fourth Amendment, which is the government can't start watching you.
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  Speaker 3: The government can't commence an investigation of you unless it
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  Speaker 3: has articulable suspicion. There is no articulable suspicion when the
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  Speaker 3: police do this. How many police have done it. Seven
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  Speaker 3: thousand American police departments have purchased these cameras. How many
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  Speaker 3: were authorized by a legislative body like a state legislature
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  Speaker 3: or a city or town council. It's an easy number
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  Speaker 3: to remember.
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  Speaker 1: Zero None is the argument made that because they have
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  Speaker 1: funded the purchase or acquisition of these, say, flock cameras,
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  Speaker 1: there's a task at a government approval of that, because
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  Speaker 1: they've authorized money that they can spend. And that's not
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  Speaker 1: quite good enough, is it.
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  Speaker 2: No, No, it's not good enough.
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  Speaker 3: And by the way, the word flock with a capital
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  Speaker 3: F in flock is the name of the manufacturer, but
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  Speaker 3: he may lose the right to use his name because
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  Speaker 3: it's becoming so common that all of these they're not
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  Speaker 3: all flock cameras because they're different manufacturers, but they're all
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  Speaker 3: now or most of them now are called flock cameras. No,
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  Speaker 3: the fact that police have spent this money does not
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  Speaker 3: mean that the legislative legislative body has authorized this. It
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  Speaker 3: can't authorize this because the violation of the Constitution. You
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  Speaker 3: can't put, at the risk of getting a little too philosophical, Brian,
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  Speaker 3: you can't put public safety and personal liberty in equipoise.
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  Speaker 3: They are not equal. They do not have the same
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  Speaker 3: moral and legal weight. Natural rights outbalance everything and can
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  Speaker 3: only be interfered with by due process. Stated differently, Your
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  Speaker 3: right to privacy can only be interfered with if a
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  Speaker 3: judge authorizes it pursuant to the Fourth Amendment, or if
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  Speaker 3: a jury finds you guilty of a crime and you
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  Speaker 3: go to a federal or a state prison, and you
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  Speaker 3: have no right to privacy. Short of that, your right
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  Speaker 3: to privacy is as natural and integrable to you as
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  Speaker 3: the fingers on your hands.
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  Speaker 1: Well, what of the argument and a phrase that I've
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  Speaker 1: used before, you have no reasonable expectation of privacy in public? Now,
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  Speaker 1: springing from the proposition, we'll have to assume for the
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  Speaker 1: sake of this question that all of these flock cameras
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  Speaker 1: or any other cameras hooked up the government system real
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  Speaker 1: time monitoring, are not within someone's home. The government hasn't
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  Speaker 1: snuck in and put one in your bedroom. But they
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  Speaker 1: are all in public places. If I walk around, somebody
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  Speaker 1: with a cell phone, can you know video camera me
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  Speaker 1: walking around? I have no expectation of privacy, says the law.
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  Speaker 1: Is there an argument there that this is a horse
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  Speaker 1: of a different color because it is all in public spaces?
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  Speaker 3: Well, it's a horse of a different color because it's
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  Speaker 3: done by the government. If I take a picture of
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  Speaker 3: you going into your home at the end of your
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  Speaker 3: workday is because you're in public, and I'm in public,
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  Speaker 3: and of course, by the way, I would love to
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  Speaker 3: be in Cincinnati and have a nice meal with you.
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  Speaker 2: Yeah, talking about this for years.
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  Speaker 3: We did it once and it was too long ago.
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  Speaker 3: It was. But if I did it, there is no
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  Speaker 3: wrong because you're in public. I'm in public, and the
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  Speaker 3: Fourth Amendment does not come into play. But if I'm
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  Speaker 3: a Cincinnati police officer and do it, he has to
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  Speaker 3: have articulable suspicion in order to take that picture of
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  Speaker 3: you because of where technology has brought us. Yes, the
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  Speaker 3: Supreme Court has said there is no expectation of privacy
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  Speaker 3: in public. But when you're driving in public and your
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  Speaker 3: mobile phone is on the front seat of your car
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  Speaker 3: and these cameras capture you the next time you're out there,
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  Speaker 3: they don't even have to capture your driver's license. They
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  Speaker 3: will know that it is you because of the signal
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  Speaker 3: sent by your phone. That is a level of intrusiveness
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  Speaker 3: never imagined by the Supreme Court. When it's said when
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  Speaker 3: you're standing in public, you have no expectation of privacy,
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  Speaker 3: you have an expectation that the government will not surveil
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  Speaker 3: you because of the Fourth Amendment. You do not have
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  Speaker 3: an expectation that your neighbor won't take a picture of you.
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  Speaker 2: The Fourth Amendment doesn't regulate your neighbor.
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  Speaker 1: And wasn't there a recent case on the geofence warrants
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  Speaker 1: where they literally grabbed every single cell phone that had
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  Speaker 1: ever connected to a singular cell tower in search for
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  Speaker 1: a criminal.
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  Speaker 3: Correct, And the Supreme Court said they need They can
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  Speaker 3: do it, but they need a search warrant to use
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  Speaker 3: the data.
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  Speaker 2: Look, the.
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  Speaker 3: Digital infrastructure is so sophisticated. This begins with a camera
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  Speaker 3: looking at your license plate. It ends with the government
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  Speaker 3: getting inside your mobile phone.
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  Speaker 1: Frightening stuff.
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  Speaker 2: Or well, I'll scare you a little bit.
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  Speaker 3: If you see an ice agent on the street, watch
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  Speaker 3: my hand. Don't wave like this. Because of he or
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  Speaker 3: she has the right software. It takes a picture of
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  Speaker 3: your hand. They can get inside your bank account.
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  Speaker 1: Yeah, fingerprint correct. We have our tech expert every Friday
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  Speaker 1: in the program, Dave Hatter, and he has warned us
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  Speaker 1: about using biometric identification because once it's out there, it's
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  Speaker 1: out there forever, and you can't change your fingerprints. Excellent point.
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  Speaker 1: Another point of data for the government to collect on
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  Speaker 1: us as they compile dossier's on every single human being
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  Speaker 1: on the planet. Judge and Neapolitano Judging Freedom of the podcast.
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  Speaker 1: Find it where you find your podcast? Geralde on today,
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  Speaker 1: I think you usually.
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  Speaker 3: Is oh yeah, Phil Gerally of three. Colonel Lawrence Wilkerson two.
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  Speaker 3: Colonel Lawrence Wilkerson is the United States a republic or
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  Speaker 3: an empire?
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  Speaker 2: Now?
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  Speaker 3: He spent his entire career in the Department of Defense,
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  Speaker 3: in the Department of State, and he's about to argue
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  Speaker 3: it's an empire, a failing empire.
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  Speaker 1: I kind of had a feeling that was the teas
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  Speaker 1: that you would put on the bottom of that a point.
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  Speaker 1: I enjoy the conversation. Listen to it today three pm.
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  Speaker 1: Find it online Judging Freedom, and tune in every Wednesday
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  Speaker 1: at eight thirty Here Judge in Atopolotown. It's always a pleasure,
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  Speaker 1: my friend. Good to have you on again.
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  Speaker 2: Thank you, Brian, all the best of you next week.