'The Statute of Limitations Will Start Running Anew'

J$P Instant Transcript! The Judge tells Bill O'Reilly how Deep Throat could still be charged with a crime.

From The O'Reilly Factor, May 2 2005:

BILL O'REILLY [FOX NEWS]: With us now, Judge Andrew Napolitano, author of the book Constitutional Chaos, who does believe [Mark] Felt broke the law. So you don't like this guy?

JUDGE ANDREW NAPOLITANO [FOX NEWS]: Well, it's not a matter of whether or not I like him. But in his own words, in his own trial for civil rights violations--for which he was convicted when he supervised FBI agents breaking into the homes of the Weather Underground--

O'REILLY: We talked about the hypocrisy, yeah.

NAPOLITANO: --he said on the witness stand that he believed that in an emergency situation the FBI could suspend the constitution, forget about search warrants, forget about the 4th amendment, and allow FBI agents to break into homes, if the homes being broken into belonged to radicals or bad guys. That shows me someone who believes he's above the law. Now, there is a litany of statutes which he may have violated. But we start with the proposition that an FBI agent is sworn to uphold the law, to risk his own life to uphold the law--

O'REILLY: Well he got convicted. He got convicted and pardoned by Reagan for these black bag jobs, and they were breaking into radicals in the 60s homes and all this.

NAPOLITANO: Same crime that the Watergate burglars committed!

O'REILLY: We pointed that out. The hypocrisy is off the chart. But right now you got a 91-year-old guy who wants money. And he says he wants it for his family. We believe that, I think that--

NAPOLITANO: He better be careful where he gets the money. If he writes a book, God bless him. He's got a right to write the book, and I'll read it, you'll read it, a lot of people will want to read it.

O'REILLY: I won't read it. I won't read it.

NAPOLITANO: Well, it's an interesting story. If he accepts money from Woodward and Bernstein today, as his daughter asked Woodward and Bernstein publicly to do, that's the second half of a bribe.

O'REILLY: Really?

NAPOLITANO: First half is do something inconsistent with your oath as an officer of the government, which he did.

O'REILLY: Which was what?

NAPOLITANO: Passing secrets to a newspaper reporter.

O'REILLY: How did that violate the oath?

NAPOLITANO: The oath is to keep secret information obtained in a criminal prosecution until there's an indictment and it has to come out in the courtroom. He took an oath to do that. So it's malfeasance in office. It's passing secrets without authorization to do so, though we know he believes he's above the law. If he did it for profit, it's bribery. So here's the theory. Bribery requires malfeasance in office, corrupting your office, in return for a benefit. He corrupted his office in 1973, when instead of giving information to the prosecutors, he gave it to the press. If he accepts money now, that's the second half of the bribe. The statute of limitations, which is five years, will start running anew if Woodward and Bernstein pay him.

O'REILLY: Now, so you can be bribed for something 30 years later. That's very interesting.

NAPOLITANO: Absolutely, if the second half of the bribe is committed now.

O'REILLY: No prosecutor would have the cajones to do that.

NAPOLITANO: Because he's 91 years old, he's not all there, and even though I abhor what he did, he is a mythical figure now in American history.

O'REILLY: Do you really? All right, [Dick] Morris thinks he's a hero, and you abhor what he did.

NAPOLITANO: Sure. He set a pattern that I hope no FBI agent follows. Which is, instead of passing information about the bad guys--whether they are CIA agents, other FBI agents, the Attorney General, or the President--on to your superiors, you pass it on to the press. That's wrong.

O'REILLY: All right, but your top superior is a crook, Mitchell, who was indicted, all right, so he's a crook. L Patrick Gray, your immediate superior, is appointed by Nixon, who's the guy you're investigating. So as we said last night, you know what happens to FBI agents who go against the prevailing wisdom. They're in Fargo, and they're destroyed. This guy knew that would happen.

NAPOLITANO: OK, but he had a special prosecutor that he could have gone to. By delaying, impeding, or preventing information from going to the special prosecutor, he breaks the law.

O'REILLY: All right, let me ask you this question. If he had gone to the special prosecutor at the time--

NAPOLITANO: Instead of--

O'REILLY: Who was it? Sirica, right?

NAPOLITANO: No, Sirica was the Judge. The special prosecutor initially--

O'REILLY: Was Cox.

NAPOLITANO: --was Archibald Cox, ultimately Leon Jaworski. Felt served as both their attorneys.

O'REILLY: Say he had gone around L Patrick Gray and John Mitchell.

NAPOLITANO: That would have been an act of a hero.

O'REILLY: So, but he would have been fired, he would have been vilified, he would have been torn to pieces, his family would have been attacked. Right?

NAPOLITANO: But it wouldn't have broken the law. Instead he breaks the law, by taking that information and leaking it to the press.

O'REILLY: All right, OK, but that's a lot to think about. You're going to be destroyed, you're going to lose your job, your family's going to be torn apart. That's a lot to think about.

NAPOLITANO: How much does he believe in what he was doing?

O'REILLY: Not much, because he was a black bag guy. He did exactly what--look, I think the guy's a hypocrite. I don't think he's a hero. But I understand why he did what he did.

NAPOLITANO: You know he was very bitter that Nixon didn't make him the head of the FBI--

O'REILLY: I know, we pointed all that out.

NAPOLITANO: --and yet he called Nixon as his chief witness in the criminal case. And former President Nixon told the jury that the FBI is allowed to go around the constitution. And the jury rejected it.

O'REILLY: Right. All right, so he's not going to be charged, we know that. But he could be, if he takes money.

NAPOLITANO: Absolutely.

O'REILLY: All right, Judge. Thanks very much; we appreciate it.

posted: Thu - June 2, 2005 at 08:48 PM       j$p  send