J$P Instant Transcript! Judge Andrew Napolitano tells Mr Bill O'Reilly why Rush Limbaugh is "absolutely in the right".

From The O'Reilly Factor, May 2 2005:

BILL O'REILLY [FOX NEWS]: The battle over Rush Limbaugh's medical records. The Florida Supreme Court has let stand a judge's ruling that Palm Beach County prosecutors should have access to Mr Limbaugh's medical history because of an investigation into Limbaugh's use of prescription drugs. The ACLU has sided with the conservative commentator, saying a person's medical records should not be given to prosecutors unless there's a specific reason why. But three judges appointed by a Democrat and one Republican-appointed judge disagree. So right now Limbaugh's records are in play. With us now to analyze the situation, Fox News Senior Judicial Analyst Judge Andrew Napolitano, the author of the best-selling book Constitutional Chaos. All right, you've analyzed it; we asked you to analyze it over the weekend, the decision. Political decision?

JUDGE ANDREW NAPOLITANO: We thought it was going to be a political decision, because Rush Limbaugh is so controversial. But I don't think it was. Of the three dissenting judges--remember, the Supreme Court of Florida, seven justices decided not to hear the appeal, effectively putting into the play the Appellate Court decision which said his medical records are fair game.

O'REILLY: All right, so it was four to three.

NAPOLITANO: Correct. The three dissenters are an appointee of Jeb Bush, an appointee of the prior Governor Lawton Chiles and Jeb Bush--this appointment was made after Jeb was elected but before he was inaugurated--and the Chief Justice of the Florida Supreme Court, a very, very liberal jurist, Chief Justice Pariente.

O'REILLY: She sided with the ACLU.

NAPOLITANO: She sided with the ACLU and with Rush. In my opinion, it was not political; it was ideological. She's in favor of upholding the right to privacy, guaranteed in the Florida constitution.

O'REILLY: Well, is it a right to privacy issue here? Is Limbaugh in the right?

NAPOLITANO: Limbaugh is absolutely in the right. The Florida constitution imposes on anyone wanting anyone else's private records, whether they're financial or medical, the obligation of demonstrating why, and giving the person whose records they seek the opportunity to contest this. When Limbaugh was told that his records had been seized, he asked for a contest. He asked to present evidence challenging the credibility of the people on whose testimony the judge relied when he signed the search warrant. The judge wouldn't give it to him. To this day, he has never been allowed to have a hearing on whether or not the state is entitled to his medical records.

O'REILLY: Does the constitution of Florida say you are entitled to a hearing?

NAPOLITANO: The statutes written in furtherance of the constitution say you're entitled to a hearing.

O'REILLY: Then why would four Supreme Court justices not rule that way?

NAPOLITANO: I think they don't want to get involved until after Rush is charged. Remember, he's not been charged with a crime.

O'REILLY: He's not been charged with anything, right.

NAPOLITANO: This case is not a State vs Limbaugh. This is Limbaugh vs the State. He has sued the state to stop them from seizing his records. But this is very bad, Bill.

O'REILLY: But they already seized them but they're sealed, right?

NAPOLITANO: Correct. If they can do this to a public figure whose ability to hire lawyers and challenge the state is almost limitless, they can do this to anybody. And the laws in Florida say they can't.

O'REILLY: Now why would the state want to do that, I mean why would they want to seize his medical records on a beef that's, a prescription drug beef that's a low level beef--

NAPOLITANO: It's so-called doctor shopping. I think they're after him because of who he is.

O'REILLY: Really? Do you really believe that?

NAPOLITANO: I do. The prosecutor is a Democrat, a liberal Democrat, very active in politics, was very active in the Gore vs Bush fiasco of 2000--

O'REILLY: So Limbaugh's right when he says that?

NAPOLITANO: Limbaugh is right that he is in political cross hairs, and it's wrong that that should happen to anybody, Limbaugh or anyone else. Because the law should be enforced based upon the government's needs, not on the basis of enhancing the career of the prosecutors.

O'REILLY: Would the government need the medical records to prove there was some kind of wrongdoing in the prescription drug area?

NAPOLITANO: Oh absolutely they would. So the government needs the medical records before they can charge him. But the government like everybody else has to follow the Florida statute which says: Mr O'Reilly, we want your medical records. We're going to hold a hearing as to whether or not we're entitled to them. They refused--

O'REILLY: I see. So Roy Black, who is Limbaugh's primary attorney in this, should have the chance to say to a hearing in front of a court, a judge, look, you don't need this records. This is what my client took the drugs for.

NAPOLITANO: Correct, correct. And the person on whose testimony you're relying is not believable, and here's why. Three times he's asked for that hearing--

O'REILLY: And why would you want his whole records? Why not just the prescription records? Why would you want his whole records?

NAPOLITANO: Well, the government probably know what the records look like at the time they go for them, so they ask for everything. So now they have--

O'REILLY: It's a fishing expedition.

NAPOLITANO: It's abs--they have everything about his medical history and they're not entitled to any of it.

O'REILLY: That's wrong. That's wrong. All right Judge, thanks very much; we appreciate it. Keep you posted on the story.