Just when we all thought – we finally got them, the Clintons, at least Hillary, that their lying, crooked ways have finally landed them in the frying pan. Justice will finally prevail we beamed.
And then, once again, the slippery Clintons, slithered out of prosecution.
We thought that it was quite strange that the President of the United States was scheduled to campaign with and for Hillary today, Tuesday, when she could be indicted for criminal activity. That was a sure sign the fix was in. Notice the sequence in the last few days Bill Clinton visits Attorney General Loretta Lynch in a private tête-à-tête on a plane on the tarmac. Within days and on the Friday of a long holiday weekend Hillary sneaks into the FBI to be personally interviewed. On the first day the holiday is over Obama is already pre-scheduled to campaign with Hillary.
FBI Director James Comey overstepped his bounds when he ruled that there would be no prosecution of Hillary. It’s not his call. He makes the case and then turns it over to the Attorney General who decides whether it is a case to be pursued. Comey cannot be cop and prosecutor, all in one. Of course, once Attorney General Loretta Lynch had compromised her objectivity by meeting with Bill Clinton it was necessary for the Administration, and we bet the President, to demand that he make the decision.
Perhaps, just as Chief Justice Roberts did not want to be the remaker of history with a ruling against Obamacare, FBI Director James Comey did n0t want to change a historical Presidential election.
Be sure to watch how Stefan Molyneux feels about the ruling in the video above.
There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.
Yet, Director Comey recommended against prosecution of the law violations he clearly found on the ground that there was no intent to harm the United States.
In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.
I would point out, moreover, that there are other statutes that criminalize unlawfully removing and transmitting highly classified information with intent to harm the United States. Being not guilty (and, indeed, not even accused) of Offense B does not absolve a person of guilt on Offense A, which she has committed.
It is a common tactic of defense lawyers in criminal trials to set up a straw-man for the jury: a crime the defendant has not committed. The idea is that by knocking down a crime the prosecution does not allege and cannot prove, the defense may confuse the jury into believing the defendant is not guilty of the crime charged. Judges generally do not allow such sleight-of-hand because innocence on an uncharged crime is irrelevant to the consideration of the crimes that actually have been charged.
It seems to me that this is what the FBI has done today. It has told the public that because Mrs. Clinton did not have intent to harm the United States we should not prosecute her on a felony that does not require proof of intent to harm the United States. Meanwhile, although there may have been profound harm to national security caused by her grossly negligent mishandling of classified information, we’ve decided she shouldn’t be prosecuted for grossly negligent mishandling of classified information.
I think highly of Jim Comey personally and professionally, but this makes no sense to me.
Finally, I was especially unpersuaded by Director Comey’s claim that no reasonable prosecutor would bring a case based on the evidence uncovered by the FBI. To my mind, a reasonable prosecutor would ask: Why did Congress criminalize the mishandling of classified information through gross negligence? The answer, obviously, is to prevent harm to national security. So then the reasonable prosecutor asks: Was the statute clearly violated, and if yes, is it likely that Mrs. Clinton’s conduct caused harm to national security? If those two questions are answered in the affirmative, I believe many, if not most, reasonable prosecutors would feel obliged to bring the case.