Too Big to Jail
"There should be no bank too big to fail and no individual too big to jail," Hillary Clinton declared in one of the Democratic debates. Well, what about the Democratic candidate for president?
Since by now every word out of Mrs. Clinton's mouth is b'chezkas sheker (assumed to be untrue), it should perhaps be no surprise that the above statement also turned out to be false, as description if not prescription.
FBI director James Comey stood before the press last week and thoroughly eviscerated every Clinton talking point about her emails and private server. His presentation was itself highly unusual. The FBI is the investigative branch of federal law enforcement, not the prosecutorial branch. Comey is no longer the U.S. Attorney for the South District of New York. Announcement of the decision not to prosecute Clinton for "gross negligence" in her handling of classified information should have come from the Justice Department not the FBI.
Comey, however, clearly wanted the American public to know that Hillary Clinton is as guilty as sin. Her first line of defense for conducting from one email account both government and private business – not that the distinction is terribly relevant with respect to the Clintons, which is undoubtedly why she set up a private server in the first place – was that she thought it would be more convenient to carry only one mobile device. Nonsense said Comey, she regularly used multiple mobile devices. Something other than convenience lay behind the decision to set up a private server and eschew normal State Department channels for communications.
Clinton assured the American public repeatedly that she had turned over all her work-related emails as Secretary of State, albeit only after being asked and several years after she was required to do so. Not so, said Comey. The FBI recovered over 2,000 work-related emails that were not turned over. And that's only what they were able to recover, after her lawyers at Williams and Connolly had done everything they could to obliterate the email record and render it incapable of recovery by forensic means. The founder of Williams and Connolly, Edward Bennett Williams, was one of America's greatest criminal defense lawyers. Many of the attorneys in the firm bearing his name should require his services (were he still alive). to defend against obstruction of justice charges
"I never received nor transmitted material marked classified at the time," Mrs. Clinton repeatedly claimed. Both untrue and irrelevant, said Comey. Of the 30,000 emails returned to the State Department, "110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received," Comey reported. And of those eight contained information that was top secret, the highest classification, a fact that was either noted on the document itself or immediately obvious to any sentient being.
Well, even if maintaining a private server to conduct state business was highly irresponsible, at least no harm resulted, Clinton offered as a fallback position. The system had not been hacked, Not so fast, said Comey. For one thing, the FBI determined that hostile actors gained access to the accounts of a number of people with whom Madame Secretary communicated, and would have known of her email. In addition, it was widely known that she conducted business from a private email account.
Moreover, she "used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries." It is entirely possible, Comey concluded, that hostile actors gained access to Secretary Clinton's personal email account, and that they could have done so without being detected.
Another talking point: Perhaps with benefit of hindsight Clinton was a bit careless, but what she did was permitted by State Department rules. That claim was always laughable, just a statement that as Secretary of State Clinton permitted herself to do what she wanted. Lesser diplomats were fired from their posts during her tenure for using private email to conduct government work.
"Any reasonable person" – and surely we aspire to a reasonable president – Comey summed up, "should have known that an unclassified system was no place for the conversations Clinton was having. Indeed because the server was not even guarded, her communications, he pointed out, would have been more secure had she been using Google.
Comey thus demolished every Clinton talking point, and showed most of them to be brazen lies to boot, except for one. In recent weeks, various Clinton surrogates and their echo chamber in the media have fallen back on the claim that there was no criminal intent. But the relevant statute speaks of "gross negligence," not wantonly handing over classified secrets to the enemy.
Just as manslaughter statutes exist to deter people from acting with wanton disregard for the lives and safety of others, even where there was no intent to kill, so does the relevant statute seek to deter "gross negligence" in the handling of government secrets. There are other statutes that deal with willfully transferring classified material with the intention to harm the United States.
Secretary Clinton and her associates "were extremely careless in their handling of very sensitive, highly classified information," according to Comey. The line between "extremely careless' and the statutory requirement of "gross negligence" is a distinction without a difference, as the lawyers say. Low level types, former attorney-general and federal judge Michael Mukasey pointed out, have been prosecuted for far less – putting classified documents in the garbage rather than shredding them, leaving them inadvertently in a desk drawer, taking them home in a gym bag -- without any showing of criminal intent.
"Ignorance of the law is no excuse," is a legal maxim well-known to even non-lawyers. Whether or not Clinton "intended to violate laws governing the handling of classified information" is irrelevant, unless the statute requires such willful intent. And it does not.
The only remaining question is why did Comey, who is universally known as a straight-shooter, back off from recommending criminal charges on grounds that were easily trashed by Mukasey and his long-time friend and former colleague in the U.S. Attorneys Office Andrew McCarthy.
Karen McQuillan finds a hint in his statement, "We frequently . . . engage in productive conversations with prosecutors about what resolution may be appropriate, given the evidence," and concludes that the Department of Justice had made clear that they would not prosecute. The opportunity to excoriate Clinton was the bone tossed Comey in recompense.
I agree, however, with Charles Krauthammer that more likely Comey felt it was not his role as director of the FBI to determine the outcome of the upcoming election, and that the most he could do was to lay out in black and white Mrs. Clinton's disregard of national security. Perhaps if the alternative to Clinton had not been Donald Trump, he might have felt differently. In that case Trump has proven a double blessing to Clinton. Not only is he the only conceivable Republican candidate she can beat – according to a Rassmussen poll 57% of voters would like to see her prosecuted – but he also served as a get-out-of-jail card.
On that reading Comey decided on institutional grounds, like Chief Justice John Roberts, in the Obamacare health mandate case. After rejecting the health care mandate as not within Congress's power under the Commerce Clause, Roberts offered a tortured reading to save the mandate as a tax – a reading that flew in the face of the entire legislative history. Why? Because he did not think an unelected Supreme Court should decide such a momentous and divisive political issue. By the same token, Comey decided to lay out the facts and let the voters decide whether they want a president who would be automatically denied future security clearance for her previous conduct.
But in so deciding, Comey proved that there are some people who are too big to jail.
A Rare Ability to Reconsider
David French gained his fifteen minutes of fame last month, when Weekly Standard editor Bill Kristol, briefly floated his name to be the standard bearer for the #NeverTrump forces as their presidential candidate.
Kristol was right that French would be a far better president than either of the two despicable human beings currently contesting for the position. But French was also right that despite his impressive resume – major in the U.S. army, decorated veteran of Operation Iraqi Freedom, Harvard Law School graduate, author of a New York Times no. 1 best seller – he was not well-enough known to even serve as a credible protest candidate.
But if Kristol did nothing more than to call added attention to French's writing in the National Review, he performed an important public service, for French is not only a fine writer, but a person of great depth. The latter became evident in a piece last week on racial attitudes.
French did something so rare that it deserves to be noted: He changed his mind in light of contrary evidence. Most of us do everything possible to avoid any information or opinion that might cause us to reexamine our opinions. Today's college students, with their contempt for traditional notions of free speech and the value of being exposed to diverse viewpoints, reflect our own uncomely id.
French noted that there is a wide divergence of opinions between whites and blacks about race relations in the United States, though both groups agree that they have grown worse under a president whose advent was supposed to mark the disappearance of race as an issue. Blacks are much more likely to think that racism is still a serious problem and to say that they have been the victims of racism. Whites are more likely to see racism as a minor problem, and to attribute black perceptions to factors other than their actual experience.
Until six years ago, when he adopted a black daughter, French writes, he pretty much subscribed to the more common white view (as would I). But over the last six years, he has experienced more racially charged moments than in his previous 41 years. Not with respect to his evangelical Christian community in eastern Tennessee; they have embraced his daughter. (I can attest that I have never seen a more color-blind or racially mixed group than the evangelicals with whom I've taken flights to or from the Holy Land.) But other neighbors have not been shy about expressing their wonderment at the adoption of a black child.
French's concluding words deeply moved me because they express an attitude that is so rare today: "I'm humbled. Experience has changed my perception. May it also increase my understanding and bring me closer to truth."
Related Topics: American Government & Politics, Intellectuals, Social Issues
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