Politics and the Law

After making an ironclad case for Hillary Clinton to be criminally charged for mishandling classified information, FBI Director James Comey announced he would not recommend that the Justice Department move to prosecute her. Comey offered the rationale that the FBI found no evidence that Clinton intended to violate laws relating to the handling of classified materials, even though the statute does not require intent. As a consequence, he asserted, “no reasonable prosecutor” would charge her. It turns out that one of those unreasonable prosecutors is none other than Rudy Giuliani. He can be seen on Morning Joe  discussing this at some length. Please see the video below.


After Comey announced he would not recommend prosecution, he proceeded to describe in excruciating detail the long list of actions Hillary Clinton took and the lies she told to cover up her malfeasance. The New York Times weighed in and  editorialized that Comey was right both on the legal issue and on his public rebuke of Hillary Clinton’s behavior. That counts as the surest sign that Comey got it wrong on both counts.


Let’s take the second part first.

Comey’s editorializing was flat-out improper. The FBI is an investigative agency. It does not make prosecutorial decisions. His job is to make a recommendation to the Attorney General (AG). His recommendation should be based on the evidence. If, in the FBI director’s opinion, there is insufficient evidence to seek an indictment, the matter should end there. Since a person is presumed to be innocent until proven otherwise, the FBI Director has no business going before the Washington press corps to present a a slew of accusations against that person unless those accusations are contained in an indictment. When he did so, the FBI director abused his office.


And he did it for a reason. He knows she is guilty as sin. This was his way of trying to protect what is left of his tattered reputation after caving in to political pressure.


Past Cases


Now let’s take a quick look at a past case. In spite of the fact that the statute only requires “gross negligence” and not criminal intent to establish criminal liability, Comey insisted that intent was an important, if not crucial factor. So he has a lot of explaining to do. Particularly with respect to the case of Bryan Nishimura.


The case of Nishimura is right on point. In 2007 and 2008 Nishimura, a reservist and an engineer in the U.S. military, was deployed to Afghanistan. There he placed copies of classified information on his laptop. Prosecutors say he took the materials with him off base in Afghanistan, and then took them home with him after his deployment ended. The FBI searched his home in 2012 where they found classified and unclassified military records in both hard and soft form. According to the FBI’s own website, the FBI found no evidence that Nishimura intended to distribute classified information to unauthorized personnel.


Nishimura pleaded guilty to unauthorized removal and retention of classified materials. A judge fined him $7,500 and ordered him to surrender his security credentials. He was placed on probation for 2 years and told never to seek a security clearance again. His attorney, William Portanova, said the violation was technical and unintentional, but the DOJ thought it needed to punish him “to make its point”. A point apparently lost on James Comey and Hillary Clinton.


Loretta Lynch: How I Got My Job Through the New York Times


Let’s put the whole “tarmac summit” in context. We now know that Bill Clinton took extraordinary measures to “accidentally” bump into Lynch. (See the story at this link for details.) And he clearly did so because he had a lot more to talk about than golf and grandkids. Like tying up loose ends. Perhaps he asked her if she liked being Attorney General.


And lo and behold, in a July 3 New York Times story, Patrick Healy reports, “…Democrats close to Mrs. Clinton say she may decide to retain Ms. Lynch, the nation’s first black woman to be Attorney General, who took office in April 2015”. That ought to make sure that Lynch keeps the career prosecutors at the Justice Department in line. Let’s not forget that, Comey notwithstanding, it still remains the AG’s call on whether or not to prosecute.



So let’s recount how we got here. As far back as April of 2016 President Obama was already opining that while Hillary Clinton had been “careless” she had not endangered national security. This, while the investigation was ongoing, allowing him to  signal his preferred outcome. Then AG Lynch meets alone with Bill Clinton, whose wife is the target of the investigation. Shortly thereafter, the FBI conducts its final interview with the Hillary Clinton, the subject of the investigation. Then the Director of the FBI publicly makes the case that Hillary Clinton committed all the acts needed for an indictment, but declines to recommend one because she was merely “careless”. But it is AG Lynch, who still has responsibility for making the ultimate decision. To make sure she stays on the team, she has re-appointment in a future Clinton Administration dangled before her through a New York Times story that quotes anonymous senior Democrats.


Thus far there has been little objection to this coming from progressive quarters. They pretend to believe that no criminal law was violated. The house organs of progressive politics have gone further. Both the Washington Post and the New York Times have applauded the refusal to recommend indictment; the Times also cheered the Comey scolding. Why bother with the rule of law when a little theatre will do instead? That progressives have fallen in line is not in the least bit surprising. At the end of the day, progressive ideology necessarily leads back to a variation of Louis the XIV’s famous “L’Etats, c’est moi”.





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