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As to the case in point, FBI Director James Comey is not a prosecutor: He is an investigator and, as such, does not have prosecutorial discretion to exercise. His responsibility is to merely report facts found. It is the job of the attorney general — conveniently missing in action — to apply the law to those facts and to decide whether to present them to a grand jury or to file charges directly (i.e. file an “information”). Notwithstanding this, prosecutors and investigators both do have clout in suggesting administrative penalties to other officials, whether or not a prosecution takes place. After recitation of Hillary Clinton’s “carelessness,” for example, a “reasonable prosecutor” would almost certainly have suggested that her security clearance be lifted. Even if they don’t “get you” criminally, it is in the nature of prosecutors to still want the satisfaction of a “gotcha” of some kind or another.
Most prosecutors want to obtain convictions, to the exclusion of most every other consideration. They particularly want to convict notorious, infamous, or powerful individuals, which award the most “points,” in terms of name recognition and prestige. While it is most gratifying to convict on the most serious charges imaginable, that’s not always possible, let alone easy. To the extent a prosecutor retains a vestige of idealism, he wants to get bad actors. How, then, do they determine who the bad actors are?
Think back for a moment to Al Capone. The list of his felonies was very long, yet he went to jail for income tax evasion; much easier to prove than heading a crime empire. Capone’s legion bad acts were common public knowledge, but the prosecutor simply had to find a convenient — and easy-to-prove –charge to stick him with and send him to prison.
In light of this principle, how might an impartial prosecutor have viewed Hillary Clinton? He would know that the reason she did not use government email in the first place was to avoid the strictures of the Federal Records Act and the Freedom of Information Act. He would be acutely aware of the months of public misdirection and many outright lies Clinton told. He would be aware of the nature of the Clinton Foundation and the repeated “donations” made by parties with business before the Department of State. Beyond appearing improper, many of these may yet turn out to have been quid pro quos. In short, there was ample basis on which to conclude she had a guilty state of mind. The presence of that state of mind is often the main determinant of whether or not the subject of an investigation becomes a defendant of formal criminal allegations; i.e., whether or not one is charged with a crime.
The very fact that Comey de-emphasized Clinton’s essential motive — to conduct her official duties in secret, without documentation — casts grave doubt on his impartiality. In a very real sense, he participated in misdirection by focusing only on acts which could be dismissed as “careless.” Further suspicion is evinced from President Obama’s April interview with Chris Wallace, where the president states unequivocally that Clinton did not damage national security, with special emphasis on the words “intent” and “careless” (wink, wink).
As with Al Capone, every sentient person knows Clinton wanted, above all, to hide her paper trail, and this betrays her guilty state of mind or mens rea. That was the reason for the private servers in the first place. There was nothing negligent about their creation and use: It was intentional and it was done for the guilty purpose of failing to maintain required public records. Keeping such records is an essential element of honest government and this is precisely the type of corrupt motive prosecutors use in deciding to prosecute; it betrays a most corrupt purpose in a politician, especially one who presumes to leadership. Even if Comey thought it might be difficult to obtain a conviction on those charges related to record keeping and accountability, he ought at least to have spoken to its toxic effect on leadership and governance. He could certainly have made out all the elements of a case for the lesser charge of gross negligence as to classified documents. He did it right there on camera!
If Comey wanted to “get” Clinton, he had all he needed. Where he deviated from usual practice — beyond acting as the prosecutor in the first place (and it defies credulity that he did not communicate this to his superiors, the president and the attorney general) — was in not loudly and clearly stating her guilty intent to hide her work and not using that as his own motivation to prosecute on some charge which he could make stick.
What Clinton was actually guilty of — in addition to not properly maintaining classified material — was corruption of the essential process of government accountability through maintenance of, and open access to, records. She did that with malice aforethought , the highest standard of intent. She deleted thousands of emails, with intent, at her own discretion. That itself is obstruction of justice and prima facia, felonious.
Comey knew all this and why he chose to not pursue, much less even mention it, I can’t pretend to know. What I do know is that he did not act in any way consonant with the “reasonable prosecutor” he conjured up. He had some other agenda than equality before the law. To that principle, he has done fatal damage.Published in