Mimesis Law
22 October 2017

Clinton Email Scandal: Independent Federal Investigators & Prosecutors Needed

July 8, 2016 (Mimesis Law) – By now you’ve no doubt heard that the FBI did not recommend Democratic presidential frontrunner Hillary Clinton for prosecution. And Attorney General Loretta Lynch declined to seek an indictment against Clinton. This latest incident involving the Clinton crime family revolves around Hillary’s private email system, which she used for both personal and governmental purposes.

The purpose of this system was two-fold. First, due in large part to the Hatch Act, governmental email systems cannot be used for political purposes. The policy behind the Hatch Act is certainly a good one, i.e. governmental resources should only be used for governmental purposes. But it creates unintentional consequences by permitting two accounts. Because of this, the line between the two gets blurry, regarding which account should be used for what purpose.

Second, the private and political emails were sent through a private server to avoid Freedom of Information Act requests and record keeping requirements. In both the Rove and Clinton email scandals, the “private” emails were wiped clean, leaving us to guess whether they were all truly non-governmental records. To date, no blue dress covered in those missing emails has been uncovered.

So, Hillary Monsanto-Malmaison Clinton deleted emails that she should not have and lied a lot about the whole incident: been there, done that, and have the T-Shirt. The bigger issue was that she was then the Secretary of State and improperly passed classified material through the private email server. And, oh yeah, the security on the server was extremely lax, and the FBI determined that it is possible that the server was hacked. Plus, the FBI determined that commercial accounts Hillary emailed to and from that server were indeed hacked. In the annals of government failure, it may not be the Bay of Pigs, but rarely has a governmental official failed so spectacularly and then shamelessly sought a promotion.

As you might imagine, the federal government is concerned about its secrets being handled carelessly and thus made it a crime to do so. The section at issue here states the following:

Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,

(1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or

(2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

You may note that the statute refers to gross negligence, and the FBI concluded Clinton was “extremely careless.” So, you might be wondering why no criminal charge.

It’s not like this section of the Espionage Act is gathering dust; the DOJ is currently pursuing a case against an active duty navy sailor, who took some ill-advised pictures on a submarine. I guess there’s a legal difference between being a dumb Millennial and a dumb Boomer. Res Ipsa Stupido Generationa. Although, it probably has more to do with Clinton being a presidential candidate than a lowly sailor.

In an aptly titled piece, “Hillary Clinton is too big for the federal brig,” Bill Otis remarked that no prosecutor would want to take on a prosecution that could tilt the national election. Otis joins Scott Greenfield, Orin Kerr, and Dilbert cartoonist Scott Adams in the realpolitick camp, accepting Clinton was too big to brig and that the political process will be where her punishment is meted out.

This is a new variation of collateral consequence argument, whereby a light penal sentence is imposed (or argued for) because the offender is suffering sufficient non-direct punishment to make it just—or unjust, depending on which side of the room you stand on. Of course this is more of a political calculation than a legal one. Clinton will face no legal punishment, so her only punishment may be being denied the Office of the President of the United States. And that may not even happen. If only the legal system could so harshly punish every offender; we’d never suffer even a petty violation ever again.

When prosecutors are accused of over-charging, the ABA standards stating a prosecutor should seek justice are waved in their faces. But how about the flipside; is it not also a command to seek justice? Justice, at least legal justice, usually implicates the legal system. This means there usually is a charge, appearance, sentence, etc. Legal justice is not found in extra-legal remedies or media lynchings. As ego devastating as the October political attack ads might be, it seems a far cry from the indignity suffered when one is deprived of their liberty.

At least in theory, since the Glorious Revolution, the Anglo legal system has maintained that all are subject to the law. In that vein, no politician should be too big to be brought before the legal system. Indeed, Director Comey’s own statements reflect that had Clinton been a lesser government officer, she would have suffered some form of punishment. Never mind the existence of prosecutions against others for similar conduct. Based solely on political calculations, it is unbelievably foul to let a presidential candidate escape legal accountability, while demanding such accountability from the lowly sailor or citizen.

True, we live in an imperfect world with imperfect justice. Wrongs are not always righted and wrongdoers are not always punished. Law enforcement officers and prosecutors can be convinced by evidence just shy of which would prove the case a reasonable doubt and must accept that the suspect cannot be convicted. So, we sometimes have to hope that non-legal punishments are sufficient.

And in large measure, the totality of Director Comey’s statements were aimed at striking the greatest non-legal blow he could strike. Putting aside the ethical issue of whether the FBI should act like the gossipy church lady, this represents a compromise position at best.

Based on the Director’s statements, the FBI completed its investigation with the evidence strongly suggesting (read: probable cause) that Clinton committed a crime. As former Attorney General Mukasey put it, “To be ‘extremely careless’ in the handling of information that sensitive is synonymous with being grossly negligent.” With apparent probable cause to believe a crime had been committed, it is typically incumbent on law enforcement to forward the matter to the prosecutor, who then will determine whether the matter can be proven beyond a reasonable doubt.

Few, besides the Director, know why he chose to publicly state a seemingly strong case against Clinton, which at minimum met a probable cause standard, and then decline to refer the matter to the prosecutors. But the circumstances suggest that it was the best the Director could do.

The current Attorney General not only met with former President Clinton not-so-secretly on a private airplane, but her name has been floated as Hillary Clinton’s possible Attorney General. Neither did a prosecutor meet with Jeffery Skilling’s spouse on a plane in advance of charging him nor was a prosecutor being considered for employment by Skilling. I daresay that had either occurred, it would have been rightly called unseemly.

Comey is a political appointee, chances are he’s got at least a modicum of political instinct. So, it is quite likely the Director could see that there was going to be no prosecution, regardless of what evidence law enforcement turned up. In that case, he could either self-immolate, possibly taking the bureau down with him, or find an imperfect solution. It appears he chose the latter.

This is just the next case in the recent history of the Attorney General seemingly responding to political pressures, rather than primarily making legal decisions. Before this was Bush’s firing of the U.S. Attorneys, and Nixon’s Saturday Night Massacre. Although the need for special, independent prosecutors had occurred before, it wasn’t until 1978 that Congress enacted a law to make special prosecutors independent from the President. If nothing else, these cases demonstrated that prosecutors who forget which side their bread is buttered on often quickly find themselves slumming like Jean Valjean.

This is so because of the unitary theory of the federal executive branch, stemming from the language of Article II. If the President has final say over all executive officers, then prosecutors are not independent. In most, if not all states, the prosecutors are independently elected and enjoy broad independence from the other political offices. Federal prosecutors, as political appointees, are subject to dismissal at any time. So, prosecutors can be subjected to pressure from far away Washington or the corner offices on the top floor. Corrupt governors must fear the U.S. Attorneys, but who do corrupt high-level federal officials fear—practically no one.

Likewise, when a police department descends into mafia-like abuse of the public, the DOJ swoops in and at least makes a dog and pony show out of the mess. And possibly the threat of federal action at least may spur a minimal effort to clean things up. Relatedly, when a local police agency has an apparent conflict, they can call in the state or a neighboring agency. But there is no independent investigatory force to call when if the FBI has an apparent conflict. Instead, FBI investigations into their federal bosses in the executive branch is equivalent to local internal affairs divisions investigating their co-workers.

So, after first concluding that the Director’s decision was more than likely a compromise solution, we then observe that federal prosecutors and law enforcement have comparably less independence than many local and state agencies, at least when it comes to policing the executive branch. The independent counsel statute and the 10-year-nonrenewable term of the FBI Director were marginally successful efforts to change that. But we still find ourselves with a too big to jail politician.

Ultimately, we are faced with the possibility that the Framers of the Constitution just blew this one. For better or worse, this is the federal system we have. So, maybe, we can cut Director Comey a break for making a political decision.

8 Comments on this post.

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  • PVanderwaart
    8 July 2016 at 3:03 pm - Reply

    That’s a body blow to Fault Line’s credibility.

    • shg
      8 July 2016 at 3:14 pm - Reply

      That’s an uninformative comment. What are you trying to say?

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